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. 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.
Gordon Hill, The Use of Pre-Existing Exclusionary Zones as Probationary Conditions for Prostitution Offenses: A Call for the Sincere Application of Heightened Scrutiny, 28 SEATTLE U. L. REV. 173 (2004).