Monday, July 25, 2005

For Once I Wish I Agreed With Alabama

Alabama apparently wants to make the punishment for sex offenders castration.

The good news: In retrospect, they now have come to the realization that it might be a wee bit unconstitutional.

The bad news: They may be wrong.

Proving that all idiotic history repeats itself, there are two major Supreme Court cases dealing with castration. The first is Buck v. Bell (274 U.S. 200 (1927)), perhaps Justice Oliver Wendell Holmes Jr.'s most infamous opinion, where he upheld Virginia's castration program for the feeble minded with the pithy "three generations of idiots are enough."

The second case was Skinner v. Oklahoma (316 U.S. 535 (1942)) In that case, the court overturned Oklahoma's castration law. However, it did so (and here's where it gets interesting) without overturning Bell. The ruling instead emphasis the Equal Protection deficiencies in Oklahoma's law:
Sterilization of those who have thrice committed grand larceny with immunity for those who are embezzlers is a clear, pointed, unmistakable discrimination. Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks. Oklahoma's line between larceny by fraud and embezzlement is determined, as we have noted, 'with reference to the time when the fraudulent intent to convert the property to the taker's own use' arises. We have not the slightest basis for inferring that that line has any significance in eugenics nor that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses. In terms of fines and imprisonment the crimes of larceny and embezzlement rate the same under the Oklahoma code. Only when it comes to sterilization are the pains and penalties of the law different. The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn. (316 U.S. at 541-42) (citations omitted)

In other words, the Court struck down the law because it irrationally distinguished between such crimes as Larceny and Embezzlement, one being punishable by castration, the other not. The court also noted that since castration obviously affected a fundamental right, "strict scrutiny" was the appropriate standard (Id., at 541). However, after Skinner, the eugenics movement began to fade, and no state was stupid enough to reenact a castration law (until now).

The question is, then, would a state law that mandated castration for sex offenders pass strict scrutiny (assuming Bell is still good law and castration is not per se unconstitutional)? I think one could make a compelling argument that it does. Sex offenders are a particular class of offenders whose "weapon," so to speak, is their genitalia and sex drive. The state could plausibly argue that depriving offenders of that "weapon" is no different than depriving felons of their right to bear arms. Indeed, in a sense the argument would make more sense in this case, since, to borrow from Frank Easterbrook, this compares "the right to bear arms, which is in the constitution, to the right to one's penis, which is not." There is, I believe, quite a bit of evidence that suggests that castration reduces the sex drive of human beings (no surprise there) and thus would be a valid hedge against recidivism. Ultimately, I think this is an argument that could be made.

I do not think that castration is sound policy, and think that Bell should be overturned. But as the jurisprudence stands now, I do not think Alabama's law is unconstitutional.

Would that I could agree with them this time.

A Public Defender and PrawfsBlawg have more, and thanks to Objective Justice's BlawgReview for the original tip.


Tom McKenna said...

The difference between Buck v. Bell and what Alabama seeks to do is that Alabama wants to punish a crime by doing something they believe will deter further crime. Buck v. Bell was just outright social engineering. Carrie Buck was not a convicted criminal. This also explains why Skinner is a better view, although I disagree with Skinner, since castration has nothing to do with deterring larceny. Castrating sex offenders might actually prevent those particular convicts from re-offending. Castrating a thief will not prevent him from stealing.

N.S.T said...

Wait, lemme get this straight. Beheading is considered cruel and unusual punishment the world over, and it merely kills instantly. But lopping the testicles off of other human beings-- something that causes infintely more pain and suffering, one imagines, to its victims--is even up for discussion? Waht kind of idiots are running this country? Besides that small matter of constitutionality, isn't there a serous question as to whether this is the most effective way to deter sex criminals? These people, for the most part-- and it's true of most criminals too, not just sex offenders-- don't just happen to be born with malicious intent to use their sexuality. They themselves are the victims of abuse, which screws up their wiring in their formative years. Of course they should be punished, and life sentences certainly do the trick of getting them off the streets. But if we think that any punishment is going to deter potential sex criminals, history shows us to be sorely mistaken.

Anonymous said...

It's worse than bad law; it probably won't work.

1). If you've been castrated, you may still have sufficient hormones provided by other glands to get an erection.

2). If you still lack those hormones, there are a number of avenues through which you can get testosterone injections.

3). If you're one of those sex offenders who get off on control, power, or pain, you'll just use a broomstick instead, and it'll be just as good to your mind.

Anonymous said...

At least Alabama has the guts to do something about this heinous crime against kids. I hope it becomes law. Sexual predators will LEAVE Alabama alone.