Texas Judge's Probation Condition Is Definitely Not Pro-Baby
MayorBob.
Posted to Legal on Thu Sep 18, 2008 at 06:47:07 AM EST (promoted by port1080). RSS.
By all accounts, Felicia Salazar failed a critical test of being a mother - protecting your children from harm. The Travis County, Texas woman admitted she didn't intervene while the father of her 19-month-old daughter brutally beat the child. Never in trouble with the law before, she cut a deal with the court that got her probation rather than prison time. But, should the judge in the case be able add that Salazar can have no children during her probation? That's the question troubling some who think the judge overstepped his bounds.
Salazar's daughter suffered broken bones and other injuries during an attack which earned the father, Roberto Alvarado, a 15 year stretch in state prison. As for Ms. Salazar, she was charged with failure to provide protection and medical care for her daughter. She won't have that daughter to put at risk anymore; the girl was placed in foster care where she is reportedly "thriving." The 20-year-old Salazar was informed her sentence would involve community service, psychological counseling, and an order that she not bring anymore children into the world for the duration of her probation. When Judge Charlie Baird was asked about the unusual sentence he responded, "when you look her background, the circumstances of this case, a reasonable condition of her probation was that she not conceive or bear any children." Besides, neither Salazar nor her lawyer objected to it.
That's not necessarily true, according to Salazar's attorney, Kent Anshutz. Anshutz says his client is "concerned" about the order and he's mulling their options. He is not questioning Baird's "sentiments" in the case, he just questions how enforceable such an order could be. According to Baird, Texas law allows wide latitude to judges in tagging on conditions of probation. Law professor Douglas Laycock, who used to teach at the University of Texas, said Baird's order is "probably not constitutional":"The state rarely tries to stop people from becoming parents, so there has not been much occasion to litigate that. 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."
This is a point with which Keith Hampton, second vice president of the Texas Criminal Defense Lawyers Association, agrees. He says that while, "it may be a good thing that this defendant heard someone in authority tell them `We don't think you should have any more kids'" it probably doesn't stand a chance of holding up on appeals. However, Laycock did point to a Wisconsin case of a man in arrears on his child support who was ordered by a court not to father any more children. That decision was upheld. Baird scoffs at the notion that his order is onerous, "if I put her in prison for 10 years, she could not conceive or bear children." While Baird says he has never issued an order like this one, he seems to have a history of crafting unconventional sentences which tend to irk prosecutors more often than defense lawyers.
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