It’s one of those things that is humorous but then causes you stop and think. As reported by the Mitchell Daily Republic, in suspending a three-year prison sentence for a man convicted of meth possession, Judge Tim Bjorkman also told the defendant, “You will use your best efforts to avoid procreation while on probation.” Can he do that?, some might ask.
His order certainly isn’t the first of that nature. For example, last December a Wisconsin judge placed on man on three years probation for failing to pay about $85,000 in child support to two of his nine children. He said the man was not to procreate until he could show he could support any more children. In 2001, the Wisconsin Supreme Court said a court could order a man who intentionally refused to pay child support for the nine children he fathered with four different women not have any more children while on five years probation unless he demonstrated that he could support them and was supporting the children he already had.
Likewise, in Ohio, a man owing more than $95,000 in child support was ordered to “avoid impregnating a woman” while on five years probation unless he showed he could support the four children he already had. That condition was resolved before an appeal concluded. In 2004 the Ohio Supreme Court reversed an order that a man who fathered seven children with five women and was $40,000 behind on support make “all reasonable efforts to avoid conceiving another child” during his five yeas probation.
These types of orders appear in more than child support cases, though. In 2008, a Texas judge ordered a woman sentenced to 10 years probation for failing to protect her 19-month-old child from a brutal beating by the child’s father not to conceive and bear a child while on probation. The judge lifted that condition when it turned out she was pregnant at the time she was placed on probation.
This is far from an exhaustive review of these types of cases, where the key question is whether such conditions violate an individual’s right to procreate. As the Ohio and Wisconsin decisions indicate, the answer may differ and may likely be very dependent on the facts (i.e., the intentional refusal to pay child support in Wisconsin). Does Judge Bjorkman’s order cross that line, particularly since the case is a drug prosecution? That is a question for judges and others more erudite than me. I do note, though, that Judge Bjorkman said the man must “avoid” procreation but did not outright ban it.
Either way, give the judge some credit for a bit of innovative sentencing.
It’s never the right time to have kids, but it’s always the right time for screwing.
Justin Halpern, Sh*t My Dad Says
