The unwelcome cohort: when the sentencing judge invades your bedroom.

AuthorBux, Elizabeth M.
PositionOhio

INTRODUCTION

Every convict knows that if you do the crime, you must do the time. But what exactly can the government force you to do to "do the time"? It is clear that people who are incarcerated, on parole, and on probation are subject to restrictions that limit their rights, even those fights protected by the Constitution. (1) These invasions can be obvious safety provisions, such as denying the right to carry a gun in prison, or restrictions to prevent future infractions, such as mandatory rehabilitation programs. Although these provisions are intrusive, they are fairly straightforward and generally accepted; however, some restrictions are not so obviously within the government's power.

For most Americans, the decision whether to have a child is between them, their partners, and the powers that be; however, in a number of recent cases, courts have begun to restrict the right to procreate as it applies to those people who have been convicted of certain offenses relating to their children, namely failing to pay child support. One such case is State v. Talty, (2) in which an Ohio man was sentenced to make reasonable efforts not to have another child as part of the conditions of his probation for failing to support several of his children. (3) This sentence raises several issues relating to civil liberties in criminal sentencing and begs the question: Just how far into one's personal life can the courts go?

This Note discusses the various issues of civil rights and criminal law associated with the sentence in the Talty case and those issues that might arise from similar sentences. Part I outlines the facts and history unique to the Talty case. Part II discusses the privacy issues at play in a sentence dealing with procreation and sexuality. This Part explains the procreative rights involved in cases of sterilization, birth control, and abortion, and fleshes out the issues of privacy involved in cases of nonprocreative sexuality. In addition, this Part illustrates the various limits on privacy inherent in a criminal conviction, along with the ramifications that such limits have on the constitutionality of governmental restrictions on behavior.

Part III of the Note discusses the fundamental right to marriage and how it might affect the strength of privacy and procreative rights. Part IV illustrates the various issues involved with requiring birth control in a setting in which such an order contradicts religious teachings. Additionally, Part IV discusses generally the Free Exercise Clause and elaborates on the hybrid rights exception. Ultimately, this Note concludes that courts are allowed to restrict procreative rights in criminal sentencing except in cases where the right to free exercise of religion is used in combination with the fundamental right to marry.

  1. CASE FACTS AND HISTORY

    On February 27, 2002, Sean E. Talty, a resident of Medina County, Ohio, was indicted for failing to pay child support for three of his seven biological children. (4) Mr. Talty initially pled not guilty to the charges, but eventually changed his plea to no contest. (5) The trial court accepted the plea and requested that each side prepare a brief regarding whether or not a court is permitted to order a convicted criminal to not impregnate a woman while on probation if such an order is reasonably related to his offense, as it was in that case. (6) Briefs from both sides were considered as was a brief filed by the American Civil Liberties Union of Ohio, which supported the position that such a restriction could not be imposed. (7) In a journal entry dated September 6, 2002, Judge James L. Kimbler of the Medina County Court of Common Pleas sentenced Mr. Talty to five years of community control and nonresidential sanctions, (8) which included basic supervision by the Adult Probation Department, and further ordered that Mr. Talty "make all reasonable efforts to avoid conceiving another child." (9)

    Mr. Talty appealed this decision to the Ninth District Court of Appeals, claiming that the part of the sentence requiring him to avoid having children violated his Due Process and Equal Protection rights under the Fourteenth Amendment to the U.S. Constitution and various sections of the Ohio Constitution. (10) The Ninth District upheld the trial court's decision, stating that the sanction was constitutional. (11) The Court used the three prong test from State v. Jones, (12) which requires that sanctions: (1) be reasonably related to the offender's rehabilitation, (2) have some relationship to the crime which the offender was convicted of, and (3) serve the ends of the probation by relating to criminal conduct or conduct related to future criminality. (13) Although the court acknowledged that there is a fundamental right to procreate, it refused to review the case under strict scrutiny, stating that conditions of probation are not subject to such a strict analysis. (14)

