No Contact Provisions in Pre-Trial Release and on Probation
by: Rjohnson • February 6, 2011 • no comments
I had a client recently who had been charged with a list of misdemeanors, of which the most serious were DUII and menacing. He had pleaded guilty to some of the charges, including DUII and Interfering With a 911 Call, and the remainder were dismissed.
His probation forbade any contact with his wife. She had been the victim of the dismissed menacing charge. She was not the victim of any other offense. As far as I can tell, she never wanted the no-contact provision, but no one had asked her about it. However, trial counsel did not object to a probation term forbidding contact with her. It took me several months after getting involved, and two years after the conviction, before I could get the no-contact provision lifted. I have two other cases pending right now where my client has been forbidden from any contact with his children, although the children are not the victims or alleged victims of any crime.
None of these clients are saints. But none of them are hardened criminals, either. Protecting children, victims or potential victims of domestic violence is obviously important. However, encouraging and maintaining family relationships is also important. Courts and probation departments routinely lose sight of the value, both to the defendant and to other family members, of maintaining those relationships. Moreover, the Due Process Clause of the Fourteenth Amendment protects a fundamental right in having and taking care of children, Troxel v. Granville, 530 US 57, 120 S Ct 2054, 147 L Ed 2d 49 (2000), and in marriage, Turner v. Safley, 482 US 78, 107 S Ct 2254, 96 L Ed 2d 64 (1987); State v. Martin, 282 Or 583, 580 P2d 536 (1978).
Under Martin, a court has less discretion to impose probation conditions that limit fundamental rights. I assume that a court also has less authority to impose pre-trial release restrictions that limit fundamental rights, but I am aware of no Oregon cases discussing that issue. Release conditions forbidding the defendant contact with a spouse or children might be a violation of the right to bail, the fundamental rights to family relations, to free association, or the right to choose a residence. This is also a place where "victim's rights" can benefit the defendant. Victims have an increasing right to be heard in the criminal justice system. If a nominal victim wants to resume a relationship with the defendant, courts are obligated to take that into account.
If a client is on pre-trial release, it will be challenging to get an appellate decision before the issue is mooted by trial. But mandamus is still possible in the right case. At sentencing, object to probation conditions prohibiting contact with a spouse or children. Plea bargains usually leave this sort of term open, and you can object to those probation conditions, or seek conditions less restrictive, than a complete ban. See State v. Kline, 155 Or App 96, 963 P2d 697 (1998) (permissible to require probationer to complete drug and anger-management counseling before fathering children). Talk to your client about this issue before entering into a plea bargain. Being able to go home and see his wife and kids might be more important to the client than the fine or jail time.
