By: Sarah Gokelman

 

In March of this year, a man in Louisiana was convicted of sexual offenses against a juvenile.^[1] His prison sentence of 35 years was accompanied by conditions you might expect for such an offense–sex offender registration, no contact with the victims involved, etc.^[2] But one of these conditions may surprise you. Upon his release from prison, Ryan Clark will be required to submit to regular injections of medroxyprogesterone acetate (MPA) in compliance with his court-ordered chemical castration.^[3]

There are currently ten states with some form of castration law in effect.^[4] California was the first to enact this type of legislation in 1996,^[5] imposing chemical treatment as a condition of parole at the court’s discretion for the first offense and as a mandatory condition for any conviction of the same offense thereafter.^[6] Since then, nine other states have followed, each with their own varying degrees of imposition.^[7]

Castration laws in the United States generally fit into three categories.^[8] On one end of the spectrum, four states–Georgia, Montana, Oregon, and Wisconsin–allow for only the chemical form of castration in their criminal codes.^[9] On the other, Texas stands alone, providing for voluntary surgical castration only.^[10] The majority approach lands firmly in the middle of the castration-law spectrum with California, Florida, Iowa, Louisiana, and Alabama enacting provisions in their respective codes for both chemical castration and voluntary surgical castration.^[11]

Despite the fact that almost twenty percent of states have some form of castration on the books, the Supreme Court has yet to speak on the constitutionality of court-imposed chemical castration.^[12] This is likely because actual imposition of castration in any form–physical or chemical–on a criminal defendant within the United States criminal justice system is rare.^[13] Chemical castration laws tend to focus on a narrow category of crimes–generally that of sexual offenses against minors.^[14] As a result, there are states, like Alabama, whose castration laws went untouched for a lengthy period of time because the conditions to impose them were never right.^[15]

However, simply because the actual imposition of chemical castration as a punishment or a condition of parole is rare does not mean that its imposition poses any less of a threat to the constitutional rights of convicted individuals.

Castration as punishment dates back to at least 4,000 BCE.^[16] Its relatively recent presence in the United States criminal justice system began around 1899, alongside the rise of the eugenics movement, and was largely focused on curative effects with the intent to “subdue the sexual urge of prisoners.”^[17] American courts have long condemned court-ordered castration as a prime example of cruel and unusual punishment, barred by the United States Constitution’s Eighth Amendment.^[18] Yet, it is allowed to persist in its chemical form to this day, largely due to its framing by legislatures as treatment rather than punishment.^[19]

This “treatment” is implemented via a weekly injection of MPA, a drug commonly known by its brand name, Depo-Provera.^[20] Intended for use as women’s birth control, Depo-Provera in the context of sexual offender probation serves to lower testosterone levels, decrease male sex drive, and suppress sexual urges.^[21] To do so effectively, Depo-Provera is prescribed to male offenders at a dosage 8 to 43 times greater than those given to women.^[22]

This leads us to the first of many reasons why chemical castration should be barred as cruel and unusual punishment. Regarding the Eighth Amendment, the Supreme Court has held, “the government has a duty . . . not to impose conditions of punishment that inherently impose a severe risk of harm to the offender’s health and physical well-being.”^[23] The injection of MPA comes with a wide range of reported side effects including weight gain, testicular atrophy, muscular cramps, and depression, to name a few.^[24] Perhaps the most significant of these is a risk of irreversible loss of bone mineral density–so severe that Pfizer, MPA’s manufacturer, warns women not to use the drug for more than two years.^[25] Additionally, it is difficult to know how long-lasting (or even permanent) the side effects from this process are for men, especially at the higher dosage used to suppress sexual functions, as Depo-Provera’s medical studies have focused solely on its use as a female contraceptive.^[26]

This severe risk of harm to male offenders posed by the use of Depo-Provera is increased by the high possibility that once a court orders chemical castration, it is highly unlikely that the offender will ever find reprieve.^[27] The process required by most chemical castration laws permits MPA treatment to stop only if the offender can show that the treatment is no longer necessary.^[28] Although chemical castration is valued for its apparent reversibility, it is this very trait that may permanently subject offenders to the process, for “when treatment stops, sexual desire returns, and offenders are just as dangerous as they were before they were treated.”^[29]

