Post by: AZRedhawk44 on March 03, 2005, 10:18:52 PM
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A judge in Travis County has ordered a woman to stop having children as a condition of her probation in her case of injury to a child by omission, an extraordinary measure that legal experts say could be unconstitutional.
The order was for Felicia Salazar, 20, who admitted to failing to provide protection and medical care to her then-19-month-old daughter last year. The girl suffered broken bones and other injuries when she was beaten by her father, Roberto Alvarado, 25, who was sentenced to 15 years in prison. Alvarado and Salazar relinquished their parental rights, and the child, who has recovered, was placed in foster care.
On Sept. 5, state District Judge Charlie Baird sentenced Salazar, who had no criminal history, to 10 years of probation after she reached a plea bargain with prosecutors. In Texas, judges set conditions of probation. In addition to requiring Salazar to perform 100 hours of community service and to undergo a mental health assessment and setting other typical conditions, Baird told Salazar not to have any more children.
In an interview Wednesday, Baird said Texas law gives judges the discretion to set any conditions of probation deemed reasonable. He also said that neither Salazar nor her lawyer, Kent Anschutz, objected.
"When you look her background, the circumstances of this case," he said, "a reasonable condition of her probation was that she not conceive or bear any children."
Anschutz said he is considering his options on behalf of Salazar. He described her as concerned about Baird's order.
"Although I fully understand the sentiment and perspective of the judge in this matter, I question the enforceability of that particular condition," he said.
Salazar couldn't be reached for comment.
The requirement that Salazar not conceive or bear any children is "probably not constitutional," said Douglas Laycock, a University of Michigan constitutional law professor.
Laycock, a former professor and associate dean for research at the University of Texas School of Law, said in an e-mail that the courts have recognized a fundamental right of people to make their own decisions about becoming parents.
"The state rarely tries to stop people from becoming parents, so there has not been much occasion to litigate that," he said. "But undoubtedly there is a constitutional right to have children ... and I doubt that one conviction for injury to a child is enough to forfeit that right."
Conditions of probation are enforced by putting a defendant in jail or prison when they are violated.
It is doubtful whether Baird would or could do that if Salazar has children, said Keith Hampton, a veteran Travis County defense lawyer who is a second vice president of the Texas Criminal Defense Lawyers Association.
"I really don't see how that is going to be an enforceable order," Hampton said, citing court rulings that have expressed an unenumerated constitutional right to procreate. "It may be a good thing that this defendant heard someone in authority tell them 'We don't think you should have any more kids.' "
Hampton said that Salazar could appeal the conditions of her probation, even before Baird attempts to enforce them.
Baird said he has never made a similar order in his more than 20 months on the District Court bench in Travis County. Other lawyers, including Allison Wetzel, the prosecutor in the case, say they are not familiar with any similar orders.
John Schmolesky, a criminal law professor at St. Mary's University School of Law in San Antonio, said conditions of probation must serve to protect the public or rehabilitate the defendant.
"This one might logically have a connection to protecting the public," he said of Baird's order. "Obviously if she neglected her kid, if she doesn't have any more, she can't neglect them."
But, Schmolesky said, "if I were a betting man, I would say that an appellate court would strike that one down."
Baird noted that by putting Salazar on probation, he sentenced her to 10 years in prison and suspended that sentence.
"If I put her in prison for 10 years, she could not conceive or bear children," he said. "I don't know how this is unreasonable for probation."
Laycock, the Michigan law professor, said that in a past Wisconsin case, a father of nine who was convicted of intentionally failing to pay child support was ordered to have no more children as a condition of probation. The Supreme Court of Wisconsin upheld that condition.
"So there's room for argument here," Laycock said. "But I would think that if she challenges this order, it will be struck down.
"On the other hand, if she got probation instead of jail, she may be happy with this and not want to challenge it."
The order was for Felicia Salazar, 20, who admitted to failing to provide protection and medical care to her then-19-month-old daughter last year. The girl suffered broken bones and other injuries when she was beaten by her father, Roberto Alvarado, 25, who was sentenced to 15 years in prison. Alvarado and Salazar relinquished their parental rights, and the child, who has recovered, was placed in foster care.
On Sept. 5, state District Judge Charlie Baird sentenced Salazar, who had no criminal history, to 10 years of probation after she reached a plea bargain with prosecutors. In Texas, judges set conditions of probation. In addition to requiring Salazar to perform 100 hours of community service and to undergo a mental health assessment and setting other typical conditions, Baird told Salazar not to have any more children.
