The General Answer to this is yes, of course, since they did it. But I rather imagine that you want a Great Debate.
I have no problem at all with this. (I) The guy committed a crime. (II) The criminal was sentenced to jail time (III) The judge offered him an alternative where he could be out on parole if he refrain from certain activities which would be lawful for ordinary citizens. (IV) The criminal voluntarily accepted the offer, he still has the option of going to jail if he so prefers.
Not to mention that the original jail sentence pretty much includes the not having children part. When you commit a crime you forfeit certain rights which other people have.
I’m not certain if you are correct, sailor. There are exceptions, and I know nothing about Wisconsin appellate procedure, but generally if you agree to a sentence you can’t appeal. Hence, it is very possible that the terms of the probation were simply imposed.
That’s a bloody good point, thanks for making it. It mitigates my sense of outrage at the decision.
And my initial reaction was one of outrage. Jail time for procreating? On further reflection, however, I (very) grudgingly accept the decision. The reason I do so is that the terms of the probation does allow him to procreate and avoid jail time if he pays his child support due. I still don’t like it, but so long as the alternative exists, I think I accept it.
What I think is very interesting is the potential to encourage abortions. I was going to say this is unique, but around 10 years ago, several states stopped their policy of increasing AFDC payments if a woman had additional children while on welfare. So yeah, governments have “encouraged” abortions before.
Ferggie, for a punishment to be unconstitutional, it has to be cruel and unusual. So the 8th Amendment doesn’t apply.
Sua
Aren’t we missing something here, Sua? ISTR a Supreme Court case that said a state could not deny a man the right to get married because he had not paid his child support. (Sorry, no cite at the moment.) There are also plenty of cases about the right to reproductive freedom, such as Griswold, Eisenstadt, and Roe.
Now personally, I’m all in favor of judicious use of the Norplant dart gun when it comes to irresponsible dumbasses who can’t be bothered with their own children. But legally, I’m not so sure this passes constitutional muster.
That was I believe Zablocki v. Redhail, 434 US 374 (1978), also a Wisconsin case. There’s an additonal case, Turner v. Somebody (sorry, don’t have the cite) addressing the right of prisoners to marry. In that case Justice O’Connor found a constitutional right to marry free from any procreative concerns.
Don’t get me wrong. I have no sympathy for this deadbeat scumbag and I’d like to see him without a penny to his name in favor of giving it to the kids he sired (“fathered” being the wrong word for so many reasons). My concern is with the precedent this establishes, that the state has a legitimate interest in interfering with the constitutional right to control reproductive decisions. I see this having far-reaching implications well beyond this case, and I think the court allowed its passions over doing the “right” thing to overwhelm them from doing the “legal” and “constitutional” thing.
Actually, I have to change mind. Call it hypocrisy, waffling, what you will. My initial reaction isn’t always right. I don’t support the state instituting a ban on procreation. I do think the first 9 lines of my last post were valid, tho…
I’m outraged at this guys lack of responsibility. But, as I’ve said in other places, that government is best which governs least. Get them out of his reproductive habits (I guess).
So now his nine children become wards of the state (assuming the mothers are collecting tax dollars in one way or another) and we all have to pay for them. He has created a debt to society, which must now feed, clothe, and educate his children, that he must pay. The question is: how? I don’t know.
Sorry for the lack of substance in this post.
Well, minty, it’s the classic case of two competing compelling interests - the state’s to have parents support their children (recognized by both the majority and the dissent as compelling), and the deadbeat’s dad compelling interest in freedom to procreate. Which wins?
I think that in this case, a narrowly tailored resolution, with alternatives that allow the deadbeat dad to avoid the restriction of his right to procreate, would probably pass constitutional muster.
The concept isn’t all that unusual - compelling interests are often limited due to recognition that untrammeled exercise of rights may infringe on other compelling interests - time, place and manner restrictions apply.
As for Zablocki, I have two answers. First, we are talking about terms of probation. A typical term of probation is that the probationer may not associate with known felons, for example. Distinctly an infringement on his constitutional right to free assembly, but allowed nonetheless. Second, relying on Otto’s post, The Supremes have separated the right to marry from procreation. Hence, Zablocki can be distinguished - the current case isn’t about marriage and child support, it’s about procreation and child support. Splitting hairs, I know, but hey, that’s what we get paid for. 
BTW, I disagree that it is “impossible” for the deadbeat dad to comply with payment of his child support obligations. Difficult, yes, but not impossible. My grandpa, for example, provided for 10 kids despite having not completed high school.
Sua
OK,Ok just a flip comment. You are correct in that I doubt anyone would be willing to pay that much in OT. Maybe I should’ve said “make him get 3 jobs”.
I have decided that I agree (grudgingly) with the decision (You can all get some sleep now, I’m sure). I would have a problem (as would most) with the court saying “You CAN"T have kids”. This way, the choice is still his. No kids or 8 years in jail. Which as Sailor said, pretty much prevents him from procreating anyway.
He is still a grade A mouth-breathing, knuckle-dragging, bemulleted, A-hole though (Sorry, I had to unload. This case has been going around the papers here for awhile, and his “woe is me” whining is getting pretty old)
Far be it from me to split hairs, Sua. But I don’t think the fact that he can have more kids if he pays his child support is really all that compelling a reason to distinguish this case from the past reproductive freedom cases. For instance, in Zablocki (thanks for refreshing my memory, Otto!), the guy who wanted to get married could have done so under the Wisconsin statute by paying his delinquent child support. The Supreme Court rejected that rationale back then, and I don’t see that it makes any more sense when we’re talking about restraining reproduction than when it was about restraining marriage. Both marriage and reproduction, after all, receive pretty strict due process scrutiny.
