|
SUPREME COURT OF WISCONSIN
2001 WI 103; 245 Wis. 2d 447; 629 N.W.2d 200; 2001
Wisc. LEXIS 434
July 10, 2001, Opinion Filed
DISPOSITION: Affirmed.
OPINION:
JON P. WILCOX, J. This case presents two issues. n1 First, we
must decide whether as a condition of probation, a father of nine
children, who has intentionally refused to pay child support, can
be required to avoid having another child, unless he shows that
he can support that child and his current children. We conclude
that in light of Oakley's ongoing victimization of his nine children
and extraordinarily troubling record manifesting his disregard
for the law, this anomalous condition--imposed on a convicted felon
facing the far more restrictive and punitive sanction of prison--is
not overly broad and is reasonably related to Oakley's rehabilitation.
Simply put, because Oakley was convicted of intentionally refusing
to pay child support--a felony in Wisconsin--and could have been
imprisoned for six years, which would have eliminated his right
to procreate altogether during those six years, this probation
condition, which infringes on his right to procreate during his
term of probation, is not invalid under these facts. Accordingly,
we hold that the circuit court did not erroneously exercise its
discretion.
…
David Oakley (Oakley), the petitioner, was initially charged with
intentionally refusing to pay child support for his nine children
he has fathered with four different women. The State subsequently
charged Oakley with seven counts of intentionally refusing to provide
child support …
…
After taking into account Oakley's ability to work and his consistent
disregard of the law and his obligations to his children, Judge
Hazlewood observed that "if Mr. Oakley had paid something,
had made an earnest effort to pay anything within his remote ability
to pay, we wouldn't be sitting here," nor would the State
argue for six years in prison. But Judge Hazlewood also recognized
that "if Mr. Oakley goes to prison, he's not going to be in
a position to pay any meaningful support for these children." Therefore,
even though Judge Hazlewood acknowledged that Oakley's "defaults,
are obvious, consistent, and inexcusable," he decided against
sentencing Oakley to six years in prison consecutive to his three-year
sentence in Sheboygan County, as the State had advocated. Instead,
Judge Hazlewood sentenced Oakley to three years in prison on the
first count, imposed and stayed an eight-year term on the two other
counts, and imposed a five-year term of probation consecutive to
his incarceration. Judge Hazlewood then imposed the condition at
issue here: while on probation, Oakley cannot have any more children
unless he demonstrates that he had the ability to support them
and that he is supporting the children he already had.
…
II
Oakley challenges the constitutionality of a condition of his
probation for refusing to pay child support. The constitutionality
of a condition of probation raises a question of law, which this
court reviews independently without deference to the decisions
of the circuit court or the court of appeals. See State v. Griffin,
131 Wis. 2d 41, 49, 388 N.W.2d 535 (1986); Edwards v. State, 74
Wis. 2d 79, 85, 246 N.W.2d 109 (1976).
Refusal to pay child support by so-called "deadbeat parents" has
fostered a crisis with devastating implications for our children.
n4 Of those single parent households with established child support
awards or orders, approximately one-third did not receive any payment
while another one-third received only partial payment. For example,
in 1997, out of $ 26,400,000,000 awarded by a court order to custodial
mothers, only $ 15,800,000,000 was actually paid, amounting to
a deficit of $ 10,600,000,000. These figures represent only
a portion of the child support obligations that could be collected
if every custodial parent had a support order established. Single
mothers disproportionately bear the burden of nonpayment as the
custodial parent. On top of the stress of being a single parent,
the nonpayment of child support frequently presses single mothers
below the poverty line. In fact, 32.1% of custodial mothers were
below the poverty line in 1997, in comparison to only 10.7% of
custodial fathers. Indeed, the payment of child support is
widely regarded as an indispensable step in assisting single mothers
to scale out of poverty, especially when their welfare benefits
have been terminated due to new time limits.
The effects of the nonpayment of child support on our children
are particularly troubling. In addition to engendering long-term
consequences such as poor health, behavioral problems, delinquency
and low educational attainment, inadequate child support is a direct
contributor to childhood poverty. And childhood poverty is all
too pervasive in our society. Over 12 million or about one out
of every six children in our country lives in poverty. In Wisconsin,
poverty strikes approximately 200,000 of our children with 437,000
at or below 200% of the poverty level in 1999. Although payment
of child support alone may not end childhood poverty, it could
reduce current levels and raise childhood standards of living.
Child support--when paid--on average amounts to over one-quarter
of a poor child's family income. There is little doubt that the
payment of child support benefits poverty-stricken children the
most. Enforcing child support orders thus has surfaced as a major
policy directive in our society.
In view of the suffering children must endure when their noncustodial
parent intentionally refuses to pay child support, it is not surprising
that the legislature has attached severe sanctions to this crime.
