135 Wash. 2d 326 | Wash. | 1998
Lead Opinion
In these consolidated cases Petitioners Roland Erik Riles and Richard Lee Gholston each seek review of decisions of the Court of Appeals, Division I, affirming decisions by the King County Superior Court which imposed conditions for mandatory post-release community placement under the Sentencing Reform Act of 1981, RCW chapter 9.94A. We affirm, but strike one condition from the order in each case.
QUESTIONS FRESENTED
The primary question in both cases is whether the trial courts imposed improper conditions on Petitioners during their mandatory community placement upon their release from prison.
In answering that question we must determine (1)
STATEMENT OF FACTS
Roland Erik Riles
On January 14, 1993, Petitioner Roland Erik Riles was convicted by a jury in the King County Superior Court of first degree child rape in violation of RCW 9A.44.073 for anally raping a six-year-old boy.
When a court sentences a person to a term of total confinement to the custody of the department of corrections for an of*333 fense categorized as a sex offense committed on or after July 1, 1990, but before June 6, 1996, . . . the court■ shall in addition to other terms of the sentence, sentence the offender to community placement for two. years or up to the period of earned early release awarded pursuant to RCW 9.94A.150(1) and (2), whichever is longer. . . . Unless a condition is waived by the court, the terms of community placement for offenders sentenced pursuant to this section shall include the following conditions:
(i) The offender shall report to and be available for contact with the assigned community corrections officer as directed;
(ii) The offender shall work at department of corrections-approved education, employment, and/or community service;
(iii) The offender shall not consume controlled substances except pursuant to lawfully issued prescriptions;
(iv) An offender in community custody shall not unlawfully possess controlled substances;
(v) The offender shall pay supervision fees as determined by the department of corrections; and
(vi) The residence location and living arrangements are subject to the prior approval of the department of corrections during the period of community placement. . . .
(Emphasis added.) The trial court imposed those six mandatory conditions and imposed additional ones, including the following:
(6) Have no contact w/victim or any minor-age children w/o approval of CCO and mental health treatment counselor-,
(8) submit to polygraph & plethysmograph testing upon request of therapist and/or CCO, at own expense-,
(9) hold no position of authority or trust involving children;
(10) avoid places where children congregate-,
(11) do not initiate or prolong physical contact w/children for any reason;
(12) do not frequent places where minors are known to*334 congregate without specific permission of sexual deviancy counselor or supervising CCO\ and
(13) Inform CCO of any romantic relationships to verify that there are no minor children involved.[4 ]
(Emphasis added.) Petitioner challenges only conditions six (6), eight (8), ten (10) and twelve (12).
Petitioner argues the trial court erred in requiring him to submit to polygraph and plethysmograph testing under condition eight (8).
[T]hat period during which the offender is subject to the conditions of community custody and/or postrelease supervision, which begins either upon completion of the term of confinement (postrelease supervision) or at such time as the offender is transferred to community custody in lieu of earned early release. Community placement may consist of entirely community custody, entirely postrelease supervision, or a combination of the two.[8 ]
There are six conditions of community placement which must be imposed unless waived by the court.
(c) As part of any sentence imposed under (a) or (b) of this subsection, the court may also order any of the following special conditions:
(i) The offender shall remain within, or outside of, a specified geographical boundary;
(ii) The offender shall not have direct or indirect contact with the victim of the crime or a specified class of individuals;
(iii) The offender shall participate in crime-related treatment or counseling services;
(iv) The offender shall not consumé alcohol;
(v) The offender shall comply with any crime-related prohibitions’, or
(vi) For an offender convicted of a felony sex offense against a minor victim after June 6, 1996, the offender shall comply with any terms and conditions of community placement imposed by the department of corrections relating to contact between the sex offender and a minor victim or a child of similar age or circumstance as a previous victim.[10 ]
“Crime-related prohibition” is defined as “[a]n order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted, and shall not be construed to mean orders directing an offender affirmatively to participate in rehabilitative programs or to otherwise perform affirmative conduct.”
Petitioner Riles contends that submitting to polygraph or plethysmograph testing is affirmative conduct which con
Petitioner also claims conditions six (6), ten (10) and twelve (12) are unconstitutionally vague and that the “no contact” with children condition is unconstitutionally over-broad.
Richard Lee Gholston
On December 14, 1994, Petitioner Richard Lee Gholston was convicted by a jury in the King County Superior Court of two counts of first degree rape, one count of first degree kidnapping and one count of first degree robbery.
