Bailey Wharton, Associate Member, University of Cincinnati Law Review
While State v. Chapman is not the first case in Ohio to disallow a restriction on procreation as a condition of community control, the majority decision will certainly make it more difficult for trial courts to permissibly impose this type of anti-procreation condition in the future.
First, this article will summarize the Supreme Court of Ohio’s majority and dissenting opinions in State v. Chapman, provide a brief overview of the scope of judges’ discretion in imposing community control conditions that limit fundamental rights, and set out the proper standard of review for questions involving fundamental rights limited by community control conditions. Next, this article will argue that the majority in Chapman modified the reasonableness test in State v. Jones to include a heightened burden for community control conditions, thus limiting fundamental rights, and it will consider how this new application of the Jones test will, or should be, used in the future.
A. State v. Chapman
In December 2020, the Supreme Court of Ohio issued a decision addressing whether a community control condition ordering London Chapman to “make all reasonable efforts to avoid impregnating a woman” during his community control period impermissibly infringed upon Chapman’s fundamental right to procreate. In 2018, Chapman was convicted of felony failure to pay child support for his eleven children and was sentenced to community control. The trial court imposed several conditions as part of his community control sentence, but the condition at issue in this case is the restriction on procreation. After two unsuccessful appeals, the Supreme Court of Ohio granted Chapman’s discretionary appeal.
The majority opinion, authored by Justice DeWine, invalidated the community control provision prohibiting procreation, ruling that it “is not reasonably related to the goals of community control, nor is it reasonably tailored to avoid impinging Chapman’s liberty no more than necessary” under the State v. Jones reasonable-relationship test. Justice French’s dissent, while agreeing with the majority that the Jones test is the proper test, argues that the majority improperly applied the Jones test by imposing a “more-exacting-justification requirement” beyond the traditional reasonable-relationship requirement.
B. Standard of Review for Limitations on Fundamental Rights by Community Control Conditions
i. Community Control Conditions that Limit Fundamental Rights
The U.S. Supreme Court recognizes the right to procreation as a fundamental right protected by the U.S. Constitution. However, Ohio has recognized that “someone who commits a crime and is duly convicted surrenders key aspects of his liberty…[and] when a person has broken the laws of society and has been afforded the due process of the law, the government may legitimately deprive that person of his liberty.” Thus, limitations on fundamental rights of convicted criminals are permissible “provided that such limitations further the statutory goals of community control and are not overbroad.”
ii. State v. Jones Reasonable-Relationship Test
Following the logic outlined in the above paragraph, Ohio courts do not apply a strict scrutiny analysis when reviewing whether a criminal punishment is a permissible limitation on a fundamental right. Rather, the Ohio Supreme Court employs the reasonably-related test established by the Court in State v. Jones. Under Jones’ three-part test, “courts should consider whether the condition (1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted, and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation.” The Jones test analysis is primarily focused on the fit of a community control condition implicating a fundamental right as it relates to the crime committed.
A. Did the Majority Correctly Apply the Jones Test in Determining that the Anti-Procreation Condition Did Not Have ‘Some Relationship’ to the Crime of Failing to Pay Child Support?
The majority in this case correctly determined that the standard of review for this case was a reasonableness analysis and that the Jones test was the proper test to employ. However, it can be argued, as Justice French argued in her dissent, that the majority imposed a higher burden requirement in the second prong of the Jones test than the simple “some relationship to the crime” consideration. In fact, it appears the majority applied a much narrower reading of the “some relationship” language—almost like they required a direct relationship to the crime.
In applying this higher, “more exacting” fit justification for community control conditions that implicate fundamental rights, the majority focused heavily on the language of the crime of which Chapman was convicted and whether or not limiting his ability to have more children was actually related to that exact crime. Chapman was convicted under Ohio Revised Code § 2919.21, which “makes it a crime to fail to provide support as required by court order.” Therefore, legally, the criminality of Chapman’s failure to support was the “failure to provide the mandated support…as his means and ability allow,” not fathering a large number of children or the “failure to support one’s dependents in and of itself.” The majority heavily relied on this distinction—that “Chapman’s criminal conduct was not fathering children, it was failing to pay child support”—in its explanation for why the restriction on procreation simply did not meet the “more exacting” justification and was not “reasonably tailored to avoid impinging Chapman’s liberty.”
The dissent strongly pushes back against the “heightened burden” the majority inserted into the Jones analysis. Justice French argues that the majority did not simply apply the Jones test in its original form, but “modifie[d] the Jones test [to] impos[e] a higher burden for when a community-control condition that implicates a fundamental right is ‘not necessarily intrinsic to community control but [is] tailored to the rehabilitation of the offender.’”
The dissent correctly calls out the majority for altering the Jones test to include a higher burden than traditionally required under a reasonable-relationship test. The majority casually introduced a new, “more exacting” justification requirement but offered no clarification for when or in what exact types of situations this new requirement must be employed. The majority’s opinion implies that some community control conditions that limit fundamental freedoms will need to be more directly related to the crime a person is convicted of which assumes that there may be some other conditions that limit fundamental rights that will only need to have “some relationship” as seen in the Jones test.