Wis. Stat. § 948.22(2). This statute makes it a Class E felony
for any person "who intentionally fails for 120 or more consecutive
days to provide spousal, grandchild or child support which the
person knows or reasonably should know the person is legally obligated
to provide . . . ." A Class E felony is punishable with "a
fine not to exceed $ 10,000 or imprisonment not to exceed 2 years,
or both." Wis. Stat. § 939.50(3)(e). The legislature
has amended this statute so that intentionally refusing to pay
child support is now punishable by up to five years in prison.
See Wis. Stat. § 939.50(3)(e)(1999-2000).
…
In the present case, the record indicates that Judge Hazlewood
was familiar with Oakley's abysmal history prior to
sentencing. The record reveals that Judge Hazlewood knew that Oakley
had a number of support orders entered for his nine children, but
he nevertheless continually refused to support them. He was aware
that Oakley's probation for intimidating two witnesses in a child
abuse case--where one of the witnesses was his own child and the
victim--was in the process of being revoked. Judge Hazlewood was
also apprised that Oakley had promised in the past to support his
children, but those promises had failed to translate into the needed
support. Moreover, he knew that Oakley had been employed and had
no impediment preventing him from working. … Judge Hazlewood
asserted that some prison time coupled with conditional probation
might convince Oakley to stop victimizing his children. With probation,
Judge Hazlewood sought to rehabilitate Oakley while protecting
society and potential victims--Oakley's own children--from future
wrongdoing. The conditions were designed to assist Oakley
in conforming his conduct to the law. In Wisconsin, as expressed
in Wis. Stat. § 948.22(2), we have condemned unequivocally
intentional refusal to pay child support and allow for the severe
sanction of prison to be imposed on offenders. Here, the judge
fashioned a condition that was tailored to that particular crime,
but avoided the more severe punitive alternative of the full statutory
prison term through the rehabilitative tool of probation. At the
same time, Judge Hazlewood sought to protect the victims of Oakley's
crimes--Oakley's nine children.
But Oakley argues that the condition imposed by Judge Hazlewood
violates his constitutional right to procreate. This court,
in accord with the United States Supreme Court, has previously
recognized the fundamental liberty interest of a citizen to choose
whether or not to procreate. Eberhardy v. Circuit Court for Wood
County, 102 Wis. 2d 539, 561, 307 N.W.2d 881 (1981); Skinner v.
Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 86 L. Ed. 1655,
62 S. Ct. 1110 (1942) (recognizing the right to procreate as "one
of the basic civil rights of man"). Accordingly, Oakley argues
that the condition here warrants strict scrutiny. That is,
it must be narrowly tailored to serve a compelling state interest.
See Zablocki v. Redhail, 434 U.S. 374, 388, 54 L. Ed. 2d 618, 98
S. Ct. 673 (1978). Although Oakley concedes, as he must, that the
State's interest in requiring parents to support their children
is compelling, he argues that the means employed here is not narrowly
tailored to serve that compelling interest because Oakley's "right
to procreate is not restricted but in fact eliminated." According
to Oakley, his right to procreate is eliminated because he "probably
never will have the ability to support" his children. Therefore,
if he exercises his fundamental right to procreate while on probation,
his probation will be revoked and he will face the stayed term
of eight years in prison.
While Oakley's argument might well carry the day if he had not
intentionally refused to pay child support, it is well-established
that convicted individuals do not enjoy the same degree of liberty
as citizens who have not violated the law. See Evans, 77 Wis. 2d
at 230 (asserting that "liberty enjoyed by a probationer is,
under any view, a conditional liberty" and that probationer's "position
is not that of a non-convicted citizen"); Von Arx v. Schwarz,
185 Wis. 2d 645, 658, 517 N.W.2d 540 (Ct. App. 1994) (observing
that felon on probation does not enjoy the same constitutional
guarantees as the citizenry). We emphatically reject the novel
idea that Oakley, who was convicted of intentionally failing to
pay child support, has an absolute right to refuse to support his
current nine children and any future children that he procreates,
thereby adding more child victims to the list.
…
Applying the relevant standard here, we find that the condition
is not overly broad because it does not eliminate Oakley's ability
to exercise his constitutional right to procreate. He can satisfy
the condition of probation by making efforts to support his children
as required by law. Judge Hazlewood placed no limit on the number
of children Oakley could have. Instead, the requirement is that
Oakley acknowledge the requirements of the law and support his
present and any future children. If Oakley decides to continue
his present course of conduct--intentionally refusing to pay child
support--he will face eight years in prison regardless of how many
children he has. Furthermore, this condition will expire at the
end of his term of probation. He may then decide to have more children,
but of course, if he continues to intentionally refuse to support
his children, the State could charge him again under § 948.22(2).
