Two Appellate Cases Broaden Understanding of Rules for Community Custody

In re the Personal Restraint Petition of Buckingham; State v. Reeves (2017)
Community Custody is an important term in the criminal code of Washington State. It replaces “parole” and “probation” for persons found guilty of felony crimes. A person on community custody has either pled guilty or been found guilty of an offense and is monitored for a period of time by a state official, a community corrections officer.  A “community custody condition” is a condition the court imposes on an offender at sentencing. These conditions apply during the period of community custody and must be related to the crime charged.

Community custody conditions are frequently appealed on the basis that they unconstitutionally limit an offender’s rights, or because they are so vague that they do not adequately inform the offender what conduct the condition prohibits and what conduct it condones. A law may also be unconstitutionally vague if it can be arbitrarily enforced. Two recent Washington State Court of Appeals decisions help offenders and their lawyers better understand what aspects of these conditions are unconstitutional.

Kyle Buckingham challenged several community custody conditions imposed as part of his 2007 sentence for first degree Rape of a Child, asserting the conditions were either unconstitutionally vague or not crime-related, and therefore invalid. Mr. Buckingham’s conviction was based on sexual contact he had with a young girl.

Condition 6

Condition 6 prohibited Mr. Buckingham from frequenting places “where minor children are known to congregate, as defined by the supervising Community Corrections Officer.” In a previous case, the Court of Appeals had already struck the same condition as unconstitutionally vague. Without some clarifying language, or an illustrative list of prohibited locations, the appeals courts found the condition to be unconstitutionally vague.

Condition 7

The first sentence of Condition 7 prohibited Mr. Buckingham from “possessing or accessing pornographic materials, as directed by the supervising Community Corrections Officer.” The Washington State Supreme Court had already found that a virtually identical prohibition was unconstitutionally vague, so by extension, the first sentence of Mr. Buckingham’s Condition 7 was also too vague.

Condition 9

Condition 9 barred Mr. Buckingham from “possessing or controlling any item designated or used to entertain, attract or lure children.” This condition was unconstitutional because there was no evidence in the record to show that Mr. Buckingham used any particular item to attract the girl at issue in his case. For this reason, the condition lacked any notice of what behavior would violate it, and was also unconstitutionally vague.

Conditions 18 and 22

Mr. Buckingham also challenged Conditions 18 and 22, which required him to seek permission before using computers and the internet. The second part of condition 22 also banned him from possessing “any computer parts or peripherals, including hard drives, storage devices, digital cameras, web cams, wireless video devices or receivers, CD/DVD burners, or any device to store or reproduce digital media or storage.”

Mr. Buckingham argued these conditions were facially invalid because he did not use a computer, the internet, or any computer part in the commission of his crime. Under RCW 9.94A.703(3)(f), a prohibition on access to the internet or possession of computer storage drives must be crime-related.  There was no evidence in Mr. Buckingham’s case that access to a computer or the internet was used in the crime or associated with it in any way. Mr. Buckingham did not contact the girl in his case over the internet. Therefore, Conditions 18 and 22 were not crime related and were stricken.

Condition 26

Condition 26 required Mr. Buckingham to participate in urinalysis, breathalyzer, plethysmograph and polygraph examinations as directed by his community corrections officer. Unlike urinalysis, breathalyzer, and polygraph examinations, plethysmograph testing does not serve a monitoring purpose because it is extremely intrusive: it involves placing a band around the penis to measure blood engorgement—sexual arousal—when the man hears sex scenes, some deviant and some not. The testing can only be ordered for the purpose of providing the offender crime-related treatment.

The plethysmograph testing ordered here was not done in conjunction with sexual deviancy therapy. It therefore unreasonably interfered with Mr. Buckingham’s right to be free from bodily intrusion, and the condition was also be stricken.

Joshua Reeves challenged the community custody conditions imposed with his convictions for attempted first degree child rape and attempted first degree child molestation. He asserted the trial court had abused its discretion by requiring a mental health evaluation and treatment, as well as by ordering plethysmography examinations. Mr. Reeves, like Mr. Buckingham, argued the purpose of plethysmography examinations was to monitor him, rather than to provide him with crime-related treatment for sexual deviancy.

Mental Health Evaluation

A pre-sentence report compiled for a competence hearing in Mr. Reeve’s case indicated that he suffered from mental disorders, and at sentencing, the trial court determined that he might make progress in the correctional system. In doing so, however, the trial court failed to follow the requirements of RCW 9.94B.080, which requires courts to first find a defendant a “mentally ill person” as defined by RCW 71.24.025 before ordering mental health evaluations as part of community custody.

Therefore, the trial court lacked authority under the law to order a mental health evaluation or treatment in Mr. Reeves’s case. Because public safety and Mr. Reeves’s own well-being might ultimately be served by his undergoing a mental health evaluation and treatment, the appeals court sent the issue back to the trial court to reconsider it under the correct standard.

Plethysmograph Testing

As also established in Mr. Buckingham’s case, plethysmograph testing is only appropriate as a community custody condition in the context of a comprehensive evaluation or treatment process. A sentencing court may not require plethysmograph testing unless it also requires crime-related treatment for sexual deviancy. It may not be used by a community corrections officer as a tool to routinely monitor the offender.

In this case, the trial court required Mr. Reeves to submit to plethysmography examinations solely at the request of his community corrections officer, but there was no mention of crime-related treatment for sexual deviancy. Therefore, the trial court abused its discretion by requiring plethysmography examinations of Mr. Reeves as a community custody condition.