(1) Within thirty days of release from confinement, enter into and make reasonable progress in mental health counseling, and/or sexual deviancy therapy, with a therapist approved by your Community Corrections Officer.
(2) Have no contact with the victim, or the victim’s family or any minor-age children without the approval of your Community Corrections Officer and mental health treatment counselor.
(4) Submit to polygraph and plethysmograph testing upon the request of your therapist and/or Community Corrections Officer, at your own expense.[21 ]
(Emphasis added.)
Petitioner challenges condition one (1), contending the court does not have authority to order sex offenders to make “reasonable progress” in treatment and that the order violates procedural due process because it does not provide notice of what constitutes “reasonable progress.”
Petitioner Gholston challenges condition two (2), arguing
Petitioner Gholston also challenged condition four (4) requiring polygraph and plethysmograph testing, with arguments similar to those made by Petitioner Riles, contending the order requiring him to submit to polygraph and plethysmograph testing is invalid.
The Court of Appeals affirmed Petitioner Gholston’s conviction and sentence.
DISCUSSION
Polygraph and Plethysmograph Testing
The Court of Appeals decisions in both Riles and Ghol
In Holland, Division III determined that polygraph testing requires affirmative conduct and cannot be ordered as a “crime-related prohibition” under RCW 9.94A.120(9)(c)(v) because the definition of “crime-related prohibition” under RCW 9.94A.030(11) prohibits any affirmative conduct.
In neither Eaton nor Riles did the court address the question whether submitting to polygraph or plethysmograph
Both Petitioners Riles and Gholston, however, argue the trial court did not have authority to impose such monitoring requirements as polygraph and plethysmograph testing because the statutes do not expressly authorize them.
As a general matter, in interpreting statutes, the principal objective of the court is to ascertain and carry out the intent of the Legislature.
On its face, RCW 9.94A.120 is not ambiguous. It may become ambiguous and subject to interpretation when the validity of monitoring requirements imposed by courts is
RCW 9.94A.010 states the purpose of the SRA, which includes, among other things, imposition of just punishment, protection of the public and offering the offender an opportunity for self-improvement. RCW 9.94A.120(9)(b) imposes an additional requirement of mandatory two-year community placement for sex offenders upon their release from prison. The statute specifies six conditions. This is intended to further the purposes of the Legislature stated in RCW 9.94A.010, that is, to protect the public and to offer the offender an opportunity for self-improvement. The Legislature has granted trial courts discretion, within the framework of the structured sentencing guide of the SRA, to impose additional “special” conditions on offenders in furtherance of legislative purpose.
Respondent State argues that “[wjithout the authority to require an offender to cooperate with supervision by submitting to tests that monitor compliance with the conditions of community placement, the authority to impose such conditions is meaningless.”
A trial court has authority to impose monitoring conditions such as polygraph testing. Although the results of polygraph tests are generally not admissible in a trial, this Court has acknowledged their validity as an investigative tool.
The use of the polygraph examination may enhance the assessment, treatment and monitoring processes by encouraging disclosure of information relevant and necessary to understanding the extent of present risk and compliance with treatment and court requirements. When obtained, the polygraph data achieved through periodic examinations is an important asset in monitoring the sex offender client in the community [50 ]
In 1997, the Legislature amended RCW 9.94A.030 and 9.94A.120. The title to the amendment reads “AN ACT Relating to assuring compliance with sentence conditions; and reenacting and amending RCW 9.94A.030 and 9.94A.120.”
Plethysmograph
The use of physiological assessment measures, such as penile plethysmography, may yield useful information regarding the sexual arousal patterns of sex offenders. This data can be useful in assessing baseline arousal patterns and therapeutic progress.
The trial court imposed upon Petitioner Gholston certain special conditions for his community placement, one of which requires him to undergo “mental health
Petitioner Riles was also ordered to submit to plethysmograph testing,
Petitioner Riles is at least partially correct. It is not permissible for a court to order plethysmograph testing without also imposing crime-related treatment which reasonably would rely upon plethysmograph testing as a physiological assessment measure. Unlike polygraph testing, plethysmograph testing does not serve a monitoring purpose. It is a gauge for determining immediate sexual arousal level in response to various stimuli used as part of a treatment program for sex offenders. Plethysmograph testing serves no purpose in monitoring compliance with ordinary community placement conditions. It is instead a treatment device that can be imposed as part of crime-related treatment or counseling under RCW 9.94A- . 120(9)(c)(iii). This is consistent with WAC 246-930--310(7)(c) which states that treatment “[providers shall recognize that plethysmographic data is only meaningful
No Contact Orders Imposed on Petitioner Riles
Petitioner Riles contends the trial court’s order prohibiting him from contact with “any minor-age children” is unconstitutionally overbroad because it infringes upon his right to free speech and free association.
