Incapacitation Through Maiming: Chemical Castration, the Eighth Amendment, and the Denial of Human Dignity

This year marks the tenth anniversary of California's enactment of the nation's first chemical castration law. This law requires certain sex offenders to receive, as part of their punishment, long-term pharmacological treatment involving massive doses of a synthetic female hormone called medroxyprogesterone acetate (MPA). MPA treatment is described as chemical castration because it mimics the effect of surgical castration by eliminating almost all testosterone from the offender's system. The intended effect of MPA treatment is to alter brain and body function by reducing the brain's exposure to testosterone, thus depriving offenders of most (or all) capacity to experience sexual desire and to engage in sexual activity. The procedure also carries severe side effects, including drastic reduction in sperm count, irreversible loss of bone mass, diabetes mellitus, pulmonary embolism and depression, to name but a few. Despite numerous predictions that this law would be quickly struck down as cruel and unusual, it remains on the books, and six additional states have followed California's lead with chemical castration laws of their own. Moreover, we are currently facing a new wave of legislative efforts to impose chemical or surgical castration as a condition for sex offenders' release from prison. The Supreme Court has identified the following questions as being key to a determination of whether a punishment is inherently cruel within the meaning of the Eighth Amendment: (1) Whether it violates the dignity of man, which is the basic concept underlying the Eighth Amendment; (2) Whether it violates evolving standards of decency; (3) Whether it involves the unnecessary and wanton infliction of pain - that is, pain that completely fails to further either retributive, deterrent, incapacitative or rehabilitative goals; and (4) Whether it involves torture or barbarous methods of punishment, such as drawing and quartering, burning at the stake, or physical castration. The Supreme Court has given little guidance as to how these principles are supposed to relate to each other, however, and therefore it is not entirely clear how a court would rule if it had to decide an Eighth Amendment challenge to the chemical castration laws. Are "human dignity and contemporary standards of decency" independent values, or does human dignity simply mean whatever is acceptable by contemporary standards Similarly, are barbarous punishments (such as torture) always unacceptable, or do they only become unacceptable if they completely fail to further any penological goal? The answer to these questions will determine whether the chemical castration laws ultimately stand or fall. The essay that follows will argue that the most effective and appropriate way to determine the relationship between these interpretive principles is to refer them back to the text of the Eighth Amendment, and particularly to the word cruel. Cruel is generally taken to mean "indifference to or pleasure in another's distress." As this definition indicates, a cruel punishment is not necessarily the same thing as a punishment that fails to further a penological purpose; nor is it necessarily the same thing as a punishment that is not acceptable under current standards of decency. Rather, the word "cruel" implies a certain relationship between the punisher and the person punished: an attitude that the suffering of the offender is either unimportant, or is something to be positively enjoyed. In other words, a cruel punishment is one that treats the offender as though he or she were not a human person with a claim to our concern as fellow persons, but as a mere animal or thing lacking in basic human dignity. Chemical castration is impermissibly cruel in two ways. First, the very purpose of chemical castration is to exert control over the mind of the offender by rendering it incapable of experiencing sexual desire. The procedure is sometimes justified on the ground that some sex offenders are pedophiles who experience deviant (and often unwanted) sexual desire for children, and that for this group of offenders, chemical castration is a beneficial form of medical treatment. This argument fails, however, because the vast majority of sex offenders covered by the chemical castration laws do not have any sexual disorder, much less pedophilia. Many of these offenders may be incorrigibly bad, dangerous or antisocial people, but they do not suffer from a sexual sickness. Thus, subjecting them to chemical castration is not even arguably medically appropriate. Rather, it merely replaces the stone walls and iron bars of a traditional prison (where many sex offenders doubtless belong) with a less expensive but more degrading prison for the mind. Second, chemical castration constitutes a profound physical assault on sex offenders. By pumping massive doses of female hormones into a male body, this procedure subjects offenders to severe physical effects, some of which appear quite likely to have painful, disabling and possibly fatal long-term effects. To take the most troubling example, long term MPA treatment depletes bone mineral density, so that offenders appear likely to experience osteoporosis and multiple bone fractures as a result of their treatment. Thus, over the long term, chemical castration will cease to be merely disabling, and may become something more like torture. The choice of this extraordinarily harmful mode of punishment implies that the health and well-being of sex offenders are simply not important. Because chemical castration is designed both to shackle the mind and painfully cripple the body of sex offenders, this essay will argue, it is doubly cruel, and should be struck down as a violation of the Eighth Amendment.