In an interview Wednesday, Baird said Texas law gives judges the discretion to set any conditions of probation deemed reasonable. He also said that neither Salazar nor her lawyer, Kent Anschutz, objected.
"When you look her background, the circumstances of this case," he said, "a reasonable condition of her probation was that she not conceive or bear any children."
Anschutz said he is considering his options on behalf of Salazar. He described her as concerned about Baird's order.
"Although I fully understand the sentiment and perspective of the judge in this matter, I question the enforceability of that particular condition," he said.
Salazar couldn't be reached for comment.
The requirement that Salazar not conceive or bear any children is "probably not constitutional," said Douglas Laycock, a University of Michigan constitutional law professor.
Laycock, a former professor and associate dean for research at the University of Texas School of Law, said in an e-mail that the courts have recognized a fundamental right of people to make their own decisions about becoming parents.
"The state rarely tries to stop people from becoming parents, so there has not been much occasion to litigate that," he said. "But undoubtedly there is a constitutional right to have children ... and I doubt that one conviction for injury to a child is enough to forfeit that right."
Conditions of probation are enforced by putting a defendant in jail or prison when they are violated.
It is doubtful whether Baird would or could do that if Salazar has children, said Keith Hampton, a veteran Travis County defense lawyer who is a second vice president of the Texas Criminal Defense Lawyers Association.
"I really don't see how that is going to be an enforceable order," Hampton said, citing court rulings that have expressed an unenumerated constitutional right to procreate. "It may be a good thing that this defendant heard someone in authority tell them 'We don't think you should have any more kids.' "
Hampton said that Salazar could appeal the conditions of her probation, even before Baird attempts to enforce them.
Baird said he has never made a similar order in his more than 20 months on the District Court bench in Travis County. Other lawyers, including Allison Wetzel, the prosecutor in the case, say they are not familiar with any similar orders.
John Schmolesky, a criminal law professor at St. Mary's University School of Law in San Antonio, said conditions of probation must serve to protect the public or rehabilitate the defendant.
"This one might logically have a connection to protecting the public," he said of Baird's order. "Obviously if she neglected her kid, if she doesn't have any more, she can't neglect them."
But, Schmolesky said, "if I were a betting man, I would say that an appellate court would strike that one down."
Baird noted that by putting Salazar on probation, he sentenced her to 10 years in prison and suspended that sentence.
"If I put her in prison for 10 years, she could not conceive or bear children," he said. "I don't know how this is unreasonable for probation."
Laycock, the Michigan law professor, said that in a past Wisconsin case, a father of nine who was convicted of intentionally failing to pay child support was ordered to have no more children as a condition of probation. The Supreme Court of Wisconsin upheld that condition.
"So there's room for argument here," Laycock said. "But I would think that if she challenges this order, it will be struck down.
"On the other hand, if she got probation instead of jail, she may be happy with this and not want to challenge it."
We always talk about how we wish the unwashed welfare-draining masses would be barred from having children.
She accepted this condition as part of a plea bargain. As such, is it enforceable? By what means? Would a Texas judge order a woman to have an abortion? Would a Texas Ranger enforce such an order?
It's an interesting confluence of opposing viewpoints: Conservatives dislike social miscreants and welfare leeches, wanting them to stop having babies. But, when time to potentially enforce it, how should conservatives do so?
Post by: Perd Hapley on March 03, 2005, 10:18:52 PM
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She accepted this condition as part of a plea bargain. As such, is it enforceable? By what means? Would a Texas judge order a woman to have an abortion? Would a Texas Ranger enforce such an order?
If she conceives by any means short of rape, she's already broken the agreement. If Texas wants to deal with that by murdering the kid, I guess that's their problem.
Post by: Tallpine on March 03, 2005, 10:18:52 PM
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She accepted this condition as part of a plea bargain. As such, is it enforceable? By what means?
Seems to me she would be jailed for the rest of her sentence, her baby born in prison, and immediately adopted out or placed in permanent foster care.
Post by: Sergeant Bob on March 03, 2005, 10:18:52 PM
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She accepted this condition as part of a plea bargain. As such, is it enforceable? By what means?
Seems to me she would be jailed for the rest of her sentence, her baby born in prison, and immediately adopted out or placed in permanent foster care.