The First Amendment prevents government from prohibiting protected speech or expressive conduct.
Our first task in overbreadth analysis is to determine whether a statute reaches constitutionally protected speech or expressive conduct.
Petitioner Riles’ argument on overbreadth is without merit. He was convicted of anally raping a six-year-old boy. Prohibiting him from having contact with minor-age children for the period of his community placement upon his release from prison is a reasonable restriction imposed upon him for protection of the public—especially children.
Petitioner Riles also claims the “no contact” condition and the conditions ordering him to “avoid places where [minors] congregate” and “not frequent places where minors are known to congregate” are unconstitutionally vague.
The due process vagueness doctrine under United States Const, amend. 14, § 1 and Const, art. I, § 3 has a twofold purpose: (1) to provide the public with adequate notice of what conduct is proscribed, and (2) to protect the public from arbitrary ad hoc enforcement.
Petitioner Riles contends the “no contact” order is vague because there is more than one dictionary meaning for the word “contact.”
No Contact Order Imposed on Petitioner Gholston
Unlike Petitioner Riles who was convicted of raping a child, Petitioner Gholston was convicted of raping a nineteen-year-old woman. But the trial court ordered him not to have contact with “any minor-age children” as well.
Although a “defendant’s constitutional rights during community placement are subject to the infringements authorized by the SRA,” the defendant’s freedom of association may be restricted only to the extent it is reasonably necessary to accomplish the essential needs of the state and the public order.
Validity of Requirement for Reasonable Progress in Treatment
Petitioner Gholston next contends the require
Petitioner Gholston’s vagueness claim has no merit since reasonable progress simply means he must actively participate in the treatment program. The Constitution does not require “ ‘impossible standards of specificity’ or ‘mathematical certainty’. . . some degree of vagueness is inherent in the use of language.”
SUMMARY AND CONCLUSIONS
Trial courts have authority to require polygraph testing
Plethysmograph testing is regarded as an effective method for diagnosing and treating sex offenders. Trial courts may require sex offenders to undergo plethysmograph testing as part of a treatment program imposed under RCW 9.94A.120(9)(c)(iii). However, a sentencing court may not order plethysmograph testing unless it also requires crime-related treatment for sexual deviancy. Unlike polygraph testing, plethysmograph testing does not serve a general monitoring purpose. It is only useful within the context of a comprehensive evaluation or treatment process.
The order prohibiting Petitioner Roland Erik Riles from having contact with minors or frequenting places where they congregate is not unconstitutionally overbroad because “no contact” orders are authorized by RCW 9.94A.120(9)(c)(ii), and a defendant’s freedom of association may be restricted if reasonably necessary to accomplish the essential needs of the state and public order. The same orders are also not vague since persons of common intelligence would understand the conditions prohibiting Petitioner Riles from going to places where children may commonly be found.
The order prohibiting Petitioner Richard Lee Gholston from having contact with minors is questionably overbroad. RCW 9.94A.120(9)(c)(ii) gives courts authority to order offenders to have no contact with victims or with a specified class of individuals. Petitioner Gholston was convicted of raping a nineteen-year-old woman. There is no reasonable relationship between his offense and the provision for no contact with minors. There is nothing in the record to indicate he is a danger to children now or predictably would be upon his release from prison earlier or in thirty or forty years.
A sentencing court has authority to require an offender
We affirm the decision of the Court of Appeals, Division I, which affirmed the conviction and order of the King County Superior Court imposing community placement conditions upon Petitioner Roland Erik Riles. However, we strike from the Superior Court order the requirement that Petitioner Riles submit to plethysmograph testing upon his release from prison.
We affirm the decision of the Court of Appeals, Division I, which affirmed the conviction and order of the King County Superior Court imposing community placement conditions upon Petitioner Richard Lee Gholston. However, we strike from the Superior Court order the provision prohibiting Petitioner Gholston from having contact with minor-age children upon his release from prison.
Durham, C.J., and Dolliver, Guy, Johnson, Madsen, and Talmadge, JJ., concur.
Clerk’s Papers at 1-3, 27. Petitioner does not challenge his conviction.
Id. at 32.
