Criminal Consequences for Making Babies: Probation Conditions that Restrict Procreation

I. IntroductionWhen people make irresponsible choices, courts customarily hold them accountable for their actions through civil or criminal sanctions. However, occasionally courts punish criminal defendants who have made irresponsible choices by removing or restricting their ability to choose again. Operating pursuant to probation statutes, courts occasionally have burdened probation sentences with conditions that restrict the probationers' most personal decisionmaking.1 Since the late 1960s, appellate courts in the United States have decided sixteen cases involving probation conditions that restricted an extremely private choice: whether or not to have children.2By 1998, the invalidity of a probation condition commanding the defendant not to bear or beget children (hereinafter a "procreation condition") appeared to be a settled matter. Courts had struck down procreation conditions in all thirteen cases in which they had appeared.3 Nevertheless, in 1998, an Oregon appellate court affirmed the validity of a procreation condition.4 When the Supreme Court of Wisconsin addressed a procreation condition three years later, it agreed with the Oregon court's reasoning and upheld the condition.5The Oregon and Wisconsin decisions illustrate that the propriety of limiting a probationer's right to procreate is anything but a settled matter. Given the publicity surrounding Wisconsin's State v. Oakley6 decision,7 the most recent approval of a procreation condition, the question whether such a condition is within the power of the courts is most urgent. The right to decide whether to have children, which the Supreme Court has characterized as being "at the very heart of [a] cluster of constitutionally protected choices,"8 may hang in the balance for the more than two million Americans placed on probation each year.9Part II of this Note will discuss State v. Oakley and State v. Kline,10 the two cases in which courts have upheld procreation conditions. Part II then will discuss the reasons that each court gave for its decision. Part III will explain the constitutional protection of individuals' decisions whether to have children. In a line of cases stretching back to the 1940s, the Supreme Court has recognized this fundamental right as a component of the right of privacy.11 Part III also will explain why courts often consider the procreative rights of probationers to be less compelling than those of ordinary people.12Part IV will discuss the cases in which appellate courts have invalidated procreation conditions. Although these cases come from several different jurisdictions, they share some important characteristics.13 For example, many courts have stated similar goals of probation, goals that in turn have provided a basis for striking down the procreation conditions.14 Many cases also have involved the same underlying crime: child abuse.15 Finally, several reviewing courts have acknowledged the enforcement problems inherent in procreation conditions.16Part V will consider the validity and practicality of procreation conditions.17 Considerations include drafting the conditions to be sufficiently narrow, realistically enforceable, and logical. Although the purposes of probation vary among jurisdictions, any condition should fulfill a few basic common goals - for example, rehabilitation of the offender and protection of society. Procreation conditions cannot realistically be narrow enough to meet those goals. In addition, Part V will discuss some of the numerous and troubling problems of enforcing procreation conditions.18 Among the reasons the Oakley court gave for its decision was the assertion that criminals necessarily lose their procreative rights when they are imprisoned. Therefore, Part V will discuss the case of Gerber v. Hickman,19 decided by the Court of Appeals for the Ninth Circuit, in which a number of dissenters suggested that courts may not suspend a convicted criminal's fundamental right to procreate, even during his incarceration. …