The Use of Pre-existing Exclusionary Zones as Probationary Conditions for Prostitution Offenses: a Call for the Sincere Application of Heightened Scrutiny

• Publication year: 2004

SEATTLE UNIVERSITY LAW REVIEWVolume 28, No. 1FALL 2004

The Use of Pre-Existing Exclusionary Zones as Probationary Conditions for Prostitution Offenses: A Call for the Sincere Application of Heightened Scrutiny

Gordon Hill(fn*)

I. Introduction

In 1832, Chief Justice Marshall, in Worcester v. Georgia,(fn1) unsuccessfully attempted to prevent President Andrew Jackson's removal of Georgia's Native American population in what has subsequently come to be known as the Trail of Tears.(fn2) Several years before this famously unenforced decision, Marshall wrote a letter to Justice Story:It was not until after the adoption of our present government that respect for our own safety permitted us to give full indulgence to those principles of humanity and justice which ought always to govern our conduct towards the aborigines when this course can be pursued without exposing ourselves to the most afflicting calamities. This time however is unquestionably arrived; and every oppression now exercised on a helpless people depending on our magnanimity and justice for the preservation of their existence, impresses a deep stain on the American character. I often think with indignation of our disreputable conduct-as I think it-in the affair of the Creeks of Georgia.(fn3)

A stain it was, but the Trail of Tears is not the lone blemish of banishment soiling the American character.

In the United States, we banish. For example, in 1637, the General Court of Massachusetts, in the Massachusetts Bay Colony, banished Anne Hutchinson after she propounded her unorthodox views on personal justification.(fn4) In 1830, President Andrew Jackson's approval of the Indian Removal Act commenced the Trail of Tears and the brutal banishment of Native Americans living east of the Mississippi that Marshall and the Supreme Court could not stop.(fn5) Similarly, in 1882, Congress enacted the Chinese Exclusion Act, denying citizenship to all Chinese immigrants.(fn6) Another example of banishment occurred on February 19, 1942, when President Roosevelt issued Executive Order 9066, empowering General DeWitt to banish people of Japanese descent from the West Coast.(fn7) These incidents are among the most tragic in a history studded with vagrancy laws, loitering laws, and the unlegislated efforts of countless municipal police officers who, with varying levels of coercion, moved the "unclean" from within their town lines.(fn8)

Inevitably, decades later, we are contrite.(fn9) Yet today the tradition of community cleansing through exclusion thrives in Washington State in the form of municipal probationary "Stay Out of Areas of Prostitution" ("SOAP") orders. As will be described below, SOAP orders take on several different forms in many of the towns and cities of northwestern Washington, but in each locality where the orders are used, they function in much the same way: An individual arrested for a prostitution-related offense is issued a SOAP order as a probationary condition; the order, typically in force for two years, requires the individual to remain outside those areas of the city deemed to be areas of prostitution, and mere presence in such an area will be considered a probationary violation.(fn10)

It may seem that SOAP orders are trivial when compared to the types of banishment discussed above, but alarms should go off whenever we begin blithely attaching metaphors of cleansing to human beings and then wash people from our communities. Unfortunately, in Washington, this community cleansing project has triggered no widespread alarm. Prostitution has always occupied a contested and ambiguous space within our culture. To truly begin to understand the socio-cultural mechanisms and forces that have allowed individuals living in prostitution to be reduced to the status of pollutants would require a sociological analysis beyond the scope of this Comment. Instead, this Comment focuses only on the legal mechanism of probation that is the medium of this cleansing project.

SOAP orders represent a breakdown in the probationary system. Originally, municipal trial courts were given extraordinary discretion in their construction of probationary conditions on the premise that rehabilitation, the original focus of probation, required individually tailored orders.(fn11) SOAP orders as contemplated were to be built upon the sentencing court's factual knowledge about the specific defendant appearing before the court.(fn12) SOAP orders as they have come to be are the antithesis of this dynamic, representing mechanized production-line justice that no longer embraces the goal of individual rehabilitation, and is instead geared toward a project of social engineering that is largely without check. Although this discretion was initially justified by the trial court's particularized knowledge of individual defendants, the deference it has come to command on the appellate level continues despite the total erosion of its theoretical base in the context of SOAP orders.

In Washington, precedent supports the application of a heightened level of appellate scrutiny to probationary conditions that infringe on fundamental liberties, but this scrutiny is often inconsistently applied and frequently heightened in name alone.(fn13) This Comment argues that, because the justification for appellate court deference toward the trial courts' creation of probationary conditions has disappeared in the context of SOAP orders, appellate courts faced with such orders should more rigorously examine the trial court decisions. This heightened scrutiny is justified because SOAP orders infringe on the state-recognized right of intrastate travel. Further, based on an examination of the research on the factors that lead to prostitution and keep individuals in the prostitution industry, a more rigorous review will make it evident that SOAP orders rarely accomplish the historic or currently articulated goals of probation: rehabilitation, prevention of future offense, or community safety.

Part II provides background information on the use of SOAP orders in Western Washington, state and federal court decisions calling for heightened scrutiny of probationary orders that infringe on fundamental rights, challenges to SOAP-related probationary orders in other jurisdictions, and constitutional challenges to probationary orders in Washington. Part III discusses the historical roots of probation and argues, for the above reasons, that appellate deference to SOAP orders cannot be justified on these traditional grounds. Part III also presents information on research into the factors that lead individuals into prostitution and argues that due to these factors, in the majority of instances, SOAP orders are incapable of accomplishing the goals of probation.

II. Background on SOAP Orders and Appellate Review of Probationary Conditions

Before exploring the failure of the probationary system represented by SOAP orders and the general inability of such orders to accomplish the goals of probation, it is necessary to understand both the application of SOAP orders in Washington and the possible avenues of constitutional challenge to probationary conditions that infringe on fundamental rights. Section A outlines the use of SOAP orders in several representative cities, relying principally on Seattle's use of the orders as a model. Section B describes the precedent for heightened review of certain probationary orders and examines the inconsistent nature and rigor of this scrutiny. Section C consists of two parts. First, although SOAP orders have not been challenged at the appellate level in Washington, subpart one of section C examines constitutionally based challenges to various ordinances and probationary conditions that resemble SOAP orders in other states and in federal court. Subpart two of section C examines constitutionally based appellate challenges in Washington courts of probationary conditions that employ pre-existing exclusionary zones that are similar to those used in SOAP orders.

A. SOAP Orders in Washington State

In Washington, as in most states, prostitution is prohibited as a misdemeanor both by state statute(fn14) and municipal ordinances.(fn15) The majority of prosecutions for prostitution take place in municipal courts.(fn16) In Seattle and in several surrounding municipalities, persons who plead guilty to or are convicted for a prostitution violation may receive, as a condition of probation,(fn17) a SOAP order.(fn18) SOAP orders require individuals to remain outside predetermined areas of the city upon penalty of arrest. Some municipalities establish the terms of SOAP orders and their areas by ordinance.(fn19) In other municipalities, such as Seattle, SOAP areas are defined by the city attorney's office and imposed by the municipal court. Additionally, in some cities,(fn20) the order prohibits the individual's presence twenty-four hours a day for the probationary period, while in other cities, the order may cover only certain times of the day.(fn21) The size of the coverage area varies by city. As of 2003, Seattle contained five SOAP areas covering 3.2 square miles total, including one encompassing virtually the entire downtown business district and City Hall.(fn22) SOAP orders are generally in force for two years.(fn23) The following two exhibits show SOAP areas and available crime statistics within the City of Seattle.(fn24)

B. Heightened Scrutiny of...