Mr. Smith pleaded guilty to Rape of a Child in the First Degree in 2021. His prison sentence was suspended, pursuant to RCW 9.94.A.670, based on a psychosexual evaluation indicating he was amenable to community based sex offender treatment. He was placed on community supervision by the WA. Department of Corrections (DOC’). In 2024, Mr. Smith was caught by his probation officer using an unapproved smartphone to view child pornography and was communicating with minor children over the internet. His suspended sentence was revoked, and he was ordered to serve his prison sentence. He appealed the revocation and imprisonment, arguing his sentencing conditions restricting his use of computers and the internet was unconstitutional.
The very report used to obtain Mr. Smith’s suspended prison sentence, commonly known as a ‘SSOSA’ (for Special Sex Offender Sentencing Alternative), led to his undoing. Mr. Smith was aware that he would be comprehensively monitored by DOC. The SSOSA sex offender evaluation was performed by a psychologist who noted Mr. Smiths “long history” of pursuing “sexually explicit images of minors and using the internet to communicate with minor children for sexual purposes.” State v Justin Smith at pg. 4. Mr. Smith’s psychologist, while recommending a SSOSA, also recommended certain conditions, such as that he be “restricted or monitored” in his “access to various technologies that cater to or provide access to casual or illegal sexual activities.”
The Court granted Mr. Smith a SSOSA over the State’s objection. The State argued adequately supervising Mr. Smith would be too difficult. The conditions, that led to Mr. Smith’s undoing, are below:
Do not possess, use, access or view any sexually explicit material as defined by RCW 9.68.130 or erotic materials as defined by RCW 9.68.050 or any material depicting any person engaged in sexually explicit conduct as defined by RCW 9.68A.011(4) unless given prior approval by your sexual deviancy provider.
Do not access the Internet on any computer, phone, or computer-related device with access to the Internet or on-line computer service except as necessary for employment purposes (including job searches) in any location, unless such access is approved in advance by the supervising Community Corrections Officer [(CCO)] and your treatment provider. The CCO is permitted to make random searches of any computer, phone, or computer-related device to which the defendant has access to monitor compliance with this condition.
Do not use computer chat rooms.
You may not possess or maintain access to a computer, unless specifically authorized by your supervising [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 burners, or any device to store to reproduce digital media or storage.
Mr. Smith failed a DOC ‘compliance polygraph’ in December 2023. His probation officer (‘CCO’) went to his residence, and seized 3 cellphones, only one of which was authorized. The CCO found multiple conversations with minor females (ages 8 to 16 years of age), plus nude images on one of the phones. Mr. Smith contested revocation of his SSOSA by claiming his conditions were “not crime related,” and were unconstitutional.
Mr. Smith’s challenge involved the concept of “invited error”, i.e despite concerns about the constitutionality of the conditions in his SSOSA, Mr. Smith did not object in order to avoid prison time.
The Court relied upon Mr. Smith’s highly detailed psychological report and found it persuasive, including the psychologist’s recommended restrictions on Mr. Smith’s viewing. The Court held “given the [the psychologist’s] report identified Smith’s use of computers and the internet as a precursor to his offense cycle, the sentencing court was arguably obligated under RCW9.94A.670(5)(d.) to impose conditions restricting Smith’s use of computers and the internet.” Smith, at 19. “Smith contributed to the imposition of the sentencing conditions he now claims are unconstitutional “, and “under the invited error doctrine, Smith is precluded from challenging the constitutionality of his sentencing conditions” Smith, at. 20
Mr. Smith’s SSOSA revocation was upheld and he was ordered to serve the balance of his 108 month suspended prison sentence.
I understand Mr. Smith’s legal team wanted the SSOSA and were concerned about the ‘optic’ of arguing against conditions recommended by his evaluator. The only time I have successfully argued against a ‘no computer, no internet prohibition’ in a child molest case is when my client needed his computer for work, ‘covenant eye’ systems could be installed against internet pornography surfing, and there was no known history of internet pornography use.