    The Ohio Supreme Court overturned the sentence on September 29, 2004, stating that the anfiprocreafion order was overbroad. (15) The Court focused on the fact that the order did not allow the antiprocreation sanction to be lifted if Mr. Talty were to become current on his child support payments. (16) Although the Court did not address the issue of the constitutionality of the sentence, it did state that the right to procreate is fundamental under the U.S. Constitution. (17)

    Before the case was remanded to the trial court, Mr. Talty married his live-in girlfriend, who also is the mother of two of his children. (18) When the conditions of his probation were again before Judge Kimbler, the Court held that the antiprocreation sanction could not be imposed on Mr. Talty. The reason for this was that Mr. Talty was a married man, and such an order would interfere with the fundamental right to marriage. (19)

  2. THE RIGHT TO PRIVACY

    The right to privacy has been considered a fundamental right ever since the U.S. Supreme Court's decision in Griswold v. Connecticut. (20) This basic fight was expanded and strengthened in subsequent cases, most notably Roe v. Wade (21) and Lawrence v. Texas. (22) The right to privacy covers two main areas that apply to the Talty case: the right to make procreative decisions and the right to privacy in sexual behavior. Sections A and B discuss procreative rights and sexuality, respectively.

    Section C discusses how a criminal conviction affects the right to privacy and whether or not that consideration will override the Fourteenth Amendment problems.

    1. Privacy in Procreative Rights

      Regulating procreative rights is neither a new concept nor limited in its potential intrusion. This section illustrates the various ways in which the government has tried to regulate procreation in the past and what it has the potential to do in the future.

      1. Sterilization

        The Talty decision, along with other recent cases such as State v. Oakley, (23) is not the first case to deal with the issue of government restriction on procreation. In the 1920s, the Court was called upon to address the sterilization movement. (24) The sterilization movement began in 1883 with the concept of eugenics, which was developed by an English scientist named Francis Galton, and which promoted sterilizing the "dim-witted" or "feeble-minded" during their reproductive years, so as to prevent the "defective" people from genetically passing their faults to an increasingly large portion of the population. (25) The fear among the supposedly nondefective people was that they would be outnumbered and brought to ruin by the masses of the "unfit." (26) States began imposing laws that required that certain people be sterilized against their will in cases of mental incapacity, physical deformity, or conviction. (27) This movement grew in popularity and even had an advocate on the Supreme Court in Justice Oliver Wendell Holmes, who famously stated in Buck v. Bell (28) that "[t]hree generations of imbeciles are enough." (29)

        Buck was the first major case to deal with this issue. The case involved a woman who was sterilized under a Virginia statute because she was institutionalized and had hereditary "imbecility." (30) The Court upheld this statute and procedure, stating that the State could legitimately require sterilization because it was necessary to the public welfare and did not violate the Due Process Clause. (31) In his opinion for the court, Justice Holmes summarized the purpose for the law by saying, "It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind." (32) Justice Holmes's opinion seems to support the notion that the government had a legitimate purpose in controlling the reproduction of the unfit, even likening the sterilization procedures to compulsory vaccinations. (33) This decision has been strongly criticized and is currently not followed, despite never being overruled. (34)

        The Buck decision appears to lend support to the sentence in Talty. The argument that it is better for Mr. Talty not to have any more children than to have children that he cannot support, and who will thus be dependent on society for support, traces Holmes's argument that it is better to stop the conception of potentially unfit people than to allow them to become a burden on society. Although these arguments seem similar, the decision in Talty has a far more direct link to criminal prevention, as it was clear that Mr. Talty was not likely to support additional children in the near future. The Buck decision is far more concerned with preventing a general population of potential criminals from being born, while the Talty decision is concerned primarily with the recidivism of one particular offender, as is required when creating terms of probation under Jones. (35)

        Although the reasoning of the Buck decision would more than likely support the sentence in...

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