“Don’t frequent areas where minors are known to congregate.”
Samuel Irwin had sexual contact with three underage girls in various state of undress. It appears he may have photographed his victims. After a number of criminal filings, he entered a plea of guilty to three counts of child molestation in the second degree and one count of possessing depictions of minors engaged in sexual conduct in the second degree. He received a 116-month sentence.
As a part of his original sentence, Mr. Irwin was ordered to receive 4 months of community custody upon his release from prison. He was ordered to follow Washington Department of Corrections “community custody conditions”, including:
- Do not frequent areas where minor children are known to congregate, as defined by the supervising [Community Corrections Officer (CCO)].
….
- You may not possess or maintain access to a computer unless specifically authorized by CCO. You may not possess any computer parts or peripherals, including but not limited to hard drives, storage devices, digital cameras, web cams, wireless video devices or receivers, CD/DVD [(compact disk/digital video disk)] burners, or any device to store or reproduce digital media or images.
At sentencing, Mr. Irwin’s attorney objected to numbers 5 and 11 above, because 5 was “unconstitutionally vague”, and 11 was “not crime related and too broad.” The appellate court, after very lengthy analysis, agreed that #5 was too vague. The Court found technology contributed to Mr. Irwin’s crime; therefore, #11 was upheld as an enforceable and valid community custody condition. The appellate court remanded Mr. Irwin’s case for resentencing on the overly broad community custody condition.
The appellate court gave the following direction to the original sentencing court: “ordinary people [must] understand where children are known to congregate.” State v. Irwin, 191 Wn. App. 644, 654 (2015). The appellate court alluded to Mr. Irwin’s trial counsel having requested that the Court list prohibited places as examples. The sentencing court did not have any such clarification in its judgment and sentence, even though the court had suggested language that Mr. Irwin not “frequent areas of high concentration of children.” Irwin, at 659. On appeal, Mr. Irwin pointed out that “areas of high concentration of children” could include public parks, bowling alleys, shopping malls, theaters, church and other public places. The appellate court held that “without some clarifying language or an illustrative list of prohibited locations, “prohibiting Mr. Irwin from going to places where children are known to congregate would” not give ordinary people sufficient notice to understand what conduct is prescribed.” Irwin, at 655.
Reliance on the Washington Department of Corrections’ Community Corrections Officer (“CCO”) to set the locations where children are known to congregate does not satisfy constitutional standards for vagueness. That is because, to overcome constitutional vagueness, “a law must (1) provide ordinary people fair warning of proscribed conduct, and (2) have standards that are definite enough to protect against arbitrary enforcement.” City of Spokane v. Douglass, 155 Wn.2d 171, 178 (1990). Having the CCO set locations could fulfill prong #1 regarding notice. But the appellate court was concerned that such reliance “would leave the condition vulnerable to arbitrary enforcement.” Irwin, at 655. The appellate court reversed the trial court, struck the condition as void for vagueness, and remanded Mr. Irwin for resentencing, with its above guidance.
There remains a concern about what the court can pragmatically do to implement a necessary condition. It is necessary to keep a convicted sex offender away from areas where there are often a lot of children, at least until the offender has successfully graduated from treatment. How can a sentencing court actually provide the means to avoid arbitrary enforcement? Courts are going to continue to order sex offenders stay away from places like swimming pools and video game parlors. The only readily apparent mechanism I can see to avoid the second, “arbitrariness” prong is for the sentencing court to have: (a) a list of prohibited places attached to the judgment and sentence; (b) impose distance restrictions for each prohibited place, e.g. one hundred feet from a swimming pool or video game parlor; (c) order that condition compliance will be determined by regular polygraphs; and (d) that modifications to (a), (b), and (c) must be agreed upon in writing by the defendant’s CCO and treatment provider. The problem with this approach is that there will be even greater reliance on polygraphs, which are not acceptable scientific instruments in any setting, other than probation or parole hearings.
This may end up being more restrictive for the offender, as the Department of Corrections will likely develop standard boilerplate language to cover locations and enforcement, and have the sentencing judge attach the same to the offender’s judgment and sentence.
If you have a criminal matter please contact Jan Olson at Ellis, Li & McKinstry PLLC, (206) 682-0565.