"Thor is not subject to destruction as a direct punishment for Richards’ violation of the ordinance until the express prerequisites have been met"

The title of this post is a sentence from a state appellate court decision handed down earlier this week.  Eugene Volokh, via the Volokh Conspiracy post "Let Us Kill Your Dog or Go to Jail for a Year," gets credit for flagging the remarkable sentence and ruling in State v. Richards, No. 56949-3-II (Wash. Ct. App. Nov. 7, 2023)(available here).  Here are the basic facts and part of the sentencing discussion:

Jennifer Richards’ dog, Thor, twice bit another dog unprovoked.  As a result, Wahkiakum County determined that Thor was a dangerous dog under chapter 16.08 of the Revised Code of Wahkiakum County (RCWC).  One evening, Richards left Thor alone and unsecured on her property.  The county charged Richards with violating RCWC 16.08.050(F), an ordinance that makes it unlawful for a dangerous dog to be outside a proper enclosure unless the dog is muzzled and restrained by a substantial leash or physically restrained by a responsible person.  Neither state statute nor the county code authorizes destruction of the dog without an opportunity to cure a violation like this one.

After a bench trial on stipulated facts, the district court found Richards guilty and imposed the maximum jail time of 364 days.  However, the district court told Richards that it would suspend the sentence if Richards were to turn Thor over to animal control the next day....

At sentencing, the prosecution recommended that the district court impose the maximum sentence of 364 days in jail and a $5,000 fine, to be served until Richards gave Thor to the local animal control authority so he could be “put down.”   Richards asked for any sentence to be stayed pending appeal to the Wahkiakum County Superior Court. 

The district court imposed the maximum jail time of 364 days.  But it told Richards, “You shall not be required to go into custody if you provide written proof that the dog, Thor, has been surrendered . . . by tomorrow at 3:00 p.m.”  The district court added that if Richards were to fail to surrender Thor by that time, she would have to report to jail and remain there until she surrendered him.  Although the district court did not explicitly say Thor would be destroyed upon surrender, it appears that the judge, attorneys, and Richards all understood that Thor would be destroyed...

Richards asked if she could have a week to surrender Thor so that her boyfriend, who was away, would have a chance to say goodbye.  The district court denied her request.  It said, “Ms. Richards, you’ve had since . . . April of 2019 to come into compliance with the dangerous dog registration requirements.”  The district court added, “We are giving you a bit over 24 hours so that you can get your affairs in line, with both your daughter and your pet responsibilities here, and that is how much time the [c]ourt is willing to allow under the circumstances of this case.”... 

Richards argues that the district court could not impose a sentence that forced her to choose between having her dog destroyed and going to jail for 364 days.  She contends that while a district court “has broad discretion to impose sentencing conditions tending to prevent future commission of crimes,” it was unjust to order “the relinquishment of Thor as a condition of” avoiding imprisonment.   And she contends that tying her “personal freedom to the tormenting choice to kill her and her daughter’s dog is beyond cruel and unusual” under the federal and state constitutions.  The state responds that the district court had authority to impose Richards’ sentence under State v. Deskins, 180 Wn.2d 68, 322 P.3d 780 (2014). We conclude that the sentence imposed was outside the scope of the district court’s discretion....

While the crime of dangerous dog at large is a gross misdemeanor, under the plain language of RCW 16.08.100(1) and RCWC 16.08.110, Thor is not subject to destruction as a direct punishment for Richards’ violation of the ordinance until the express prerequisites have been met. The district court acted outside the scope of its discretion by imposing a condition for achieving a suspended sentence that was untethered from these state and county laws.  The district court, therefore, abused its discretion when it imposed Richards’ sentence.

Because there is no evidence in the record that the district court would have imposed the 364-day term of confinement without the condition allowing suspension of a sentence, we reverse and remand for a new sentencing hearing. Given that we remand, we need not reach Richards’ constitutional argument that the punishment was cruel and unusual.