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September 29, 2004

Fascinating (non-Blakely!!) Ohio decision

Today Ohio continued its recent trend (noted here and here) of being a very interesting sentencing state when the Ohio Supreme Court handed down its decision in State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888 (Sept. 29, 2004) (available here). The case involves the sentencing of a defendant who pled guilty to "two counts of nonsupport ...., a fifth-degree felony." And the decision's opening paragraph, written by (Ohio State College of Law alum) Chief Justice Thomas Moyer, gives you the essentials:

Appellant, Sean Talty, challenges the imposition of a condition of community control that ordered him to make "all reasonable efforts to avoid conceiving another child" during his five-year probationary period. Because we hold that the antiprocreation order is overbroad, we vacate that portion of the trial court’s sentencing order.

Significantly, the majority of the Ohio Supreme Court in Talty, while recognizing that an antiprocreation order raises serious constitutional issues, decides the cases on state law/statutory grounds:
[W]e hold that the antiprocreation order is overbroad under Jones, 49 Ohio St.3d at 52, 550 N.E.2d 469, and vacate that portion of the trial court’s sentencing order. Given our disposition, we need not address Talty’s constitutional and remaining nonconstitutional challenges to the antiprocreation condition.

Notably, two of the seven Justices of the Ohio Supreme Court dissented. Justice Paul Pfeifer (also an Ohio State College of Law alum) has this to say:
Talty was ordered to "make all reasonable efforts" to avoid fathering another child. I consider this sanction appropriate, or reasonable, and proportionate, under the egregious circumstances of this case because the sanction relates directly to the crime of which Talty was convicted and is tailored to prevent even more instances of felony nonsupport. Given Talty's propensity to sire children, the antiprocreation condition must also be considered in the nature of punishment.

September 29, 2004 at 02:27 PM | Permalink


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Very interesting case. I have to agree with the dissent, at least in part, in that the lower court will impose the condition mandated by the majority and then the defendant and the ACLU will appeal again for the Ohio Supreme Court to rule on the merits of the constitutional issue.

I had to giggle, then frown, when I read the trial judge's description of the condition re: "all reasonable efforts to avoid conceiving another child" -- "I don't know what those reasonable efforts are...." But then I was seriously perplexed. How can one define "reasonable efforts" in this hotbed area? "Reasonable efforts" presumes that his probation will not be revoked (or he will not otherwise be penalized under Ohio law) even if he sires another child, so long as he took efforts to prevent such impregnation. How much birth control is enough? The most common form, condoms, only has something like a 70% success rate (mostly due to improper use). But condoms are an inexpensive and widely used method. Is that enough? What if he's religious and only believes in the rhythm method? Would the sexy pillow talk "when did you last ovulate, baby?" be "reasonable efforts"?

Compare this with another "reasonable efforts" condition also imposed on this defendant... employment. It's pretty easy to say what "reasonable efforts" are to maintain employment during the period of release... go to the job, don't be tardy, make efforts to fulfill the work requirements, follow workplace policy, etc. If the guy gets laid off because the factory lost its biggest client, well, he won't be revoked. But if he doesn't show up for 3 work days in a row, then he will.

How can that correlate to something as prickly and sensitive as bedroom behavior without a simple ban on sex? Of course, had the judge ordered abstinance-only release, there would be serious constitutional issues there (and the judge would likely be setting this guy up for failure... hmm, sounds like the sex education school debate I heard about on NPR this morning).

Why isn't this condition merely void for vagueness?

Posted by: District Clerk Battling Blakely | Sep 29, 2004 3:36:34 PM

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