People v. Pointer

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People v. Pointer[1] is a criminal law case from the California Court of Appeal, First District, is significant because the trial judge included in his sentencing a prohibition on the defendant becoming pregnant during her period of probation. The appellate court held that such a prohibition was outside the bounds of a judge's sentencing authority. The case was remanded for resentencing to undo the overly broad prohibition against conception.

The trial court's novel sentence, along with the deeply disturbing facts of the case and the appellate court's illustrative discussion of the constitutional and policy problems with pregnancy-related conditions to probation, has merited its inclusion in a widely used Criminal Law casebook for 1L law courses.[2] It is featured in two first-year Criminal Law courses at South Texas College of Law in Houston. The case has also been discussed or mentioned in nearly two dozen academic journal articles relating to court-imposed restrictions on conception or birth,[3] and cited or mentioned in at least sixty-six judicial legal opinions in California,[4] Kansas,[5] Ohio,[6] and Wisconsin.[7]


Ruby Pointer was convicted of child endangerment and violation of a child custody decree; the trial court sentenced her to one year in county jail and five years of probation, including a condition that she must not conceive children during her probation. Pointer adhered to a rigorously disciplined macrobiotic diet that excluded all meat and dairy products, as well as many vegetables.[8] She was a single mother and imposed this diet on her young children as well, disregarding contrary warnings from a physician.[9]

In October 1980, the father of one of the children contacted California's Children's Protective Services, who sent a social worker to meet with the boys and their mother. The state agency instructed Pointer to meet with a pediatrician to discuss the obvious malnourishment of the children, but Pointer declined to do so. A month later, Pointer brought one of the children to a doctor, who observed the child was in the throes of starvation - emaciated, semicomatose, and in a state of shock, and in immediate need of hospitalization. When Pointer refused intravenous feeding of the child, the pediatrician contacted the police, who hospitalized the child and saved his life.[10] As soon as the child was discharged from the hospital, Pointer took her children and fled to Puerto Rico. The FBI located her there several months later and arrested her.[11]

Pointer was charged and found guilty by jury of violation of California Penal Code sections 273 (felony child endangerment), and 278.5 (observance of child custody decree).[12] She was sentenced to five years probation on the condition that she serve one year in county jail; participate in counseling; not be informed of the whereabouts of Jamal, her younger son, and have no unsupervised visits with him; have no child custody of her children, without prior court approval; and that she not conceive during the probationary period.[13]

The California Court of Appeal affirmed all conditions of the sentence, except for the last one, the prohibition to conceive. Pointer challenged this condition as an unconstitutional restriction of her fundamental rights to privacy and to procreate.[14]

The Court found the condition reasonable because the condition was related to the crime for which she was convicted;[15] even so, it held that it infringed on the fundamental right of privacy protected by both the federal and California state constitutions.[16] The Court concluded that the condition prohibiting Pointer from procreating during her probationary period was overbroad and that other less restrictive alternatives were available to the trial judge. The case was remanded to the trial court for resentencing consistent with the Court's views.

George Deukmejian was the lead prosecutor in this important appeal before becoming Governor of California.[17]


