Probation Restrictions Impacting the Right to Procreate: The Oakley Error

Abstract:     
In State v. Oakley, the all-male four-justice majority held that a probation condition restricting David Oakley's right to have children passed constitutional muster. This Article discusses this question of the appropriate approach to evaluating the constitutionality of probation conditions. The Wisconsin Supreme Court's approach is compared to that of other courts in cases involving, in some way, decisions limiting a probationer's right to have children. The Author concludes that regardless of what constitutional standard or degree of scrutiny courts apply, cases can (and do) go both ways with respect to upholding or striking down probation restrictions on fundamental rights. However, the dominant trend despite the Oakley decision has been to strike down procreation restrictions. The Article details an alternative approach to the evaluation of probation conditions under the unconstitutional conditions doctrine that was revitalized in the 2001 Supreme Court term and argues that, in the end, probationers should have at least the same protections for constitutional rights as do incarcerated felons. Accordingly, no absolute curtailment of probationers' procreation rights, which the Oakley restriction is, should survive constitutional review.

Number of Pages in PDF File: 28

Keywords: probation, procreation, State v. Oakley, probationer, right to have children, constitutional law

Accepted Paper Series