Anti-prostitution zones: justifications for abolition.

• Author: Moser, Sandra L.
• Position: Florida

Three small Florida towns--Hollywood, Dania Beach and Hallandale Beach--are banding together to rid themselves of prostitutes. (1) On the table, for the second time in two years, is a proposal that would declare the cities' respective segments of Federal Highway "prostitution-free zones." (2) Under the proposed mapping program, repeat offenders are targeted by law enforcement, arrested, prosecuted, and forced to steer clear of the so-called zones as a condition of probation. (3) Following the imposition of such a condition, mere presence in a prostitution-free zone constitutes a probation violation and warrants immediate arrest. (4)

The proposal is not the first of its kind in Florida. In 1995, Fort Lauderdale was the first to act against prostitutes by creating SOAP (Stay Out of Areas of Prostitution). (5) Sarasota followed suit in late 1998 with the establishment of "Prostitution Exclusion Zones." (6) The Hollywood-Dania Beach scheme comes on the heels of Miami Beach's recent action designating eighteen blocks of South Beach a "hooker-free zone." (7)

Local officials in Florida claim that prostitution has become a serious threat to the "family-friendly" environment their cities seek to promote. (8) Proponents of anti-prostitution zones in the Hollywood-Dania area believe barfing prostitutes from the Federal Highway corridor will draw new businesses to their region. (9)

This Comment argues that attracting tourism and new industry, however, should not and cannot be achieved at the expense of legal rights. This Comment advocates the abolition of anti-prostitution zones and is presented in four parts. Part I examines the history of probation and its rehabilitative roots. It also discusses the philosophical shift away from the traditional rehabilitative purpose of sentencing, and the recent increase in the use of probationary conditions as punitive measures by the courts in sentencing proceedings.

Part II explores the legal challenges confronting anti-prostitution zones. Such zones violate individual constitutional rights. Moreover, conditions of probation limiting the geographic mobility of prostitution offenders are not reasonably related to the legislative intent of rehabilitation.

Part III analyzes Lisa Ann Dietz's recent challenge to Sarasota's "Prostitution Exclusion Zone" and the inadequacy of the opinion issued by Sarasota's Twelfth Judicial Circuit in response to that challenge.

Finally, Part IV discusses the degree to which communities ignore the rehabilitative ideal when it comes to prostitution, as evidenced by the extraordinary resources they divert to combat and punish prostitutes. Unwilling to pay heed to feminist arguments decrying the criminalization of prostitution, such communities ultimately must reallocate resources for rehabilitation.

1. THE ROOTS AND EVOLUTION OF PROBATION: AN OUTGROWTH OF THE REHABILITATIVE IDEAL

   In 1878, Massachusetts became the first state to enact a probation statute. (10) Today, all fifty states, (11) and the federal government, (12) have probation statutes of their own. Courts possess no inherent authority to place individuals on probation. Their authority is derived solely from statutes. (13)

   Because probation is a statutory device, discerning the purposes of probation requires an examination of the legislative intent behind the statutes themselves. This is the task with which appellate courts across the country are faced when deciding whether to uphold conditions of probation. Thus, how a court characterizes the purpose of its state's probation statute is of paramount importance to the offender who stands before it.

   Historically, courts used probation to fulfill the dual purposes of (1) offender rehabilitation and (2) protection of the community from future criminal conduct. (14) An examination of the historical roots of probation lends support to this interpretation. Probation's history, encompassing both its antecedents in English common law as well as its origins in the United States, exposes an institution preoccupied with the notion of offender rehabilitation and individualized justice. (15)

   In early English common law, judges employed a number of practices including "benefit of clergy," (16) "judicial reprieve," (17) and "recognizance." (18) These equitable principles were the forerunners of probation, affording judges wide latitude and discretion in their dealings with individual offenders.

