Update: On December 18, 2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the argument here.

On July 21, 2020, the Supreme Court of Ohio will hear oral argument in State of Ohio v. London Chapman, 2019-1410. At issue in this case is whether a trial court can impose a community control condition that limits a probationer’s right to procreate.

Case Background

On January 7, 2016, London Chapman pleaded guilty to eleven counts of felony non-support in violation of RC. 2919.21 (B). At the sentencing hearing Lorain County Common Pleas Court Judge James Walther ordered that Chapman complete five years of community control and ordered that Chapman “make all reasonable efforts to avoid impregnating a woman during the community control period” unless “[he] can prove to the Court that he is able to provide support for the children he already has and is in fact supporting the children or until a change in conditions warrant the lifting of this condition.” Judge Walther also required Chapman to support his children and pay over $200,000 in arrears, in monthly installments, plus any current child support owed.

Chapman appealed, challenging the anti-procreation condition on constitutional and non-constitutional grounds. In a unanimous decision authored by Judge Jennifer Hensal and joined by Judges Thomas Teodosio and Donna Carr, the Ninth District Court of Appeals reversed, finding that although Chapman failed to show the condition violated the three-part test of  State v. Jones, a remand was necessary so the trial court could consider Chapman’s constitutional arguments challenging the anti-procreation community control condition.

On remand, Judge Walther rejected Chapman’s constitutional arguments, finding the anti-procreation condition constitutionally sound because it directly related to the non-support crimes of which he was convicted, and contained a lifting mechanism including the full payment of Chapman’s child support arrearage and supporting his existing children.

Chapman again appealed on both constitutional and non-constitutional grounds.  

The Second Appeal

In another unanimous decision, this time authored by Judge Thomas Teodosio and joined by Judges Jennifer Hensal and Julie Schafer, the Ninth District Court of Appeals affirmed the trial court’s ruling that Chapman’s anti-procreation community control condition was constitutional.

Based on the doctrines of law of the case and res judicata, the appeals court declined to consider Chapman’s non-constitutional arguments. The appeals court instead focused on Chapman’s constitutional claims. The appeals court acknowledged that the right to procreate is fundamental under the United States Constitution. However, the court also stated that community control conditions, even those that infringe on fundamental rights, are valid so long as they satisfy the Jones test, which these did. The court rejected Chapman’s argument that the anti-procreation condition is subject to strict scrutiny because those on probation do not enjoy the same liberties as law abiding citizens.  

Votes to Accept the Case

Yes: Chief Justice O’Connor, Justices French, Fischer, DeWine, Donnelly, and Stewart

No: Justice Kennedy

Chapman’s Proposition of Law Accepted for Review 

The Trial Court violated Mr. Chapman’s Due Process and Equal Protection rights under the Fourteenth Amendment to the United States Constitution and Article I, Sections One, Two, and Sixteen of the Ohio Constitution and Mr. Chapman’s right to privacy under the Ninth Amendment to the Constitution and Article I, Section Twenty of the Ohio Constitution when it imposed an additional community control condition on Mr. Chapman to take steps to avoid conceiving another child while he is on community control.

Key Statutes and Precedent

U.S. Const. Amen. V (“No person shall be . . .  deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”)

U.S. Const. Amen. IX (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”)

U.S. Const. Amen. XIV (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”)

Ohio Constitution Article I, Section 1 (Inalienable Rights) (“All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.”)

Ohio Constitution Article I, Section 2  (Right to alter, reform, or abolish government, and repeal special privileges) (“All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly.”)

Ohio Constitution, Article I, Section 16 (Redress in courts) (“All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.”)

Ohio Constitution Article I, Section 20  (Powers reserved to the people) (“This enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers, not herein delegated, remain with the people.”)

Skinner v. Oklahoma, 316 U.S. 535 (1942) (“The right to procreate is considered fundamental under the United States Constitution.”)

Eisenstadt v. Baird, 405 U.S. 438 (1972) (All individuals, whether single or married, have the right to choose whether to procreate without government interference.)  

State v. Jones, 49 Ohio St. 3d 51 (1990) (A community control condition can be imposed so long as it is (1) is reasonably related to rehabilitating the offender; (2) has some relationship to the crime the offender committed; and (3) relates to the criminal conduct or future criminal conduct and serves the statutory ends of probation. The condition must not be overbroad.)

Oakley v. Wisconsin, 629 N.W.2d 200 (2001) (Though the right to procreate is fundamental, “it is well-established that convicted individuals do not enjoy the same degree of liberty as citizens who have not violated the law.”)