That's what I was thinking would happen. She agreed to the terms of probation to keep her stupid child killing butt out of jail so I don't se anything wrong with it (other than the sentence being too light either way).
I have a feeling it wouldn't pass Constitutional muster if it went to the supremes.
Post by: Werewolf on March 03, 2005, 10:18:52 PM
That said:
Her best bet is to challenge the ruling just to cover herself. No way she's gonna be abstinent for 10 years and birth control isn't foolproof.
She wins the challenge and she can get pregnant without violating parole and going to the joint. Plus she gets to keep the kid if that is her wish. Lose the challenge and she's no worse off than if she hadn't appealed at all. Challenging the ruling is a win/neutral for her. She really can't lose.
Still - I'm with the judge on this one. Don't have any more babies.
Post by: dogmush on March 03, 2005, 10:18:52 PM
To put in context, lots of DUI probations have a condition that you can't drink, with testing and sometimes a breathalyzer on your car. The implication is that instead of going to jail, you can't do the otherwise legal activity (drinking) that got you in trouble.
In this case, shes being told that she cant engage in the otherwise legal activity (breeding) that lead to her troubles. Same thing, it seems to me. Furthermore, she's free to choose abstinance, condoms, the pill, an IUD, abortion or a historectomy (among other things) to keep from having kids.
If she doesn't like the condition she is also free to tell the judge that he's full of it, and go to jail for whatever crime she was convicted of. When she gets out she can breed like bacteria. This condition is part of a deal offered for her benefit. If she doesn't like the condition, don't accept the parole/probation.
So personally, I think it's a good idea.
All that being said, I'm not sure it'll fly in the face of public opinion, and court review. but it should.
Post by: Ben on March 03, 2005, 10:18:52 PM
Post by: longeyes on March 03, 2005, 10:18:52 PM
Post by: seeker_two on March 03, 2005, 10:18:52 PM
...though I'd prefer tubal ligation as part of the agreement....
Post by: Manedwolf on March 03, 2005, 10:18:52 PM
...then we have to do SOMETHING, or we're going to go broke.
This seems like the only possible solution, to me.
Post by: Sergeant Bob on March 03, 2005, 10:18:52 PM
Since we, as a society, have declared that we cannot let starve people who keep popping out kids they can't feed (as was the case for the rest of human history)...
...then we have to do SOMETHING, or we're going to go broke.
This seems like the only possible solution, to me.
...then we have to do SOMETHING, or we're going to go broke.
This seems like the only possible solution, to me.
Let them eat cake!
Post by: Werewolf on March 03, 2005, 10:18:52 PM
To play a little bit of devils advocate here, how is this unenforcable? or even bad?
To put in context, lots of DUI probations have a condition that you can't drink, with testing and sometimes a breathalyzer on your car. The implication is that instead of going to jail, you can't do the otherwise legal activity (drinking) that got you in trouble.
In this case, shes being told that she cant engage in the otherwise legal activity (breeding) that lead to her troubles. Same thing, it seems to me. Furthermore, she's free to choose abstinance, condoms, the pill, an IUD, abortion or a historectomy (among other things) to keep from having kids.
If she doesn't like the condition she is also free to tell the judge that he's full of it, and go to jail for whatever crime she was convicted of. When she gets out she can breed like bacteria. This condition is part of a deal offered for her benefit. If she doesn't like the condition, don't accept the parole/probation.
So personally, I think it's a good idea.
All that being said, I'm not sure it'll fly in the face of public opinion, and court review. but it should.
Not that what you've suggested aren't good ideas but that doesn't change the fact that the don't get pregnant ruling is unenforceable.To put in context, lots of DUI probations have a condition that you can't drink, with testing and sometimes a breathalyzer on your car. The implication is that instead of going to jail, you can't do the otherwise legal activity (drinking) that got you in trouble.
In this case, shes being told that she cant engage in the otherwise legal activity (breeding) that lead to her troubles. Same thing, it seems to me. Furthermore, she's free to choose abstinance, condoms, the pill, an IUD, abortion or a historectomy (among other things) to keep from having kids.
If she doesn't like the condition she is also free to tell the judge that he's full of it, and go to jail for whatever crime she was convicted of. When she gets out she can breed like bacteria. This condition is part of a deal offered for her benefit. If she doesn't like the condition, don't accept the parole/probation.
So personally, I think it's a good idea.
All that being said, I'm not sure it'll fly in the face of public opinion, and court review. but it should.