Id. at 34. This provision was codified as RCW 9.94A.120(8)(b) at the time of Petitioner Riles’ sentencing. It was later recodified as 9.94A.120(9) with the addition of a new subsection in 9.94A.120. See Laws of 1995, ch. 108, § 3.
Clerk’s Papers at 34.
Br. of Appellant Riles at 2-3; Pet. for Review at 1-2.
Br. of Appellant Riles at 1.
Zd. at 4-8.
RCW 9.94A.030(5).
RCW 9.94A.120(9)(b)(i)-(vi). In 1997, the Legislature amended this provision, effective July 27, 1997, adding:
(Emphasis added.) Laws of 1997, ch. 144, § 2.
RCW 9.94A.120(9)(c) (emphasis added).
RCW 9.94A.030(11) (emphasis added). In 1997, the Legislature amended this provision, effective July 27, 1997, adding: “However, affirmative acts necessary to monitor compliance with the order of a court may be required by the department.” Laws of 1997, ch. 144, § 1.
Br. of Appellant Riles at 4-8.
State v. Riles, 86 Wn. App. 10, 15, 936 R2d 11 (1997).
Br. of Appellant Riles at 9-17.
Riles, 86 Wn. App. at 18-19.
Id. at 19.
Id. at 22.
Clerk’s Papers 52-53, 78.
Id. at 80, 89.
Id. at 89-91. Petitioner does not challenge his conviction nor his exceptional sentence.
Id. at 90-91.
Br. of Appellant Gholston at 16-21.
State v. Gholston, 1997 WL 288938, at *4 (Wash. App. Div. I May 27, 1997).
Br. of Appellant Gholston at 22-27.
Gholston, 1997 WL 288938, at *4.
Id. at *5.
Br. of Appellant Gholston at 27-30.
Gholston, 1997 WL 288938, at *6 (Wash. App. Div. I).
Id. at *7.
State v. Riles, 86 Wn. App. 10, 16, 936 P.2d 11 (1997); State v. Gholston, 1997 WL 288938, at *6 (Wash. App. Div. I May 27, 1997).
Riles, 86 Wn. App. at 16-17; Gholston, 1997 WL 288938 at *6.
80 Wn. App. 1, 905 P.2d 920 (1995).
Pet. for Review (Riles) at 6-9; Pet. for Review (Gholston) at 14-17.
Holland, 80 Wn. App. at 4.
82 Wn. App. 723, 733, 919 P.2d 116 (1996), implied overruling on other grounds by State v. Frohs, 83 Wn. App. 803, 811 n.2, 924 P.2d 384 (1996).
Riles, 86 Wn. App. at 16.
State v. Parramore, 53 Wn. App. 527, 532, 768 P.2d 530 (1989).
Supplemental Br. of Pet’r Riles at 11.
Supplemental Br. of Pet’r Riles at 11; Supplemental Br. of Pet’r Gholston at 8-10.
See generally RCW 9.94A. However, subsection (C) of RCW 9.94A.120(8)(a)(i), commonly referred to as the “special sex offender sentencing alternative” (SSOSA), mandates “monitoring plans” for offenders under SSOSA.
State v. Chester, 133 Wn.2d 15, 21, 940 P.2d 1374 (1997).
Wright v. Engum, 124 Wn.2d 343, 351-52, 878 P.2d 1198 (1994).
Cherry v. Municipality of Metro. Seattle, 116 Wn.2d 794, 799, 808 P.2d 746 (1991).
State v. Lively, 130 Wn.2d 1, 14, 921 P.2d 1035 (1996).
RCW 9.94A.120(9)(c).
Supplemental Br. of Resp’t State at 6.
Chester, 133 Wn.2d at 21; Engum, 124 Wn.2d at 351.
State v. Hansen, 122 Wn.2d 712, 717, 862 P.2d 117 (1993); State v. Clark, 96 Wn.2d 686, 690, 638 P.2d 572 (1982).
State v. Sutherland, 94 Wn.2d 527, 528, 617 P.2d 1010 (1980); see also O’Hartigan v. Department of Personnel, 118 Wn.2d 111, 821 P.2d 44 (1991) (upholding statute authorizing polygraph tests of candidates applying for law enforcement positions); State v. Cherry, 61 Wn. App. 301, 810 P.2d 940 (court permitted results of polygraph tests to be used to determine existence of probable cause), review denied, 117 Wn.2d 1018 (1991); State v. Dods, 87 Wn. App. 312, 941 P.2d 1116 (1997) (sex offender in the course of undergoing polygraph tests as condition of sentence revealed sexual abuse of minor).