Rather, because Oakley can satisfy this condition by not intentionally
refusing to support his current nine children and any future children
as required by the law, we find that the condition is narrowly
tailored to serve the State's compelling interest of having parents
support their children. It is also narrowly tailored to serve the
State's compelling interest in rehabilitating Oakley through probation
rather than prison. The alternative to probation with conditions--incarceration
for eight years--would have further victimized his children. And
it is undoubtedly much broader than this conditional impingement
on his procreative freedom for it would deprive him of his fundamental
right to be free from physical restraint. Simply stated, Judge
Hazlewood preserved much of Oakley's liberty by imposing probation
with conditions rather than the more punitive option of imprisonment.
See State v. Evans, 77 Wis. 2d 225, 230, 252 N.W.2d 664 (1977)
("Whether sentence 'is withheld or imposed and stayed, a convicted
person's status as a probationer is a matter of grace or privilege
and not a right' made possible by the legislature.") (citation
omitted).
incarcerating him. Oakley must only stop committing the crime
of intentionally refusing.
Moreover, the condition is reasonably related to the goal of rehabilitation.
A condition is reasonably related to the goal of rehabilitation
if it assists the convicted individual in conforming his or her
conduct to the law. … Here, Oakley was convicted of
intentionally refusing to support his children. The condition at
bar will prevent him from adding victims if he continues to intentionally
refuse to support his children. As the State argues, the condition
essentially bans Oakley from violating the law again. Future violations
of the law would be detrimental to Oakley's rehabilitation, which
necessitates preventing him from continuing to disregard its dictates.
Accordingly, this condition is reasonably related to his rehabilitation
because it will assist Oakley in conforming his conduct to the
law.
DISSENT: ANN WALSH BRADLEY, J. (dissenting). I begin by
emphasizing the right that is at issue: the right to have children.
The majority acknowledges this right, but certainly does not convey
its significance and preeminence. 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. See
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 536, 86 L.
Ed. 1655, 62 S. Ct. 1110 (1942).
Thus, the stakes are high in this case. The majority's decision
allows, for the first time in our state's history, the birth of
a child to carry criminal sanctions. Today's decision makes this
court the only court in the country to declare constitutional a
condition that limits a probationer's right to procreate based
on his financial ability to support his children. Ultimately, the
majority's decision may affect the rights of every citizen of this
state, man or woman, rich or poor.
I wholeheartedly agree with the majority that the governmental
interest at stake in this case is of great magnitude. The state
has an interest in requiring parents such as Oakley to support
their children. As the majority amply demonstrates, the lack of
adequate support for children affects not only the lives of individual
children, but also has created a widespread societal problem. However,
when fundamental rights are at issue, the end does not necessarily
justify the means. The majority concludes that the means of effecting
the state's interest are sufficiently narrow in light of this governmental
interest. I disagree.
…
While on its face the order leaves room for the slight possibility
that Oakley may establish the financial means to support his children,
the order is essentially a prohibition on the right to have children.
Oakley readily admits that unless he wins the lottery, he will
likely never be able to establish that ability. The circuit court
understood the impossibility of Oakley satisfying this financial
requirement when it imposed the condition. The court explained
that "it would always be a struggle to support these children
and in truth [Oakley] could not reasonably be expected to fully
support them." …
First, prohibiting a person from having children as a condition
of probation has been described as "coercive of abortion." In
People v. Pointer, 151 Cal. App. 3d 1128, 199 Cal. Rptr. 357, the
court concluded that a condition of probation prohibiting a female
probationer from becoming pregnant was unconstitutional. It advanced
that such a condition fosters state-coerced abortion:
In the event she became pregnant during the period of probation
the surreptitious procuring of an abortion might be the only practical
way to avoid going to prison. A condition of probation that might
place a defendant in this position, and if so, be coercive of abortion,
is in our view improper.
199 Cal. Rptr. at 366; see also State v. Mosburg, 13 Kan. App.
2d 257, 768 P.2d 313, 315 (Kan. Ct. App. 1989).
If the tables are turned to the present case where the probationer
is a man, a similar risk arises. Because the condition is triggered
only upon the birth of a child, the risk of imprisonment creates
a strong incentive for a man in Oakley's position to demand from
the woman the termination of her pregnancy. It places the woman
in an untenable position: have an abortion or be responsible for
Oakley going to prison for eight years. Creating an incentive to
procure an abortion in order to comply with conditions of probation
is a result that I am not prepared to foster.
Second, by allowing the right to procreate to be subjected
to financial qualifications, the majority imbues a fundamental
liberty interest with a sliding scale of wealth. Men and women
in America are free to have children, as many as they desire. They
may do so without the means to support the children and may later
suffer legal consequences as a result of the inability to provide
support. However, the right to have a child has never been rationed
on the basis of wealth.
|
