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Wednesday, Jul. 18, 2001

On Tuesday, July 10, the Wisconsin Supreme Court issued a ruling upholding a lower court's sentence of a convicted "deadbeat dad" — a father of nine who had failed to pay child support — to prison, followed by probation.

The ruling was important because the sentence of probation included an unusual condition: The convict was required to refrain from procreating, as long as he failed to support his existing offspring, and until he could show that he would support any future children he might create.

While courts' imposing conditions on probation (for example, that the convict remain drug-free) is the norm, this condition was highly controversial. By interfering with reproduction, it evoked images of Nazi Germany and eugenics — the "science" of "improving" the genetic composition of the population.

Should a court be able to tell a person that he may only beget children at the government's pleasure? Isn't procreation a fundamental right? These questions, while important, only begin our analysis of the Wisconsin ruling — which, upon closer inspection, turns out to be more defensible than it might first appear.

Privacy and the Family

In a series of cases, the United States Supreme Court has granted fundamental rights status to personal decisions that concern the creation and raising of a family. The Court has invoked the Due Process Clause of the Fourteenth Amendment in support of these holdings. It has done so, specifically, through the doctrine of "substantive due process."

The Due Process Clause normally requires what is called "procedural due process," the mandate that certain procedures (for example, notice and a hearing) occur before the government may deprive a person of life, liberty, or property. "Substantive due process," by contrast, provides that, with respect to some deprivations, no amount of process is enough.

Privacy rights that have been protected under the "substantive due process" doctrine include contraception, abortion prior to viability, procreation, and important choices regarding the education of one's children — such as whether to send them to private school, whether to opt for foreign language classes, and whether to provide home-based religious instruction.

Skinner: The Supreme Court's Case on Forced Sterilization

Most of the cases announcing substantive privacy rights involved statutes that specifically prohibited activities that the Court determined were constitutionally protected. One such statute, for example, mandated public (as opposed to private) schooling, and another banned the use or sale of contraceptives. The Supreme Court held these statutes unconstitutional, because the government had failed to demonstrate a compelling interest at stake that would necessitate deprivation of a fundamental right.

One of the Court's decisions, however, did not concern a law that directly proscribed protected conduct. Instead, the statute at issue in that case — Skinner v. Oklahoma — provided for sterilization as a penalty for a particular category of crimes. The defendant, Skinner, a recidivist thief, challenged the statute.

A law that required all citizens to be sterilized would be blatantly unconstitutional, under the line of privacy cases described above. But what about a statute like Oklahoma's, that required sterilization only of those citizens convicted of a particular crime?

The Supreme Court held that Oklahoma's sterilization penalty statute was also unconstitutional, though for a different reason: It violated the Fourteenth Amendment's Equal Protection Clause, by unfairly depriving some, but not other, criminals of the fundamental right to procreate.

Rather than sterilize the defendant, of course, Oklahoma could have incarcerated Skinner for his crime. It was thus the penalty, rather than the underlying conduct at issue, that triggered Skinner's constitutional injury.

Distinguishing Skinner

Since Wisconsin's judiciary is bound by the U.S. Supreme Court's interpretation of the Fourteenth Amendment, it was necessary for the Wisconsin Supreme Court to distinguish Skinner. In both cases, after all, a man was convicted of a crime and, following his conviction, was prevented from procreating. There are, however, significant differences between the two cases.

First, unlike Skinner, who was to be sterilized without alternative options, David W. Oakley, the Wisconsin defendant, was ordered not to procreate as a condition of probation. He thus remained free to procreate if he preferred prison to contraception. Alternatively, by paying child support to his children, as he was legally required to do in any event, and by showing a willingness to support any others that might come along, he could also resume procreating.

Unlike Skinner, in other words, Oakley had it within his power to exercise his right to procreate, either by violating probation or by changing his unlawful behavior. Moreover, in contrast to Skinner's permanent sterilization, Oakley's condition was temporary. Once he had served out his sentence, he could continue to procreate regardless of what he had done (or failed to do) for his children in the intervening time.

Purpose Matters

Moreover, the respective procreation restraints in Skinner's and Oakley's cases had very different rationales. Punishing a recidivist thief like Skinner with sterilization makes sense only on a eugenics rationale. But Oakley's probation condition likely had a very different purpose.

Turning first to Skinner, note that procreation had nothing to do with the crime in question, recidivist theft. Nor, for that matter, did this crime have anything to do with sex, such that there could have been a preventive rationale — such as the wish to avoid a future pregnancy resulting from rape. Finally, there was no evidence adduced that the particular crimes at issue in Skinner were more likely than other crimes to be committed as a means of feeding one's growing family.

