May the government require an apology as part of a criminal sentence?

Yes, say two judges on a Washington Court of Appeals panel, in last week's State v. KH-H; but the dissenting judge disagrees.

KH-H was found guilty in juvenile court of forced sexually motivated touching of CR, a fellow high school student.

At the disposition hearing, the State asked the court to order KH-H to write CR an apology letter, making clear that it expected "a sincere written letter of apology … mean[ing] an admission that he did what he was accused of what he's doing [sic] and [is] sorry he put her in that position." …

The juvenile court sentenced KH-H to three months of community supervision. The disposition order also required KH-H to "write a letter of apology to [CR] that is approved by the Probation Officer and the State." …

The majority concluded the apology requirement was sound:

The United States Supreme Court has held that "the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all." Wooley v. Maynard (1977). The protection from compelled speech extends to statements of fact as well as of opinion.

In concluding that the challenged disposition condition here did not violate KH-H's First Amendment rights, we are guided by United States v. Clark (9th Cir.1990), overruled on other grounds by United States v. Keys (9th Cir.1998), a Ninth Circuit Court of Appeals opinion that upheld the constitutionality of a similar condition.

In Clark, two police officers were convicted of perjury and were ordered to publish an apology admitting to the truth of their charges as a condition of their probation. The court stated that the test for determining whether the probation condition violated the officers' First Amendment right to refrain from speaking was "'whether the [condition was] primarily designed to affect the rehabilitation of the probationer or insure the protection of the public.'"

In applying this test, the court in Clark stated that a reviewing court "'must determine whether the sentencing judge imposed the conditions for permissible purposes, and then it must determine whether the conditions are reasonably related to the purposes.'" The court noted that this test applies "even where preferred rights are affected." The court held that the probation condition requiring the officers to publish an apology met this test, reasoning:

The record supports the conclusion that the judge imposed the requirement of a public apology for rehabilitation. Neither [of the officers] have admitted guilt or taken responsibility for their actions. Therefore, a public apology may serve a rehabilitative purpose. Because the probation condition was reasonably related to the permissible end of rehabilitation, requiring it was not an abuse of discretion.

… As in Clark, the record here supports the conclusion that the juvenile court imposed the challenged condition for the purpose of rehabilitating KH-H. In discussing the requirement that KH-H write a letter of apology to the victim, the juvenile court noted its concern that KH-H would again offend based on his pattern of being disrespectful to women. And requiring KH-H to apologize to the victim of the offense that he was adjudicated guilty of committing is reasonably related to the rehabilitative purpose of the JAA. Accordingly, we hold that the condition did not violate KH-H's rights under the First Amendment….

The dissent disagreed:

The principles on which Barnette [which barred compulsory flag salutes] and Wooley [which allowed people to refuse to display a state slogan on their license plates] draw, read analogously with Brandenburg [v. Ohio]'s enduring rule that certain speech may be prohibited only if it is likely to incite imminent lawless action, suggest at the least that the State may compel speech only if necessary to prevent a grave and imminent danger. Whether the First Amendment erects a per se bar against compelled speech need not be addressed for purposes of this dissent.

Our case law also recognizes the presumptive limitation of constitutional rights of certain classes, such as prisoners. Similarly, a number of federal circuit court decisions have upheld probation conditions which limit First Amendment rights. Even prisons, though,

are not beyond the reach of the Constitution…. Indeed, we have insisted that prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration.

Even if this authority allows some reduction in the First Amendment rights of adjudicated juveniles, the luster of the principles followed in Barnette and Wooley demands that their sacrifice rest on something more than a presumed rational basis. Yet that is all that the State or the majority offer.

In the name of rehabilitation, the condition here at issue would force a citizen to apologize for an action even if he felt no remorse and to admit to a wrongful action even if he sincerely felt he was not in the wrong. If there is a sound and discriminating empirical basis for concluding that this sort of compulsion will nourish responsibility among juveniles, instead of simply schooling them in cynical manipulation, it is not before us in this appeal. Something more than a law review article or the factual assumptions of other courts is needed. Without that empirical and individualized basis, only the presumed best intentions of our system stand in the way of disquieting comparisons with other attempts at forced thought. The First Amendment requires more from us….

The restriction of what may be said does not restrict what may be thought. The prescription of what must be said, on the other hand, compels what is professed, and with that more closely touches the instruments of thought, more deeply trespasses on our crowning zone of privacy, on the beauties and mysteries of the mind. To guard these treasures, the compulsion of attitude and opinion here at issue, if not barred per se, should be allowed only if the strict standards of Barnette are met. The State's showing does not remotely approach those standards.

Note that this question also arises indirectly in the vast number of cases where a sentence is reduced because the defendant expresses remorse for his actions. Should ordering someone to apologize (and presumably increasing his sentence if he fails to comply with this condition) be treated the same as reducing someone's prison sentence because he says "I apologize"? If so, should this mean that both kinds of sentencing decision should be viewed as unconstitutional? That both should be viewed as constitutional? That both should be viewed as constitutional but bad policy, because they simply encourage false apologies?