The judge may be able to tell her she can't have kids and hope he doesn't get overturned on appeal but he can't make her do any of the things suggested above. He can't force her to use condoms, he can't have an IUD installed, take the pill, get an abortion and if he even suggested an hysterectomy (especially if the woman in question is a minority) he might very well get disbarred.
So his ruling is unenforceable. He can do nothing to keep the woman from getting pregnant if that is what she wants to do. All he can do is revoke her probation if she breeds again.
Post by: Gewehr98 on March 03, 2005, 10:18:52 PM
It was due to maternal negligence that resulted in injury to one of the defendant's many (6) crotchfruit.
So the precedent has indeed already been set.
She was a friend of my ex-wife, and we always recited that Andrew Dice Clay nursery rhyme:
"There was an old woman who lived in a shoe,
She had so many kids her uterus fell out...
Post by: K Frame on March 03, 2005, 10:18:52 PM
Post by: dogmush on March 03, 2005, 10:18:52 PM
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Not that what you've suggested aren't good ideas but that doesn't change the fact that the don't get pregnant ruling is unenforceable.
All right, I'm tracking. But it is enforcable as a condition of her probation. Which is probably all the judge intended.
Get pregnant, got to jail. Do not pass Go, Do not collect $200. And probably lose the kid, as someone in jail for hurting their child would seem to be the very definition of unfit parent.
Which seems like a good idea to me. It might save us the money of houseing and feeding her with the ability to make sure she doesn't raise any more children. If she can't handle the simplicity of not getting pregnant, then off to jail with her.
Post by: Firethorn on March 03, 2005, 10:18:52 PM
She wins the challenge and she can get pregnant without violating parole and going to the joint. Plus she gets to keep the kid if that is her wish. Lose the challenge and she's no worse off than if she hadn't appealed at all. Challenging the ruling is a win/neutral for her. She really can't lose.
Does she have to get her own lawyer for the appeal? In that case, yes, she'd be out of a relatively large sum of money if she loses, and she may not be planning on having more kids anyways, thus the plea is a bargain for her.
As for BC - tubal ligation(or similar procedure) might be a good idea. Other options - Norplant(3-5 years), the shot(1 month), or even oral, backed up by condom.
Quote from: dogmush
If she doesn't like the condition she is also free to tell the judge that he's full of it, and go to jail for whatever crime she was convicted of. When she gets out she can breed like bacteria. This condition is part of a deal offered for her benefit. If she doesn't like the condition, don't accept the parole/probation.
I agree - she agreed to it in lieu of other options. Therefore it isn't cruel, while in the minds of prosecution and judge to be a good compromise for punishment/rehabilitation/preventing further problems.
For that matter - she's still free to breed again once the ten years have passed.
Quote from: Werewolf
All he can do is revoke her probation if she breeds again.
Thus it's enforceable, in that there are negative consequences if she breeds in violation of the deal. I agree with the others - Iron Bar birthing, followed by kid going up for adoption. To compare to other deals: A person guilty of DUI is often ordered to not drink. Often it requires the installation of a breathalyzer on their vehicle. There's nothing preventing the drunk from borrowing, renting, or buying a different vehicle to drive drunk in. Is the order to not drive drunk still unenforceable?
Post by: Werewolf on March 03, 2005, 10:18:52 PM
She wins the challenge and she can get pregnant without violating parole and going to the joint. Plus she gets to keep the kid if that is her wish. Lose the challenge and she's no worse off than if she hadn't appealed at all. Challenging the ruling is a win/neutral for her. She really can't lose.
Does she have to get her own lawyer for the appeal?
If she's got to pay for one herself then she had best abstain from one of life's little pleasures for about 10 years or risk going to the joint - as you correctly pointed out.
Post by: ilbob on March 03, 2005, 10:18:52 PM
the answer is that you revoke the parole or probation if the condition is violated.
Post by: Werewolf on March 03, 2005, 10:18:52 PM
how do you enforce any condition of probation or parole?
the answer is that you revoke the parole or probation if the condition is violated.
The courts cannot enforce the conditions of probation and/or parole. In other words the courts cannot force nor prevent action by the parolee thus no enforcement. All the court can do is revoke the parole if a condition is violated.the answer is that you revoke the parole or probation if the condition is violated.
Semantics? Maybe...
Perhaps Mr. Clinton can help us define enforce...
