Update: On March 4,2021, the trial court vacated the anti-procreation community control provision the Supreme Court of Ohio struck down in its decision.

“The statutory scheme does not criminalize the failure to support one’s dependents in and of itself. Rather, it penalizes an individual’s failure to provide the mandated support that he can pay…It is the failure to pay as his means and ability allow that is criminal—not the number of children for whom he failed to provide.”

Justice DeWine, majority opinion

“It stands to reason then that by taking reasonable precautions to prevent fathering another child, Chapman will not increase his child-support obligations. If his child support obligations do not increase, Chapman is more likely to be able to meet his current, outstanding obligations.”

Justice French, dissenting opinion

On December 18, 2020, the Supreme Court of Ohio handed down a merit decision in State v. Chapman, 2020-Ohio-6730. In an opinion written by Justice DeWine, in which Justice Donnelly concurred in judgment only and Justice French dissented, the Court invalidated a community-control provision which ordered a man convicted of failure to pay child support to “make all reasonable efforts to avoid impregnating a woman” during his sentence. The case was argued July 21, 2020.

Case Background

Due to his failure to pay child support, London Chapman was convicted of 11 counts of felony nonsupport in 6 separate criminal cases. In addition to a number of standard community control conditions, the trial court ordered Chapman “to make all reasonable efforts to avoid impregnating a woman during the community control period or until such time that [he] 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.” Chapman appealed arguing that the condition was improper because it was not reasonably related to a rehabilitative purpose and violated his constitutional right to procreate. In the first round of the case, the Ninth District rejected Chapman’s nonconstitutional argument, but remanded the constitutional issue back to the trial court which had not addressed it in the first instance.

The trial court addressed Chapman’s constitutional concerns on remand and re-imposed the same conditions. The trial court did not elaborate on what would constitute “reasonable efforts” to avoid getting a woman pregnant. Chapman appealed again, and the Ninth District again affirmed the trial court.  The court of appeals first declined to reconsider Chapman’s nonconstitutional challenge on res judicata grounds. And the appeals court rejected Chapman’s constitutional argument, finding the procreation prohibition was not subject to strict scrutiny and was reasonably related to a rehabilitative purpose.

Read the oral argument preview here and the analysis of the argument here.  

Key Precedent

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.) 

Pell v. Procunier, 417 U.S. 817 (1974) (A term of imprisonment limits fundamental rights that are inconsistent with an individual’s “status as a prisoner or with the legitimate penological objectives of the corrections system.”)

Griffin v. Wisconsin, 483 U.S. 868 (1987) (Probationers do not enjoy the absolute liberty to which other citizens are entitled. The liberty of a probationer is conditioned upon the observance of the probation restrictions.)

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.)

United States v. Knights, 534 U.S. 112 (2001) (“Just as other punishments for criminal convictions curtail an offender’s freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.”)

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 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.

Does the Court adopt Chapman’s Proposed Proposition of Law?

The Court agrees with Chapman that the condition is improper, although not on all the grounds Chapman argues.

Merit Decision

Analysis

Standard of Review

Trial courts have broad discretion in imposing community control sanctions, and generally will not be reversed so long as the conditions imposed are reasonably related to the probationary goals of doing justice, rehabilitating the offender, and ensuring good behavior.  Additionally, the condition cannot be overbroad so as to infringe more than is necessary on the probationer’s liberty.

Strict Scrutiny Does Not Apply Here

Chapman argued for strict scrutiny because the trial court’s anti-procreation condition impinges on a fundamental right. The majority agrees that procreation is a fundamental right.  But the majority observes that a deprivation of liberty is an inherent part of a criminal sentence, and that prisoners and those on probation don’t get to enjoy the absolute freedoms that law abiding citizens do.  That’s why strict scrutiny does not apply to a criminal punishment. 

“In sum, because convicted criminals serving their sentences enjoy diminished liberty interests when compared with the general population, a trial court can impose community-control sanctions that limit the offender’s fundamental rights, provided that such limitations further the statutory goals of community control and are not overbroad,” DeWine wrote.

The Jones Test

The starting place for review is the test the Court set forth in State v. Jones, which is whether the community control condition reasonably relates to the offense, furthers the twin goals of rehabilitation and justice, and causes no greater deprivation of liberty than is necessary to achieve these penological goals.  Trial courts must still be mindful of the impact of any conditions on a fundamental right. But just as those incarcerated lose some deprivations of liberty simply because they are locked up, so too do those on probation face certain restrictions on fundamental rights.

Probation conditions that implicate a fundamental right impose more severe punishment than those that do not.  Therefore, in keeping with Jones, the justification for these must “be more exacting so as to ensure that the condition does not limit the probationer’s liberty more than is necessary to achieve the goals of community control,” DeWine wrote.

The Talty Decision

State v. Talty also dealt with a community-control condition requiring the probationer to make reasonable efforts to avoid conceiving a child, but unlike this case, it had no specific way to lift this condition. The Court applied the Jones test in Talty and held that the provision in that case was overbroad, and thus invalid because of the absence of this lifting mechanism.  The Court in Talty did not decide, however, whether a lifting mechanism would have saved the condition. The Court tackles that question in this case.

Procreation Prohibition Condition is Stricken in this Case

The majority apples the three-part Jones test to the procreation prohibition community control condition in this case and finds the condition wanting. One prong of the Jones test is whether the community control condition reasonably relates to the offense. Chapman was charged with the crime of nonsupport of his dependents.  But what is criminalized is not the failure to support, it is the person’s failure to provide the required support that he is able to pay.  This distinction is a point Justice DeWine really harped on at oral argument. So, it is not the number of children Chapman has that is the problem, it is his failure to pay as his means and ability allow. His crime wasn’t fathering children. It was failing to pay support.

