Thursday, July 23, 2020
This article tackles a reemerging debate between trial courts and just about everyone else: can a judge condition an offender’s early release or probation on successfully avoiding future pregnancy? Wading into such controversial territory has its risks, as Tennessee Judge Sam Benningfield discovered in 2017 when he conditioned inmates’ early release on their having vasectomies or long-term birth control implants. The order generated outrage across the political spectrum, earning Benningfield a formal reprimand from the Tennessee Board of Judicial Conduct and even sparking a bill that would specifically prohibit any similar future quid pro quo.
While the backlash to Judge Benningfield’s order in particular is well deserved, his critics also reject wholesale the notion that courts could ever be justified in conditioning probation or early release on avoiding conception. This article stakes out new territory in the debate, arguing that such orders may protect a child’s right to a fair start in life without violating parents’ constitutional rights nor their human right to found a family if (1) the offender may choose the particular birth control method and (2) the orders only apply to severe child abuse or neglect offenders during a limited rehabilitative period.
Grounded in the foundational principle that parents known to abuse and neglect children should not have more absent rehabilitation, and cognizant of structural inequities of race, class, gender, and national origin, the article presents a model “Fair Start” order that may be implemented in courts across the country.