However, now that I’ve had time to reflect on this, it wouldn’t be the first time a person’s parole or probation was made contingent upon the use of birth control. I am unaware of any other cases involving men, but I do remember hearing about women who have been required to get implanted with Norplant or something similar.
Incidentally, I just found the court’s opinion. It’s a slow day, so I’ll take a look and see if anything in there changes my mind. Wouldn’t want to say anything stupid about a case I haven’t even read, right? 
That’s never stopped me before. But anyway, I just read the decision (thanks for the link). Turns out that this ain’t the first time such or similar parole conditions have been imposed. Forget procreation - in one of the cases cited, the probationer had to get his P.O.'s permission to enter into an intimate relationship!
Call me dense, but one thing I couldn’t quite get out of the decision is what is the standard when imposing probation restrictions that infringe on constitutional liberties? Best I could make out is that the restriction must not be overbroad, must be rationally related to the goal of rehabilitation, and must be narrowly tailored. Aren’t the not overbroad and narrowly tailored requirements somewhat contradictory?
Sua
I read through the opinion, unfortunately at work I can’t give it as close a reading as I should. A phrase from the majority opinion leaps out at me:
Um…no, it doesn’t. Oakley can still refuse to support his existing children, thus continuing to violate the law in question. The court is relying on Oakley’s past behaviour to magically glean what his behaviour toward hypothetical future children will be. Which to an extent is fine, that’s why we revoke driver’s licenses for repeat drunk drivers. But for the court to wrap itself in the language of “protecting victims” who as yet do not exist disturbs me.
Clearly, this punishment is not as narrowly tailored as it could be to achieve the state’s interest. Oakley could have been instructed that a future failure to pay child support on a child born to him while on probabtion would result in its revocation. That strikes me as the most narrowly tailored remedy possible. Does the law require that the most narrowly tailored remedy be employed, or just a remedy that is narrowly tailored?
The way I read this debate, it’s pretty much Phil against everyone else. He said:
**
Let’s back this whole mess up for a second: When did having babies become a right or a privelege? Breathing is neither a right or privelege. Eating doesn’t fit into either category either. Nor does procreation. It’s just something people do.
Of course, if you do them in a way that hurts other people, it is the role of government to swoop in and protect those others.
While I don’t normally think welfare is a great idea, I do believe that it is the State’s responsibility to care for children sired by dipsticks too horny to keep it in their pants. An even better solution would be a private enterprise dedicated to raising, educating then profiting from such people, but we’re not living in Utopia.
Count me among the confused. That opinion just doesn’t make much sense to me. The evil they’re trying to prevent is failure to pay child support, which they’re trying to fix by tying a knot in his dick. Huh? Have these guys never heard of garnishing wages? The standard of review and level of scrutiny are also a big mystery to me. I particularly loved the way the majority sidestepped the big constitutional questions by citing to Wisconsin case law instead of the Supreme Court.
Wonder if this one is on its way to D.C.?
::cracking knuckles:: well, did some one ask about what kind of restrictions can be in probation orders??? well, do I know about that or what.
Certainly there are standard ones for pretty much everyone on probation (‘dont’ break any laws’, ‘report as directed’, ‘don’t hang with criminals’ etc.)
However, they can (and do) routinely get pretty specific and involved at times “may not drive” is a common one, “May not drink or be in a public area where alcohol is sold for consumption on the premises”, “may not be in the presence of anyone under the age of 16”, “may not be in the presence of anyone under the age of 16 or in a public area where underaged persons are likely to congregate”, “may not associate with (specific named person, which may include a relative)” “must take parenting classes” “must secure and maintain employment” “must comply with counselor’s recommondations for medications” “must complete GED” etc. etc.
Also routine are directives to work, go to school, specific counseling, community service etc.
minty wage garnishment only works if the person is employed ‘above the table’. I’ve known quite a few ‘deadbeat parents’ (big surprise, right?) and the method is generally one of three:
and I typed them out and realized that I shouldn’t post methods of evading the law. But, it happens, minty.
Thanks for the info, wring! Of course, the difference between the restrictions you list (driving, drinking, association, etc.) is that none of them infringe on recognized constitutional rights, such as marriage and reproduction. Do you happen to know whether probationers are ever subject to speech or religion restrictions?* I can’t imagine that anybody on probation would ever be restricted from writing letters to the editor or going to church.
[sub]*First person to bring up the Second Amendment wins this week’s “I haven’t read U.S. v. Miller” Award.[/sub]
On preview: Agreed, the self-employed thing is a problem for garnishment. But how’s this: if he doesn’t pay up, revoke his probation and toss his deadbeat butt in jail. That has a lot more rational relation to the failure to pay child support than does trying to prevent him from having more kids, which has zilch to do with his willingness to support the ones he already has.
wring - how far can these restrictions go? Two of the ones you mentioned - don’t hang with criminals, and don’t got to a bar, violate the right to free assembly. One you didn’t mention, but is common in NY state, is that the probationer must allow their P.O. to search them or their premises without a warrant, despite the Fourth Amendment. Do you know what the standard is, darlin’?
minty, as wring’s list demonstrates, it is common practice already to restrict probationers’ rights, even to the extent of infringing on constitutionally protected liberties. Is there any reason why the (constitutional) right to procreate should be more sacrosanct than the right to be free of searches and seizures, for example?
Sua
Um, minty? I’ve always understood association and free assembly to mean the same thing. 'Course I was doing a lot of drugs in law school …
I ask again, where in the Constitution are we accorded the right to reproduce?!
It’s not an issue of rights.
It’s been read into the Due Process clause, sdimbert. Been that way since the 1940s, if I remember my constitutional history correctly.
Sua: Okay, I skipped Con Law on the day they did free assembly. My impression, however, is that (like guns)it’s fairly easy for the state to restrict free assembly, unlike plain ol’ speech and religion.