State v. Talty, 2004-Ohio-4888 (2004) (Court struck down an anti-procreation condition for community control because the condition did not have a lifting mechanism.)

Chapman’s Argument

The Court should overturn the anti-procreation condition of his community control both on non-constitutional and constitutional grounds.

Non-Constitutional Grounds

First, the anti-procreation condition is impermissible on non-constitutional grounds. State v. Jones requires courts to consider whether the community control condition: (1) is reasonably related to rehabilitating the offender; (2) has some relationship to the crime the offender committed; and (3) relates to the criminal conduct or future criminal conduct and serves the statutory ends of probation. Community control conditions cannot be overbroad and unnecessarily infringe on the defendant’s liberty. If ready alternatives to the condition exist, the condition may be overbroad.

The anti-procreation condition does not pass the Jones test. First, ordering Chapman to avoid procreating does not rehabilitate his non-support offenses. Chapman does not need to be rehabilitated for procreation, but for non-payment. Instead of imposing an anti-procreation condition, the trial court should (and did) require Chapman to maintain employment in order to pay his non-support. The availability of the employment condition as an alternative to the anti-procreation condition is evidence that the community control condition is overbroad.

In State v. Talty, the Supreme Court of Ohio struck down a similar anti-procreation community control condition because the condition did not contain a lifting mechanism. Though the trial court included a lifting mechanism in this case, it is illusory because it does not provide a realistic opportunity for Chapman to free himself of the anti-procreation condition. All the lifting mechanisms for this case are either outside Chapman’s control or related to Chapman’s financial well-being. The lifting mechanism requires Chapman to pay all his arrears – a sum totaling more than $200,000. Chapman, and other impoverished probationers, cannot spend hundreds of thousands of dollars to secure the right to procreate, but wealthy probationers could. With this lifting mechanism, the trial court created a debtor’s prison whereby only wealthy probationers could escape this oppressive condition. This functional equivalent to a debtor’s prison violates the Equal Protection Clause of the United States Constitution.

The anti-procreation condition is also overbroad. The trial court did not define what constitutes “reasonable efforts” in its order. Should Chapman always wear a condom? Get a vasectomy? What happens if Chapman impregnates a woman even after he wears a condom or has a vasectomy? The trial court did not answer these questions. This ambiguity forces Chapman into abstinence – a virtual sterilization.

Finally, the appeals court inappropriately relied on Talty to support the constitutionality of an anti-procreation condition, though the Supreme Court of Ohio did not address constitutionality in Talty. This Court struck down the condition in Talty because it did not have a lifting mechanism, though this Court did not determine what lifting mechanisms are permissible. Talty does not address all the constitutional and non-constitutional issues that this case presents and is thus not the sole controlling precedent.

Constitutional Grounds

This case can – and should – be decided on non-constitutional grounds. However, Chapman should still prevail even if the Court chooses to address the constitutionality of the anti-procreation condition.

First, procreation is a fundamental right. The trial court functionally sterilized Chapman with this anti-procreation condition. According to U.S. Supreme Court precedent, any condition that destroys a right to privacy is unconstitutional. When the government threatens an individual’s fundamental rights, courts must apply a strict scrutiny analysis.

The trial court’s anti-procreation condition fails a strict scrutiny analysis because it is not narrowly tailored to a legitimate government interest. The State argues that it has a legitimate government interest in ensuring that children do not live in poverty. This anti-procreation condition criminalizes poverty. The State should not prioritize one impoverished group of children over another impoverished group of adults.

The State relies on State v. Oakley, a Wisconsin case, to support its constitutional argument. Though the Wisconsin Supreme Court in Oakley upheld the constitutionality of an anti-procreation condition, Oakley is not controlling here. In Oakley, there was a legitimate lifting mechanism for the defendant to avoid the anti-procreation condition – the defendant merely needed to pay child support. Here, there is no legitimate and accessible lifting mechanism for Chapman. To lift the anti-procreation ban, Chapman must pay child support and pay over $200,00 in arrears, an impossible feat. Other states have overruled these unconstitutional conditions and those cases should be more persuasive to this Court.

Stripping Chapman of his constitutional right to procreate also impacts his potential partners. The trial court’s anti-procreation ban thus indirectly infringes on innocent individuals. To uphold this anti-procreation condition would be to set a dangerous precedent by which courts regularly, and easily, limit an individual’s fundamental right to procreate.

