Public Safety Tools — Is a Stay Out of Drug Area Ordinance the Right Tool for You?
For years, Washington jurisdictions have been challenged by both the use and sales of illegal drugs in public places. One tactic available under state law (chapter 10.66 RCW) and some city ordinances allows a judge to order a specific person who has come into contact with the criminal justice system to stay out of certain areas where drug sales, possession of drugs, pedestrian or vehicular traffic attendant to drug activity, or other activity associated with drug offenses confirms a pattern associated with drug trafficking. These are referred to by different names, such as Drug Trafficking Area, Stay Out of Designated Area, or Stay Out of Drug Area (SODA) laws.
In this blog we’ll look at the components of a SODA ordinance and some of the legal challenges to those ordinances. We’ll also briefly discuss how you can use an equity lens to evaluate whether this tool is a good fit for your community.
How Does a SODA Ordinance Work?
In addition to the authority in chapter 10.66 RCW (which only applies to known drug traffickers), when a court sentences a person to a term of community custody, it has the authority under RCW 9.94A.703(3)(a) to order that person to “remain within, or outside of, a specified geographical boundary.” Additionally, RCW 3.50.320 permits a municipal court to:
...impose sentence by suspending all or a portion of the defendant's sentence or by deferring the sentence of the defendant and may place the defendant on probation for a period of no longer than two years and prescribe the conditions thereof.
One those conditions can include a prohibition against entering designated emphasis areas.
The statute and the local ordinances contain three parts: 1) designation of emphasis areas; 2) criteria for the local court to impose restrictions prohibiting a person from entering those areas and; 3) penalties for violating the restrictions.
In designating the area, the city or county looks at areas where there are repeated incidents of illegal drug-related activity. It then adopts an ordinance or resolution that describes those areas with (hopefully) a good deal of specificity, using a combination of street boundaries and maps. Some ordinances allow the judges of local courts to include other areas that may not have been formally adopted. Some cities and counties designate all parks and trails as emphasis areas.
The court may, if requested by the prosecuting attorney or on its own initiative, order a person to stay out of the designated areas. The order may be part of a pre-trial release (bail) order, or it might be a condition of sentencing after a conviction or deferral.
The order may list the specific designated areas the person is to avoid, or it may broadly prohibit the person from being in any designated emphasis area.
Penalties for violations
Violations of the order can have several consequences. If the order is part of a pre-trial release order, violation could mean the person’s bail would be revoked and they would return to jail to await trial. If the order is part of a post-conviction sentence or deferral, violation could also be punished by a fine or jail time. Many SODA ordinances make violating a SODA order a separate offense, so a violation of such may result in the person being sent to jail for violating a condition of their release or sentence, and the person could be charged with a new and separate crime.
So far, Washington courts have upheld SODA orders when they are sufficiently detailed to allow the person subject to them to know where they are prohibited from going. At least one Washington court has found that chapter 10.66 RCW does not unconstitutionally restrict a person’s right to travel, nor was it overbroad, nor did it violate due process. State v. McBride (1994) 74 Wash. App. 460, 873 P.2d 589.
An order issued under RCW 9.94A.703(3)(a) survived a challenge in a case where the order allowed the Washington State Department of Corrections to designate prohibited locations. Because the order required those locations to be determined “in advance,” the court said the order was not unconstitutionally vague. On the other hand, when a SODA order was unclear or did not provide an illustrative list of prohibited locations, the court (with the agreement of the state) found the order was unconstitutionally vague. State v. Greenfield, 21 Wash. App. 2d 878, 889–90, 508 P.3d 1029, 1035 (2022) citing State v. Irwin, 191 Wash. App. 644, 651, 364 P.3d 830, 835 (2015).
In State v. White, 76 Wash. App. 801, 811, 888 P.2d 169, 175 (1995), aff'd, 129 Wash. 2d 105, 915 P.2d 1099 (1996), the court held that that the trial court did not exceed its authority in imposing the SODA order under RCW 9.94A.120.
Another case, State v. Hammerquist, 3 Wash. App. 2d 1042 (2018), clarified that the order also needs to be related to the crime, saying that agencies should take care to ensure that SODA orders are only requested (or imposed) for drug-related crimes. Community custody orders that are not related to the crime for which the person was convicted will generally be stricken. The court said:
Jericho Hammerquist pleaded guilty to two counts of first degree rape of a child. The sentencing court entered community custody conditions restricting Hammerquist's ability to associate with known drug users or sellers, possess drug paraphernalia, and remain in drug areas. The court also required him to participate in substance abuse treatment. Because the conditions referring to drugs and drug areas are not sufficiently crime related, they should be stricken.
If the order is too specific as to what areas must be avoided, there is nothing stopping the person going to another location where drug activities take place. But if the order is too broad, it could lead to both legal challenges discussed above. From a practical perspective, if the emphasis areas include where the person lives or works, or public transit hubs, then requiring a person to stay out of those areas could have unintended and dire consequences for the person’s job and family.
A common argument is that SODA ordinances disproportionally affect populations that have historically received more unfavorable treatment by the criminal justice system. One way to address this issue is to look at the components of your proposed ordinance using a racial equity toolkit. The City of Seattle has a detailed model that may help your decision-making process.
If resources are available, consider analyzing your charging, pre-trial release, and sentencing histories to see if they have a disproportionate effect. A tool such as the Center for Policing Equity’s Justice Navigator may be helpful.
Also, you might want to consider looking for any court statistics to see if your or other agencies’ SODA ordinances are having the desired effect.
Conclusion and Resources
Like all tools, the effectiveness of a SODA ordinance depends on how well it is designed and used. Below, we’ve listed a few Washington jurisdictions that have adopted one. Give their police departments and prosecutors a call and see if this is an option that might work for you.
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