By Tom Goldstein, Esq.
The 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.
David 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 in dissent.
The 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.
Acknowledging 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."
The 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.
The 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 of incarceration).
On 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 obligations.
Oakleys 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.
Tom 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.2001
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