Additionally, medical professionals have raised ethical concerns over the imposition of the MPA treatment defined solely by the crime committed, and not whether it would be effective for a particular offender.^[30] To implement effective treatment through the injection of MPA, psychiatrists look at “the frequency and intensity of offenders’ sexual fantasies and urges” along with their desire for treatment.^[31] But criminal statutes imposing MPA treatment, such as California’s, do not require any medical diagnosis of the sex offender.^[32] In fact, through their judicial discretion, judges may go so far as to overrule medical professional opinions and decide an offender’s legal fate regardless of whether that decision will be effective.^[33]

There exists a wealth of reasons why chemical castration should not be available for courts to impose.^[34] In addition to Eighth Amendment considerations, critics of chemical castration have voiced concerns relating to violations of due process, equal protection, the first amendment, the right to privacy, and reproductive freedom, and argued about the true purpose of probation.^[35]

Ryan Clark will not receive MPA injections until one week before his release from prison.^[36] He has a 35-year prison sentence to serve first.^[37] Meanwhile, the controversy of chemical castration will endure, and people will continue to raise questions about its constitutionality and effectiveness. Perhaps, by the time Mr. Clark is released, we might have some answers.

 

 

^[1] Chloe Mayer, Louisiana Man to be Chemically Castrated After Raping Minor, Newsweek (Mar. 17, 2023), https://www.newsweek.com/ryan-clark-chemical-castration-rape-minor-louisiana-1788511.

^[2] See id.

^[3] Id.

^[4] Id.

^[5] John F. Stinneford, Incapacitation Through Maiming: Chemical Castration, The Eighth Amendment, and the Denial of Human Dignity, 3 U. Saint Thomas L. Rev. 559, 577 (2006).

^[6] Cal. Penal Code § 645 (West 2019).

^[7] See Stinneford, supra note 5, at 578-583.

^[8] See Mohan Nair, Pharmacotherapy for Sexual Offenders, in Sexual Offending 755, 762 (Amy Phenix & Harry M. Hoberman eds., 2016).

^[9] Id.

^[10] Id.

^[11] Id. at 763; Alan Blinder, What to Know About the Alabama Chemical Castration Law, N.Y. Times (June 11, 2019), https://www.nytimes.com/2019/06/11/us/politics/chemical-castration.html (identifying Alabama’s newly enacted castration law as similar to California’s).

^[12] Nair, supra note 8 at 763.

^[13] See Associated Press in Oklahoma City, Oklahoma Lawmaker Pushes Bill for ‘Chemical Castration’ of Sex Offenders, Guardian (Feb. 3, 2018), https://www.theguardian.com/us-news/2018/feb/03/oklahoma-lawmaker-pushes-bill-for-chemical-castration-of-sex-offenders.

^[14] See Stinneford, supra note 5, at 578-583.

^[15] Caroline Beck, Chemical Castration Law Hasn’t Been Used Since 2019 Enactment, Ala. Daily News (June 16, 2021), https://aldailynews.com/chemical-castration-law-hasnt-been-used-since-2019-enactment/.

^[16] Antonio Nacchia et al., From Terror to Treatment: A History of Human Castration, 2 Int’l J. Urologic Hist. 67, 67 (2023).

^[17] Louis Le Maire, Danish Experiences Regarding the Castration of Sexual Offenders, 47 J. Crim. L., Criminology, and Police Sci. 294, 294 (1956).

^[18] See Stinneford, supra note 5, at 588; U.S. Const. amend. VIII.

^[19] See Robert D. Miller, Forced Administration of Sex-Drive Reducing Medications to Sex Offenders: Treatment or Punishment?, 4 Psych., Pub. Pol’y, and L. 175, 176 (1998); see, e.g., supra note 6.

^[20] Matthew V. Daley, Note, A Flawed Solution to the Sex Offender Situation in the United States: The Legality of Chemical Castration for Sex Offenders, 5 Ind. Health L. Rev. 87, 91 (2008).

^[21] Id. at 92.

^[22] Stinneford, supra note 5, at 598.

^[23] Id. at 597.

^[24] See id.

^[25] Id. at 597-98.

^[26] Daley, supra note 20, at 92.

^[27] See Stinneford, supra note 5, at 596-97.

^[28] Id. at 597.

^[29] Id.

^[30] Miller, supra note 19, at 176-77.

^[31] Id. at 182.

^[32] Daley, supra note 20, at 107.

^[33] See id. at 108.

^[34] See Miller, supra note 19, at 184.

^[35] Id.

^[36] Mayer, supra note 1.

^[37] Id.