(Emphasis added.) This provision does not purport to give trial courts actual statutory authority to require polygraph examinations.
Laws op 1997, ch. 144.
Laws of 1997, ch. 144, §§ 1, 2.
Laws of 1997, ch. 144, § 2.
Bowen v. Statewide City Employees Retirement Sys., 72 Wn.2d 397, 403, 433 P.2d 150 (1967); State v. Standifer, 110 Wn.2d 90, 94, 750 P.2d 258 (1988).
Ravsten v. Department of Labor & Indus., 108 Wn.2d 143, 150-51, 736 P.2d 265 (1987).
See 1997 Final Legislative Report, S.B. 5519, 55th Legis., Reg. Sess.:
Summary: The department is authorized to require an offender to perform affirmative acts, such as drug or polygraph tests, necessary to monitor compliance with crime-related prohibitions and other sentence conditions.
A penile plethysmograph “attempts to measure physiological indications of sexual arousal in response to particular stimulus materials. The individual is placed in a room and a mercury strain gauge is placed around the penis so that the circumference of the penis can be measured . . . [T]his mercury strain gauge is capable of measuring slight increases in circumference many times before they are noticeable to the man himself. The individual is then presented with sequential stimulus materials, auditory and visual, encouraging him to think about and look at materials indicative of sexual activity with different ages of people, different genders and different sexual activities.” State v. King, 130 Wn.2d 517, 545 n.13, 925 P.2d 606 (1996) (Sanders, J., dissenting) (quoting State v. Spencer, 119 N.C. App. 662, 665, 459 S.E.2d 812, 814-15 (1995)).
Ron Langevin & R.J. Watson, Major Factors in the Assessment op Paraphilics and Sex Offenders, in Sex Offender Treatment: Biological Dysfunction, Intrapsychic Conflict, Interpersonal Violence 42 (Eli Coleman et al. eds., The Haworth Press, Inc. 1996) (“In the area of sexual behavior, penile plethysmography is one of the most reliable and valid physiological measures available. Zuckerman (1971) noted that, of all the methods available for measuring sexual interest, penile plethysmography was in a league of its own.” See also William D. Pithers & D.R. Laws, Phallometric Assessment, in The Sex Offender: Collections, Treatment and Legal' Practice, 12-2 (Barbara K. Schwartz & Henry R. Cellini, eds., Civil Research Institute, Inc. 1995):
Phallometry [penile plethysmograph] is an essential technology in the assessment and treatment of the sexual aggressor. [One expert] stated that any restrictions imposed on a specially trained clinician’s ability to employ phallometry in assessing and treating sex offenders “would be analogous to depriving a physician the right to obtain x-rays in cases of bone injuries.”
See Walrath v. United States, 830 F. Supp. 444 (N.D. Ill. 1993), affd, Walrath v. Getty, 35 F.3d 277 (7th Cir. 1995) (use of plethysmograph for treatment as condition of parole valid); People v. John W., 185 Cal. App. 3d 801, 229 Cal. Rptr. 783, 785 (1986), implied overruling on other grounds by People v. Stoll, 49 Cal. 3d 1136, 783 P.2d 698, 708 n.18, 265 Cal. Rptr. 111 (1989) (expert testified that plethysmograph testing for diagnosis and treatment of sex offenders was widely accepted); Vermont v. Emery, 156 Vt. 364, 593 A.2d 77 (1991) (noting use of penile plethysmograph in sex offender treatment programs); see also the following courts which have authorized plethysmograph testing: State v. Young, 125 Wn.2d 688, 888 P.2d 142 (1995); State v. S.H., 75 Wn. App. 1, 877 P.2d 205 (1994), overruled on other grounds by State v. Sledge, 83 Wn. App. 639, 645, 922 P.2d 832 (1996); Rund v. Board of Parole & Post-Prison Supervision, 152 Or. App. 231, 953 P.2d 766 (1998); Stowers v. State, 215 Ga. App. 338, 449 S.E.2d 690 (1994); Leyba v. State, 882 P.2d 863 (Wyo. 1994); Von Arx v. Schwarz, 185 Wis. 2d 645, 517 N.W.2d 540 (1994).
Clerk’s Papers at 90-91.
This section provides, “The offender shall participate in crime-related treatment or counseling services.”
Clerk’s Papers at 34.
Id.
Supplemental Br. of Pet’r Riles at 13.
Pet. for Review at 9-13.