B. Effect of Introducing the ‘More Exacting’ Justification Requirement into the Jones Test
This decision will undoubtedly create some confusion among trial courts when it comes to knowing how closely related a condition must be for it to survive the new modified Jones standard. It could also be viewed as potentially curtailing the discretion of trial courts to impose certain types of community control conditions that have historically been viewed as reasonable under the Jones test, but now, following the decision in Chapman, are no longer permissible. In fact, in another case from Ohio involving the same anti-procreation condition, the Supreme Court of Ohio issued a sua sponte discretionary appeal and reversed the judgment of the court of appeals based on the Court’s decision in Chapman, and it remanded the case back to the trial court to reimpose a sentence that tracks with the holding in Chapman.
There are real concerns as a result of the majority’s opinion in this case. Rather than sticking to a straightforward application of the Jones test, which the majority acknowledged was the proper test for the issue of limitations of fundamental rights in community control conditions, the majority haphazardly modified the test to include a higher burden of relatedness without any real qualifications or clarifications for how the modified burden is to be applied across the board. By not explaining what types of conditions “are not necessarily intrinsic to community control” it will be very hard for trial courts to know which types of conditions will require “more exacting” justifications so to be considered permissible limitations on a fundamental right. Without further clarification, this decision opens the floodgates and may result in an onslaught of appeals seeking to invalidate community control sentences that have all previously been found permissible under the original Jones test analysis.
 See generally State v. Talty, 103 Ohio St. 3d 177, 2004-Ohio-4888, 814 N.E.2d 1201 (“[T]he antiprocreation order is overbroad.”).
 State v. Chapman, 163 Ohio St. 3d 290, 2020-Ohio-6730, 170 N.E.3d 6, at ¶¶ 1,6.
 Id. at ¶ 2.
 Id. at ¶ 6.
 Chapman at ¶ 29 (French, J., dissenting).
 Id. at ¶ 30 (French, J., dissenting).
 State v. Talty, 103 Ohio St. 3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, at ¶ 8 (citing Skinner v. Oklahoma, 316 U.S. 535, 541 (1943)).
 Chapman at ¶ 13.
 Id.; see also Chapman at ¶ 15 (“[S]uch a limitation is a permissible condition of probation if it reasonably furthers the goals of rehabilitation and protecting society.”) (citing United States v. Knights, 534 U.S. 112, 119 (2001)); see generally Chapman at ¶ 16 (“[A] trial court can impose community-control sanctions that limit the offender’s fundamental rights.”).
 See Chapman at ¶ 14 (“[W]e have never applied a strict-scrutiny analysis to a criminal punishment.”).
 See State v. Jones, 49 Ohio St. 3d 51, 53, 550 N.E.2d 469 (1990); see generally Talty at ¶ 16 (“Jones stands for the proposition that probation conditions must be reasonably related to the statutory ends of probation and must not be overbroad. Because community control is the functional equivalent of probation, this proposition applies with equal force to community-control sanctions.”).
 Jones, 49 Ohio St. 3d at 53.
 See also Talty at ¶ 14 (“The requirement that a condition may not be overbroad is connected to the reasonableness of a condition.”).
 See Chapman at ¶ 14.
 Id. at ¶ 30 (French, J., dissenting); Jones, 49 Ohio St. 3d at 53.
 Chapman at ¶ 19 (“the justification must be more exacting so as to ensure that the condition does not limit the probationer’s liberty more than is necessary to achieve the goals of community control.”).
 Chapman at ¶¶ 19, 24, 25.
 Id. at ¶ 24.
 Id. at ¶¶ 24, 25 (emphasis added).
 Id. at ¶¶ 19, 25, 28.
 Id. at ¶ 30 (French, J., dissenting).
 Id. at ¶ 33 (French, J., dissenting).
 Id. at ¶ 19; see also Id. at ¶ 30 (French, J., dissenting) (“[T]he majority now requires an amorphous “more exacting” justification for the community-control condition at issue here.”) (citing Majority opinion at ¶ 19).
 See State v. Jones, 49 Ohio St. 3d 51, 53, 550 N.E.2d 469 (1990).
 See Chapman at ¶ 30 (French, J., dissenting) (“I fear the majority’s heightened burden will lead to confusion and uncertainty as courts try to grapple with whether the more-exacting-justification standard applies to a court’s imposition of a community-control condition that implicates a fundamental right.”).
 State v. Anderson, 163 Ohio St. 3d 205, 2020-Ohio-6910, 168 N.E.3d 1187, at ¶ 1; see also State v. Anderson, 2018-Ohio-342, at ¶ 9 (rejected Anderson’s non-constitutional argument that “the community-control condition failed to satisfy the Jones test…because he was not convicted of a crime involving procreation, [and] the community-control condition is not reasonably related to rehabilitation.”).
 Chapman at ¶ 17.
 Id. at ¶ 18.