I agree with the decision of the majority, except in one particular. In my judgment, both trial courts erred in requiring *Page 354 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 observation of Division Three of the Court of Appeals in State v. Holland,80 Wn. App. 1, 905 P.2d 920 (1995), to the effect that submitting to a polygraph examination is not passive uncommitted conduct because such an examination requires one to affirmatively respond to numerous questions.
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). *Page 355
SANDERS, J., concurs with ALEXANDER, J.