State v. Riles, 86 Wn. App. 10, 19, 936 P.2d 11 (1997).
State v. Halstien, 122 Wn.2d 109, 121, 857 P.2d 270 (1993).
City of Tacoma v. Luvene, 118 Wn.2d 826, 839, 827 P.2d 1374 (1992).
Id.
State v. Walsh, 123 Wn.2d 741, 750, 870 P.2d 974 (1994).
Halstien, 122 Wn.2d at 122.
Id. at 123.
Luvene, 118 Wn.2d at 840 n.5.
State v. Ross, 129 Wn.2d 279, 287, 916 P.2d 405 (1996) (quoting In re Caudle, 71 Wn. App. 679, 683, 863 P.2d 570 (1993) (Sweeney, J., concurring)).
State v. Riley, 121 Wn.2d 22, 37-38, 846 P.2d 1365 (1993) (quoting Malone v. United States, 502 F.2d 554, 556 (9th Cir. 1974), cert. denied, 419 U.S. 1124 (1975)).
Fet. for Review at 13-17.
Riles, 86 Wn. App. at 17.
Halstien, 122 Wn.2d at 116-17; City of Seattle v. Huff, 111 Wn.2d 923, 929, 767 P.2d 572 (1989).
Halstien, 122 Wn.2d at 118.
City of Seattle v. Eze, 111 Wn.2d 22, 27, 759 P.2d 366, 78 A.L.R.4th 1115 (1988).
Halstien, 122 Wn.2d at 118.
Pet. for Review at 13-15.
Id.
RCW 9.94A.120(9)(c)(ii).
Pet. for Review at 16.
Clerk’s Papers at 90-91.
Pet. for Review at 8-14.
State v. Gholston, 1997 WL 288938, at *4 (Wash. App. Div. I May 27, 1997).
Ross, 129 Wn.2d at 287; Riley, 121 Wn.2d at 37-38.
Walsh, 123 Wn.2d at 750.
Supplemental Br. of Pet’r Gholston at 12-17.
RCW 9.94A.120(9)(c)(iii) provides “The offender shall participate in crime-related treatment or counseling services.”
In re Personal Restraint of Well, 133 Wn.2d 433, 438, 946 P.2d 750 (1997).
Webster’s II New Riverside University Dictionary 857 (1984).
Medcalf v. Department of Licensing, 133 Wn.2d 290, 298, 944 P.2d 1014 (1997).
State v. Eaton, 82 Wn. App. 723, 734-35, 919 P.2d 116 (1996).
State v. Halstien, 122 Wn.2d 109, 118, 857 P.2d 270 (1993).
Concurrence in Part
(concurring in part, dissenting in part) — I agree with the decision of the majority, except in one particular. In my judgment, both trial courts erred in requiring the defendant before them for sentencing to submit to polygraph testing as a condition of community placement. I reach that conclusion because the sentencing court is limited by RCW 9.94A.120(9)(c)(v) to requiring offenders to comply with “crime-related prohibitions.” An order requiring a defendant to engage in “affirmative conduct” is not a crime-related prohibition. See RCW 9.94A.030(11).
Submitting to a polygraph test is, in my view, affirmative conduct. In that regard, I entirely agree with the observa
In support of its conclusion that the trial courts had authority to impose polygraph testing, the majority notes the recent amendments to RCW 9.94A.030(11), RCW 9.94A.120(9)(b), RCW 9.94A.120(14). Clearly the thrust of these amendments was to provide authority to sentencing courts to order affirmative acts necessary to monitor compliance with sentencing conditions. By these amendments, the majority suggests, the Legislature was merely confirming the past practice of allowing polygraph testing to assure compliance with sentencing conditions. The logic of that conclusion escapes me because it has the effect of giving retroactive effect to the amendments. This runs counter to the general rule that an amendment to a statute applies prospectively only. In re F.D. Processing, Inc., 119 Wn.2d 452, 832 P.2d 1303 (1992). Although an amendment may apply retroactively if it merely clarifies an older ambiguous statute, there was nothing ambiguous about the aforementioned statutes prior to their amendment. In clear terms they forbade the trial court from ordering offenders to engage in affirmative conduct. We should not give those enactments the back of our judicial hand merely because the Legislature later saw fit to make substantive changes to those statutes after these offenders were sentenced to community placement. See Magula v. Benton Franklin Title Co., 131 Wn.2d 171, 930 P.2d 307 (1997).
Sanders, J., concurs with Alexander, J.
