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September 12, 2008

"Travis judge tells woman to stop having kids"

The title of this post is the title of this alternative sentencing story out of Texas.  Here are some of the basic details:

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."...

The article goes on to nicely review the constitutional questions that this condition of probation presents, with the help of a few law professors:

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."

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."

September 12, 2008 at 05:08 PM | Permalink


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I used to work in the Texas state court system in cases involving abused and neglected children. (I was court appointed counsel for the children.) It wasn’t uncommon for judges to put unconstitutional (or otherwise legally unenforceable) restrictions on parents, knowing that they were legally unenforceable, but hoping that they would be followed anyway because they were in everyone’s best interest. I know this sounds horrible, but from my perspective, I’m glad the court did it. Maybe that makes me a bad lawyer. Maybe that means I’m a hypocrite when I rail against the current administration for its lawlessness. But I think at least some of the parents needed to be told they better do what’s morally right or they’ll go to jail, even if in the end they couldn’t actually be sent to jail.

Posted by: Hypocrit | Sep 12, 2008 5:31:00 PM

I should add that I practiced in Travis County (where the plot of the linked article takes place).

Posted by: Hypocrit | Sep 12, 2008 5:32:22 PM

PT Barnum once said there was a sucker born every minute. And for that, we should all thank God because how else would anyone make a buck in this world. Seeing as this judge's ruling has the potential to take a few suckers out of the world, I oppose it on moral grounds. It just aint right.

Posted by: Daniel | Sep 12, 2008 9:26:38 PM

i think you people are missing the point here -


FIVE - SIX - SEVEN ??? - maybe she is real good at popping out welfare wards of the state - or maybe she could go home to mexico and pop-out all she wants ????


Posted by: chuck | Sep 14, 2008 8:00:34 AM

i think you people are missing the point here -


FIVE - SIX - SEVEN ??? - maybe she is real good at popping out welfare wards of the state - or maybe she could go home to mexico and pop-out all she wants ????


Posted by: chuck | Sep 14, 2008 8:02:33 AM

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