   Probation is a manifestation of the penal philosophy of rehabilitation. The rehabilitative ideal embodies the notion that the primary function of the penal system is to change not only convicted offenders' behavior, but their outlook and character, as well. (19) In doing so, society is able to promote offenders' interests and its own defense against unwanted conduct at the same time. (20) Stated more simply, rehabilitation is "the opposite of punishment." (21)

   Perhaps the most significant and most prevalent expressions of this rehabilitative ideal in the United States was the materialization of indeterminate sentencing. (22) Emerging in 1870, (23) the notion of indeterminate sentencing reflected the historic and "almost infinite" power of judges to exercise discretion in devising individual sentences. (24) Under the concept, the sentence the court imposed upon the offender at conviction did not determine the true length of his sentence. Rather, the offender's progress toward rehabilitation during incarceration controlled, and judges were empowered to adjust sentences accordingly. (25) By the early twentieth century, rehabilitative reformers, who believed that determinate sentencing was antithetical to the rehabilitative ideal, succeeded in establishing the concept of indeterminate sentencing as the norm in the United States. (26)

   Essential to the concept of indeterminate sentencing was judicial discretion. And, this discretion was to be used to serve the rehabilitative ideal. Indeterminate sentencing and the accompanying judicial discretion, however, were only one expression of the rehabilitative ideal. It was out of this same ideal that probation emerged and grew. (27) Indeed, a "quest for rehabilitation of offenders and a focus on individualized sentences formed the core of the probation movement in America." (28)

   In 1841, John Augustus, known as the "Father of Probation," introduced America to the formal concept of probation. (29) During that year, Augustus encountered a man about to be sentenced and finding the man "not yet past all hope of reformation," bailed him out and procured the man a reduced sentence. (30) Over the next eighteen years, in lieu of incarceration, judges released over two thousand offenders to Augustus' custody. (31)

   In 1880, two years after statutorily enacting the nation's first probation law, the Massachusetts legislature approved the nation's first law directing states to hire probation officers. (32) The law stated that officers must "carefully inquire into the character and offence of every person arrested for crime ... with a view to ascertaining whether the accused may reasonably be expected to reform without punishment." (33) To function effectively, the rehabilitation model of the early twentieth century required both probation officers and sentencing judges to acquire detailed information about offenders. This information was then used to structure individualized sentences. (34) As the Supreme Court noted in Williams v. New York, "Highly relevant--if not essential--to selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics." (35) The Williams Court no longer recognized retribution as "the dominant objective of the criminal law." (36)

   The rehabilitation model upon which the probation movement was based began to undergo attacks beginning in the late 1970s and continuing on into the 1980s. (37) Contributing to the backlash was the publication of social science studies that concluded incarceration did nothing to rehabilitate offenders. Additional factors included the growing public perception that the rehabilitative ideal was too lenient, and a massive increase in the crime rate. (38) Increased support for a model of punishment based on retribution and incapacitation emerged. The influences of such a model are evident in recent American history. Since Williams, the United States commenced what now seems a relentless "War on Drugs," imposed huge increases in prison terms through the use of the "three-strikes" laws, and approached capital punishment with newfound gusto. (39) In short, retribution has been resurrected as the dominant objective of criminal law with respect to incarcerated offenders while "[t]herapy, reform and rehabilitation [of the incarcerated] have fallen into discredit and disrepute." (40)

   The Sentencing Reform Act of 1984, (41) mandating the replacement of previously judge-determined, individualized sentences with sentences uniform and proportional in nature, directly reflects this outlook. (42) Congress ordered the Commission on Sentencing to ensure that the Federal sentencing practices and policies carry out the "four purposes of sentencing": rehabilitation, retribution, incapacitation and deterrence. (43) The result was the effective eradication of the very concept of indeterminate sentencing. (44) Notwithstanding the introduction of uniformity in sentencing, and the resultant usurpation of judicial discretion, Congress still instructed sentencing judges to "consider" all four goals before imposing a particular sentence. (45) Rehabilitation and retribution, however, are fundamentally inconsistent concepts. (46) Determinate sentencing is just as antithetical to the rehabilitative ideal today as it was during the early twentieth century. (47) Ultimately, promotion of one purpose at the expense of the other becomes inevitable. (48) Notwathstanding Congress' assertions to the contrary, the Guidelines do not assign equal...