  1. ^ 151 Cal.App.3d 1128 (1984)
  2. ^ Phillip E. Johnson & Morgan Cloud, Criminal Law: Cases, Materials, and Text (7th ed. West Group 2002) p. 124.
  3. ^ See, e.g., Prenatal Cocaine Exposure: How Should The Government Intervene?, 18 Am. J. Crim. L. 61, 86 (1990); "No New Babies?" Gender Inequality And Reproductive Control In The Criminal Justice And Prison Systems, 12 Am. U.J. Gender Soc. Pol'y & L. 391, 425+ (2004); Protecting Employees' Fetuses From Workplace Hazards: Johnson Controls Narrows The Options, 14 Berkeley J. Emp. & Lab. L. 142, 178+ (1993); When Crack Is The Only Choice: The Effect Of A Negative Right Of Privacy On Drug-Addicted Women, 15 Berkeley Women's L.J. 327, 337+ (2000); The Social Meaning Of The Norplant Condition: Constitutional Considerations Of Race, Class, And Gender, 9 Berkeley Women's L.J. 9, 57+ (1994); Beyond Survival: The Procreative Rights Of Women With Hiv, 14 B.C. Third World L.J. 1, 42 (1994); Compulsory Contraception As A Condition Of Probation: The Use And Abuse Of Norplant, 58 Brook. L. Rev. 979, 1019+ (1992); Involuntary Contraceptive Measures: Controlling Women At The Expense Of Human Rights, 10 B.U. Int'l L.J. 351, 383+ (1992); Control Of Childbearing By Hiv-Positive Women: Some Responses To Emerging Legal Policies, 41 Buff. L. Rev. 309, 449+ (1993); The Creation And Perpetuation Of The Mother/Body Myth: Judicial And Legislative Enlistment Of Norplant, 41 Buff. L. Rev. 703, 777+ (1993); Can A Pregnant Woman Morally Refuse Fetal Surgery?, 79 Cal. L. Rev. 499, 540+ (1991); Speaking For A Child: The Role Of Independent Counsel For Minors, 75 Cal. L. Rev. 681, 706 (1987); Making Pedophiles Take Their Medicine: California's Chemical Castration Law, 17 Buff. Pub. Int. L.J. 123, 175+ (1999); The Judge In The Delivery Room: The Emergence Of Court-Ordered Cesareans, 74 Cal. L. Rev. 1951, 2030+ (1986); Conditioning A Woman's Probation On Her Using Norplant: New Weapon Against Child Abuse Backfires, 17 Campbell L. Rev. 301, 315+ (1995); Prosecuting Teenage Parents Under Fornication Statutes: A Constitutionally Suspect Legal Solution To The Social Problem Of Teen Pregnancy, 5 Cardozo Women's L.J. 121, 151 (1998); Conditional Liberty: Restricting Procreation Of Convicted Child Abusers And Dead Beat Dads, 56 Case W. Res. L. Rev. 479, 490+ (2005); The Norplant Debate: Birth Control Or Woman Control?, 25 Colum. Hum. Rts. L. Rev. 131, 169+ (1993); Unacceptable Collateral Damage: The Danger Of Probation Conditions Restricting The Right To Have Children, 38 Creighton L. Rev. 611, 660+ (2005); California Injects New Life Into An Old Idea: Taking A Shot At Recidivism, Chemical Castration, And The Constitution, 46 Emory L.J. 1285, 1326 (1997)
  4. ^ See, e.g., People v. Zaring, 10 Cal.Rptr.2d 263, 268+, 8 Cal.App.4th 362, 370+ (Cal.App. 5 Dist. Jul 22, 1992); People v. Sargent, 81 Cal.Rptr.2d 835, 843+, 970 P.2d 409, 417+, 19 Cal.4th 1206, 1218+ (Cal. Feb 01, 1999); People v. Phillips, 214 Cal.Rptr. 417, 419+, 168 Cal.App.3d 642, 646+ (Cal.App. 4 Dist. May 22, 1985)
  5. ^ State v. Mosburg, 768 P.2d 313, 315+, 13 Kan.App.2d 257, 259+ (Kan.App. Feb 03,1989)
  6. ^ State v. Talty, 2003 WL 21396835,p.5, 2003-Ohio-3161, 3161+ (Ohio App. 9 Dist. Jun 18, 2003)
  7. ^ State v. Oakley, 629 N.W.2d 200, 218+, 245 Wis.2d 447, 487+, 2001 WI 103, 103+ (Wis. Jul 10, 2001); State v. Volk, 514 N.W.2d 424, 424+, 181 Wis.2d 369, 369+ (Wis.App. Dec 08,1993)
  8. ^ Pointer, 151 Cal.App.3d at 1131
  9. ^ Pointer, 151 Cal.App.3d at 1132.
  10. ^ Id.
  11. ^ Pointer, 151 Cal.App.3d at 1133.
  12. ^ Id.
  13. ^ Id.
  14. ^ Pointer, 151 Cal.App.3d at 1136-41.
  15. ^ Pointer, 151 Cal.App.3d at 1138.
  16. ^ Pointer, 151 Cal.App.3d at 1139-40.
  17. ^ Pointer, 151 Cal.App.3d at 1131.