Digital Commons @ Western New England University School of Law
Abstract
In State v. Oakley, the all-male four-justice majority held that a probation condition restricting David Oakley\u27s 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\u27s approach is compared to that of other courts in cases involving, in some way, decisions limiting a probationer\u27s 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\u27 procreation rights, which the Oakley restriction is, should survive constitutional review