In 1942, however, when Skinner was decided, theories that criminality was an inherited trait abounded. Many believed that criminals of various sorts should not be allowed to inflict their "defective" offspring — supposedly likely to be criminals as well — upon the rest of society.

By 1942, in Europe, beliefs like these had become a reality. Skinner was decided at the height of Nazi efforts to eliminate "unfit" members of the population through sterilization and extermination. The timing no doubt contributed to the Justices' sense that the Oklahoma scheme was offensive and dangerous.

Enforcing Parental Responsibilities

The purpose of the circuit court in the Wisconsin case was apparently quite different. Under the law, parents are responsible for providing food and shelter to their children. The Wisconsin court seems simply to have been trying to make sure this responsibility would be carried out in Oakley's case.

Oakley had intentionally refused to meet his obligations to his children, thereby harming nine people to whose existence he had given rise. Since he had been duly convicted, he could have been kept in prison for eight years.

But lengthy imprisonment would have thwarted the very purpose of the law that Oakley had violated, thereby eliminating any possibility that he might satisfy his paternal obligations. Accordingly, the Wisconsin court ordered a shorter prison term, to be followed by probation, on the condition that Oakley stop creating more responsibilities until he evidences a willingness to take care of those already in existence.

As in a civil contempt proceeding — in which the defendant is said to "hold the keys to his own jail cell," since he can go free as soon as he cooperates with a court order — Oakley, too, will hold the keys to his own liberty.

The probation condition is thus narrowly tailored to the compelling interest at issue: the interest of nine children in receiving proper support. As soon as that interest is met, David W. Oakley may happily resume populating Wisconsin with his offspring.

Reevaluating Skinner

Though the Oakley case may be distinguished from Skinner, it is useful to ask the larger question of whether it makes sense categorically to prohibit a court from limiting procreation as a response to crime.

In most cases, I suspect that the answer will be yes, for the very reason that makes us oppose eugenics policies. The State should not be deciding the makeup of our gene pool. Rather, the government must treat all people as equals. Any policies involving officially sponsored genetic selection would set a dangerous precedent.

The concern, however, is one of equality rather than any strict interest of all people (including criminals) in being able to procreate. Where the eugenics concern — an equality concern — can be ruled out, the Skinner principle rests on far weaker ground.

Consider the Oakley case. If he were sentenced to a full eight years of prison instead of five years of probation, he would not likely be able to procreate during that period, since prisoners generally have access only to other people of the same sex. The Wisconsin majority pointed out this irony in its opinion.

Moreover, a prisoner must forfeit not only the right to procreate, but also the fundamental right to freedom from physical confinement. A focus upon procreation in this case thus obscures the serious deprivation that incarceration represents.

The right to liberty from physical confinement has long been given short shrift in our legal system. When a person has been duly convicted of a crime carrying a jail term, confinement is automatically authorized. This is true no matter how trivial and innocuous the offending conduct is, as long as it is not itself constitutionally protected.

Jaywalkers, litterbugs, and those who spit into the gutter may thus all be deprived of their freedom from incarceration. Indeed, as we learned from the United States Supreme Court this term, even those who fail to buckle their seatbelts may be arrested and taken to jail.

Lessons from Oakley

Of course, I do not suggest here that litterbugs ought to be sterilized, or even that prohibiting Oakley from procreating is necessarily a good idea. As various dissenters in Oakley suggested, enforcement of the probation condition at issue might prove complicated. This is because Oakley is prohibited from procreating, not from having sex, and it will be a woman — not Oakley — who will ultimately decide whether to give birth to any children conceived with him.

Furthermore, as the concurring Justices argued, financial status should not play a role in determining who can have children. In this case, Oakley was convicted of intentionally refusing to pay child support. But some individuals might wish to pay child support and be unable to do so. It would be unfortunate if Oakley became a precedent for denying such people the right to procreate.

Nevertheless, in considering probation conditions like Oakley's, we should keep in mind the importance of finding alternatives to prison. What is often forgotten is that for many crimes, particularly those that do not involve violence, the lengthy prison sentences routinely imposed do not receive (nor would they survive) any demanding substantive constitutional scrutiny. This is true even though prison often undermines the interests it is employed to protect — with non-violent perpetrators being incarcerated in penitentiaries that are "schools for crime," with little chance of a normal life when they are finally released.

Incarceration represents a serious deprivation of a right that is at least as fundamental as the right to procreate. If the Wisconsin decision provokes us to rethink our unquestioning reliance on incarceration, then it will have been worthwhile indeed.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark, where she teaches Criminal Procedure, among other subjects. Her other columns on constitutional law and criminal procedure topics may be found in the archive of her columns on this site.

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