The same problems exist with the other two Jones factors—rehabilitation and the possibility of further criminality. As DeWine states it, fathering another child would undoubtedly increase Chapman’s support obligations, but it would have little if any effect on preventing criminal nonsupport. The amount Chapman has to pay is the same regardless of the number of children he has.

Permissible Probation Conditions

Other community control conditions imposed in this case by the trial court were perfectly proper, including ordering Chapman to get and keep full-time employment. The majority suggests that the trial court could have gone farther with these, including ordering Chapman to take part in job training or placing him in a program to ensure he was working, making sure his child support was being deducted from his check, and requiring other pertinent training in money management and budgeting.  But what is not ok is the procreation prohibition because it is not a fit with the offense of which Chapman was convicted and the availability of more effective conditions.

Majority Bottom Line

The procreation prohibition flunks the Jones test. It is not reasonably related to the goals of community control and it is not reasonably tailored to avoid stepping on Chapman’s liberty any more than is necessary.

Justice French’s Solo Dissent

Points of Agreement With Majority

French agrees that the Court should apply the Jones reasonable relationship test to review the anti-procreation condition and agrees  that it is permissible for community control sanctions to limit an offender’s fundamental rights as long as the sanctions further the statutory goals of community control and are not overbroad.

And Points of Departure

French takes issue with the majority for going beyond Jones and adding an “amorphous ‘more exacting’ justification” for the sanction. She sees this as leading to uncertainty and confusion in the lower courts. French would simply apply the Jones test and uphold the anti-procreation condition.

Defending the Trial Court’s Justifications for the Anti-Procreation Condition

To French, the trial court provided more than enough justification for the anti-procreation condition it imposed. The trial court required proof that Chapman could support the children he already had or demonstrate a change in circumstance to justify the lifting of the condition. The court required Chapman to get and keep a full-time job. When the case was remanded from the appeals court to consider Chapman’s constitutional arguments, the trial court added more exacting justifications for the condition. The judge explained that the anti-procreation condition had a direct relationship to Chapman’s non-support offenses, and to Chapman’s repeated conduct of fathering children he does not support, had the rehabilitative purpose of giving Chapman a better chance of supporting the children he already has, and only requires that Chapman make reasonable efforts to avoid fathering more children during the period of community control, recognizing a number of ways to accomplish that. The trial court also provided an extensive, non-exhaustive list of lifting mechanisms (remember, that was what was missing in Talty) that would merit lifting the condition (if interested, these are in paragraph 32 of the dissent).

Rejecting the Majority’s More-Exacting-Justification Standard

French accuses the majority of modifying the Jones test by imposing an amorphous, standardless “more exacting justification” when a community control condition that implicates a fundamental right is involved, and one which is “not necessarily intrinsic to community control but [is] tailored to the rehabilitation of the offender.” She questions what that is supposed to mean and disagrees that either Jones or Talty support such a standard. To French, Jones provides all that is necessary.

“Applying the three-part test outlined in Jones, I agree with the trial court and the court of appeals that the community-control condition at issue here is reasonably related to rehabilitating Chapman, has some relationship to the crimes of which he was convicted, and relates to criminal conduct or reasonably relates to future criminal conduct and serves the purposes of community control,” French wrote.

French also disagrees with the majority’s conclusion that the anti-procreation condition is not related to the goals of community control because the “criminality of Chapman’s conduct is separate from the number of children he has.”

“It is difficult to imagine how fathering dependents that the law mandates Chapman to support does not have some relationship to the criminal act of failing to pay court-ordered support for his dependents,” French wrote. And to French, that is all Jones requires. She believes, contrary to what the majority does, that the statutory scheme at issue here does criminalize the failure to support one’s dependents, and that the anti-procreation condition at issue here does seek to prevent Chapman from having additional children he will not support.

Next, French finds the anti-procreation condition reasonably related to rehabilitating Chapman, because it stands to reason that if Chapman does take reasonable precautions not to father any more children, he won’t increase his support obligations and will be more likely to meet his current ones.

Finally, French would find that this community-control sanction is not overbroad, because it only requires that Chapman make reasonable efforts to avoid fathering more children and contains at least a dozen ways in which the condition could be lifted.  And she notes that this is not some petty, minor case of nonsupport, but rather one with an arrearage of over $200,000 at the time of Chapman’s 2018 resentencing.

Case Disposition

The judgment of the Court of Appeals is reversed, and the case is remanded to the trial court with instructions to remove the anti-procreation condition, but with permission to impose other conditions properly tailored to the goals of community control.

Trial Court Judge (reversed)

Lorain County Common Pleas Court Judge James Walther

Ninth District Panel (reversed)

Opinion authored by Judge Thomas Teodosio and joined by Judges Jennifer Hensal and Julie Schafer.

Concluding Observations 

Both student contributor Maggie Pollitt and I correctly called this for Chapman.

After argument, I wrote that it looked like a win for Chapman on narrow grounds, adding

“Justice DeWine really pounded on the assistant prosecutor about the fact that the crime here is failure to use the money one has to support one’s children, not to criminalize someone for not being able to support his children, and that the offense doesn’t change based on the number of children one has…Everyone agrees the state’s interest is in Chapman providing support for his children as he is able. While I think the other parts of the trial court’s order are permissible, I think the case is going to be remanded to the trial court to tweak the order and the terms of the lifting mechanism to tie them to the actual existing support requirement. I’m not sure if the Court will need to address the constitutional issues to get to this outcome. If they do wade in there, I think all will agree strict scrutiny is not required here, as it would be with law-abiding citizens.”

Maggie wrote

“My favoritism for Chapman may be clouding my judgment, but the bench’s questions point toward a win for Chapman. I think the Court will expect the community control condition to be more narrowly tailored to Chapman’s nonsupport felony.”