Order Barring Communication Between Inmate/Probationer and Daughter for 11 Years Is Unconstitutional

From Tuesday’s Wisconsin Court of Appeals decision in State v. Brister, by Judge Sara Geenen, joined by Chief Judge Joseph Donald and Judge Pedro Colón:

On June 22, 2023, Brister was sentenced in two unrelated cases. In Milwaukee County Circuit Court Case No. 2020CF367, which is not part of this appeal, Brister was sentenced for possessing a firearm as a felon (“the 2020 case”). He illegally possessed a gun while also committing acts of domestic abuse against his live-in girlfriend, Marie.

In Milwaukee County Circuit Court Case No. 2021CF3563, the case before us on appeal, Brister was sentenced for child neglect and OWI (1st) [Operating While Intoxicated] with a minor in the car, after Brister was pulled over for speeding and weaving on I-43 while Diana, then two years old, was unsecured in the backseat of the car. Diana was not injured, so the charge of child neglect alleged that harm would be a natural and probable consequence of the neglect. During the traffic stop, police found a loaded gun under the rear passenger seat. Brister called Marie to pick Diana up from the traffic stop, in violation of a no-contact order that had been imposed while he was released on bail in the 2020 case…. Brister’s criminal record … included 2006 convictions for burglary and uttering a forgery, a 2009 conviction for marijuana possession, and three convictions for burglary in 2011….

The circuit court’s sentencing remarks focused on the gravity of the offenses, noting the danger to which Brister had exposed his daughter and the seriousness of twice having a gun while intoxicated. The court summarized the most relevant sentencing factors when rejecting Brister’s recommendation for probation:

The first thing I have to consider is whether probation is appropriate. I can’t think of anything further from appropriate, than putting you on probation, for these offenses. You have demonstrated, by your behavior, not only by your criminal record, not only by your incredibly dangerous behavior in not following court orders and having that firearm and being drunk while you have the firearm, and battering [Marie], engaging in disorderly conduct. Not only that, but then adding on, that you needed to neglect and endanger your two-year-old while you were driving with her, again drunk, at incredibly high speeds, and having the firearm accessible to her. It defies description.

The court sentenced Brister to six months in jail for the OWI, concurrent to 18 months of confinement and 18 months of extended supervision for child neglect. Those sentences were made consecutive to four years’ confinement and four years’ extended supervision for the 2020 case. Thus, the total sentence for both cases was eleven years’ imprisonment, equally divided between confinement and extended supervision.

After stating the sentences, the court ordered that Brister have no contact with Marie or Diana for the entire eleven-year sentence, stating: “I’m going to find, as conditions of the time that you are on—either serving your sentence, initial confinement, or extended supervision—I’m going to order that there be a no contact order with [Marie] and [Diana].”

The appellate court held that, though restrictions on constitutional rights as part of a criminal sentence are often constitutional, this one went too far in restricting Brister’s First Amendment rights and parental rights; an excerpt:

The scope and duration of the no-contact order renders it overly broad and unreasonable with respect to Diana. The circuit court imposed the no-contact order with Diana because Diana was a victim of two of the crimes for which Brister was convicted and sentenced—child neglect and OWI (1st) with a minor in the car. However, the actual sentence for those two crimes amounted to three years of the total eleven-year sentence. The other eight years were a result of the unrelated 2020 case involving Marie.

That is, the circuit court imposed a no-contact order with respect to Diana that is almost quadruple the time of the sentence for the crime that justified the no-contact order in the first place. The circuit court did not explain this disparity, and in our view, imposing an eleven-year no-contact order between a father and his daughter is irrational (and certainly not narrowly tailored) where Brister did not cause harm to Diana and the sentence for the crime justifying the no-contact order is itself only three years.

We also view the scope of the no-contact order to be overly broad and not narrowly tailored. The circuit court correctly described Brister’s criminal acts as “dangerous,” but it failed to explain how no contact whatsoever between Brister and Diana for the entire eleven-year sentence actually protects Diana. Under the circuit court’s no-contact order, Brister is not only prohibited from unsupervised face-to-face contact with Diana, he is prohibited from communicating with her in any way, including during the period of time that Brister is confined. He cannot call, text, email, or send letters to his daughter for eleven years. Protecting Diana, as a victim of Brister’s crimes, is a significant and legitimate goal, but on this record, we see no rational connection between the scope and duration of the no-contact order and the circuit court’s purported goal of protecting Diana.

Finally, we observe that the constitutional right abridged here, Brister’s right to a parent-child relationship with Diana, is a finite right. It exists only so long as Diana is a legally recognized child. Put another way, Brister has no constitutionally protected right to a parent-child relationship with Diana after she reaches the age of majority. Diana was four years old when Brister was sentenced, meaning that Brister cannot have contact with her until she is 15 years old. The vast majority of Brister’s finite right to a parent-child relationship is, in practical terms, terminated by the eleven-year no-contact order. While being incarcerated will, in all likelihood, negatively affect the parent-child relationship between Brister and Diana, in this case, the circuit court effectively terminated Brister’s right to a parent-child relationship with Diana without any of the legal protections attendant to formally and legally terminating parental rights.

{We note that this is an extreme case. Not every no-contact order imposed under Wis. Stat. § 973.049(2) between a parent and child will effectively terminate the parent-child relationship like the one considered in this appeal. We also observe that cases involving other crimes committed by a parent against their children may well justify a lengthy and absolute no-contact condition under § 973.049(2). However, under the facts of this case, the no-contact order presented here is irrational, overly broad, and not narrowly tailored to serve the admittedly significant interest of protecting Diana.}