v. Oakley: Deadbeat Dads and the
Right to Procreate
Tom Goldstein, Esq.
Wisconsin Supreme Courts recent opinion in State v.
Oakley, No. 99-3328-CR (Wis. July 20, 2001), presents important
and novel questions regarding how far the government may go in imposing
a criminal sanction or condition of parole that restricts an individuals
ability to have children.
Oakley was convicted of intentionally refusing to pay court-ordered
support for seven of his nine children, which he had fathered with
four different women. The trial judge declined to impose a jail
sentence but conditioned Oakleys parole on his not having
any more children until he proved he was ready, willing, and able
to support them. The Wisconsin Supreme Court, divided by a vote
of four to three, affirmed the probation condition, rejecting Oakleys
argument that it impermissibly infringed upon his fundamental right
to procreate. Interestingly, the court divided along gender lines
as well, with its male members in the majority and its female members
Court sustained the probation based on its view that Oakleys
conduct represented the "ongoing victimization of his children"
and reflected an "extraordinarily troubling record manifesting
his disregard for the law" (including because Oakley had previously
been convicted of intimidating a child witness in another matter).
Collecting voluminous data on the failure of deadbeat parents to
comply with their support obligations, the majority emphasized the
states interest in minimizing "a crisis with devastating
implications for our children." The majority also relied heavily
on the fact that the alternative to the parole condition
a six-year prison term would have eliminated entirely Oakleys
right to procreate for that period.
that the right to procreate is fundamental, the majority explained
that probation regularly impinges on constitutional liberties. In
addition, the majority found the condition to be reasonably related
to the states interest in rehabilitating Oakley because it
was targeted directly at the crime for which he was convicted. Parole,
the majority explained, "sought to rehabilitate Oakley while
protecting society and potential victims Oakleys own
children from future wrongdoing."
dissent rested on the view that the "right to have children
is a basic human right and an aspect of the fundamental liberty
which the Constitution jealously guards for all Americans,"
citing the U.S. Supreme Courts description of the right as
a "basic liberty" that is "fundamental to the very
existence and survival of the [human] race." Skinner
v. Oklahoma, 316 U.S. 535, 541 (1942). The dissent also emphasized
that, given Oakleys poverty, "unless he wins the lottery,
he will likely never be able to" satisfy the condition on his
right to procreate, adding as a further concern that such a condition
could lead probationers to encourage pregnant women to have abortions.
The dissent accordingly found that the state was required to use
less restrictive probation conditions instead, such as by requiring
that he maintain two jobs and make consistent child support payments.
Oakley case obviously presents important interests on both
sides. There seems to be a compelling argument that a parent can,
at some extraordinary point, be prohibited from repeatedly having
children and effectively abandoning them (economically, if not physically).
The parent clearly can be incarcerated, a sanction that even more
directly impinges on the right to procreate (and many other rights)
and threatens the interests of the children (who will likely lose
the benefit of any economic support from the parent during the period
the other hand, given the fundamental nature of the right to procreate,
courts have been reluctant to approve restrictions of this sort
the Wisconsin Supreme Court appears to be the first state
supreme court to do so. The alternative probation conditions proposed
by the dissent directed at ensuring that Oakley had an income
to support the children are certainly less restrictive. The
majority, however, expressed a palpable frustration with the failure
of dead-beat parents such as Oakley to comply with their support
attorneys plan to petition the U.S. Supreme Court to review the
case (potentially with the assistance of the author and Harvard
Law School Professor Laurence H. Tribe). First, however, they will
seek rehearing in the Wisconsin Supreme Court. Apparently, the court
was unaware of the fact that Oakley in fact made child support payments
both before and after the imposition of the parole condition.
Goldstein is a solo practitioner in Washington, D.C., who practices
exclusively before the U.S. Supreme Court. In the October 2000 Term,
for example, he represented one of the parties in eleven cases in
which the Court granted certiorari.
to Freedom Line