Finally, the condition is not narrowly tailored in this case to meet the state’s compelling interest if there is one. The condition criminalizes indigency and castrates the poor.

State’s Argument

Even though procreation is a fundamental right, the trial court’s anti-procreation condition is appropriate in this case. Conditions of community control often interfere with the fundamental rights of defendants. Courts apply a strict scrutiny analysis when the government infringes upon the fundamental rights of the public at large, not probationers. The appropriate standards of review in this case are reasonableness and an abuse of discretion, which have been applied in similar cases throughout the country including State v. Jones. If a condition meets the goals of rehabilitation and protects the public, it should be upheld. The cases that Chapman relies on are easily distinguishable from his case: they do not contain the same anti-procreation condition and they do not pertain to the same legal issue. Further, the anti-procreation condition is thoughtfully tailored. The trial court recognized the fundamental right to procreation but ultimately decided on a condition that is temporary and removable.

The trial court appropriately applied the Jones test. Trial courts have broad discretion in imposing conditions to community control. The Jones court held that fundamental rights may be infringed upon as a condition of community control so long as the condition is reasonably related to the state’s interests of justice and rehabilitation. A condition is reasonably related to these interests if the condition is (1) is reasonably related to rehabilitating the offender; (2) has some relationship to the crime the offender committed; and (3) relates to the criminal conduct or future criminal conduct and serves the statutory ends of probation.

The anti-procreation condition imposed on Chapman is reasonably related to Chapman’s rehabilitation. Chapman was convicted of 11 counts of nonsupport. This condition reduces the likelihood that Chapman will conceive another child and thus reduces the risk that Chapman will be unable to support his children in the future.

The condition also is related to the crime Chapman committed and thus satisfies the second and third prongs of the Jones test. Chapman’s choice to have many children resulted in his inability to pay for those children. This condition ensures that Chapman will be able to support his children until they reach the age of majority.

The trial court thoughtfully included a lifting mechanism to Chapman’s community control condition, similar to the one the Wisconsin Supreme Court approved in Oakley. The community control condition in this case can be removed in several ways, which the court detailed in a non-exhaustive list. Chapman argues that the community control condition effectively places the financial needs of children above adults. Chapman is responsible for financially supporting his children and the trial court is correct in requiring him to meet those financial obligations.

Finally, the condition is not overbroad, despite Chapman’s arguments that the court did not educate him on what constitutes “reasonable efforts to avoid impregnating a woman.” Courts are not required to specifically define what behavior is acceptable for probationers. The conditions must just be enough for the probationer to know what is expected of him. The trial court’s community control condition allows Chapman the opportunity to plan his own intimacy.

State’s Proposed Counter Propositions of Law

Proposition 1

The trial court may impose conditions of community control that interfere with fundamental rights, those conditions are subject to de novo review, and should be upheld when they are reasonable.

Proposition 2

The trial court appropriately applied the applicable law when, following Appellant’s felony conviction on eleven (11) counts of Non- support of Dependents, the trial court imposed additional conditions of community control as follows:

“Defendant is ordered to make all reasonable efforts to avoid impregnating a woman during the community control period or until such time that Defendant can prove to the Court that he is able to provide support for his children he already has and is in fact supporting the children or until a change in conditions warrant the lifting of this condition.”

Amicus in Support of Chapman

American Civil Liberties Union of Ohio Foundation

The American Civil Liberties Union of Ohio Foundation (“ACLU of Ohio”) filed an amicus brief in support of Chapman. The ACLU of Ohio is a nonprofit, nonpartisan membership organization devoted to protecting the basic civil rights and liberties of all Americans.

The anti-procreation condition must be analyzed with strict scrutiny because procreation is a fundamental right under American jurisprudence. The trial court’s condition is nothing more than a chimera for Chapman who was no means to meet it. The condition only allows wealthy probationers guilty of nonsupport to access the fundamental right of procreation. Further, the anti-procreation condition fails the Jones test. Trial courts do not have limitless discretion to set conditions for community control. The anti-procreation condition is both under- and over-inclusive and is impermissibly vague. It is not narrowly tailored and serves no probationary purpose. The Supreme Court of Ohio should reverse the Ninth District Court of Appeals and rule in favor of Chapman.

 ACLU of Ohio’s Proposed Propositions of Law

Proposition 1

The anti-procreation condition wholly abrogates a fundamental right on the basis of wealth, and fails the requisite strict scrutiny.

Proposition 2

The anti-procreation condition fails the Jones test and is impermissibly vague.

Student Contributor: Maggie Pollitt