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To: gdani
"When it comes to restrictions placed on an offender via probation, the restrictions must be related to the underlying offense and the desire of the court to prevent further offenses of the same type. Judge/courts simply do not have a blank check to place any/all kinds of conditions of probation on offenders simply because they are the judge & they say they can do it."

I don't believe that. Judges can include conditions aimed at preventing any further criminal conduct regardless of whether it is the same type of conduct that got the person in trouble in the first place or not. For instance, standard conditions where I live include things like prohibitions on consuming or possessing intoxicating beverages. Going to bars is prohibited. Associating with felons or anyone who participates in illegal use, sale, or distribution of controlled substances is prohibited, as is associating with anyone your probation officer tells you to stay away from. Possessing firearms or any deadly weapons is prohibited. Probationers are required to be employed or enrolled as students, and are required to pay their bills, child support, and so on. They can't leave the state without permission. They may be required to submit to random drug testing and enroll in and complete drug treatment as recommended by the probation officer, and so on. These are just the standard provisions. Other conditions are often added in. I'm taking these directly from the form the court requires us to have our clients sign when they plead to probation. I have one right in front of me and it's used by all of the judges in my judicial district. The ones used in juvenile court contain more conditions and are far more restrictive.

As for the issue of prohibiting procreation, I don't doubt that appellate court decisions have thrown such conditions out. We have a constitutionally protected right to bear and raise children. But the issue becomes cloudy when we start talking about juveniles. I don't know whether this was a case from a juvenile court or not. I don't have time to do any research, but I believe that a juvenile could be found delinquent or at a minimum be declared a member of a "family in need of services" (or your state's equivalent) just for running around and having sex with people. They bring up sexual contact all the time in juvenile cases although I will say it's always been ancillary to other conduct they are complaining about at least in the juvenile cases I have handled. Generally it's part of a case of a juvenile who is habitually disobedient to his or her parents, skips school, uses drugs, engaging in other criminal conduct, etc. Judges do want to stop these kids from fooling around because they don't want these immature juveniles who can't even take care of their own problems getting knocked up. And if the judge were aware of a situation where a little juvenile "crank ho" was trading drugs fro sex, you can bet the judge would want to stop that too.

You are right in saying that judges don't have a blank check to put just any old conditions on probation. But, the reality is that even if the judge maybe crosses the line a little and throws in a condition that a higher court wouldn't hold up, the probationer better darned well abide by that condition anyway because unless and until a higher court says otherwise that condition stands and that probationer is likely to go to jail if he violates that condition, and appeals take a long time.

I have to admit that I have agreed to conditions I thought were unconstitutional before, and have agreed to sentences I believe were illegal sentences. In each case I advised my clients as to my opinion of the conditions or sentences, and they have opted to take the deals anyway because they believed that was in their best interests. I've also had cases where after a trial judges imposed illegal sentences or ordered conditions I think would not have stood up on appeal. In most of those cases though after discussing it with my client we've opted not to do anything about it because it was something that just wasn't worth fighting over. I don't know enough about the case mentioned in this article to determine whether the judge committed reversible error or whether it would be worth it to fight about it even if the judge did commit reversible error.
88 posted on 09/30/2005 10:03:41 AM PDT by TKDietz
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To: TKDietz

Thanks for the thorough & thoughtful reply.


91 posted on 09/30/2005 10:12:34 AM PDT by gdani
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