California's unconstitutional punishment for heinous crimes: Chemical castration of sexual offenders

Fordham Law Review

Volumn 65, Issue 6, 1997, Pages 2611-2645

  Lombardo, Raymond A ^a  

^a NONE

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EID: 0031496555     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (254)

1. See Cal. Penal Code § 645 (West Supp. 1997); Dave Lesher, Molester Castration Measure Signed, L.A. Times, Sept. 18, 1996, at A3. The prior version of section 645 gave courts discretion to direct that an operation be performed upon the defendant for the prevention of procreation where the victim was a female under the age of 10. Cal. Penal Code § 645 (1988). The prior statute applied to men and women guilty of specified sexual offenses, and generated very little case law. In People v. Blankenship, 61 P.2d 352 (Cal. Ct. App. 1936), the court affirmed the sterilization of a defendant for raping a 13-year-old and possibly infecting her with syphilis. The court justified the defendant's sterilization not only on the grounds that he raped the girl, but also because of the threat that he could infect other members of society with syphilis. Id. at 353. The legislation signed by Governor Wilson repeals the above provision and instead provides that any person convicted once of a specified sex offense where the victim is under 13 may be punished with Depo-Provera upon parole, in addition to any other punishments prescribed by law. Cal. Penal Code § 645 (West Supp. 1997). Upon a second conviction, the law specifies mandatory imposition of Depo-Provera injections, unless the offender consents to surgical castration. Id.
2. The trade name of Depo-Provera is medroxyprogesterone acetate treatment. See Edward A. Fitzgerald, Chemical Castration: MPA Treatment of the Sexual Offender, 18 Am. J. Crim. L. 1, 2 (1991).
3. Id. at 3.
4. The revised version of section 645 applies to men and women who violate the following provisions of the California Penal Code: (1) section 286(c) or (d) (sodomy with a person under 14, either alone or in concert, and more than 10 years younger than the defendant, or when force is used); (2) section 288(b)(1) (lewd or lascivious acts with a child under 14, by violence, threat of violence, etc.); (3) section 288a(b) or (d) (acts of oral copulation with a person under 18, either by force or when the victim is unable to consent); (4) section 289(a) or (j) (penetration of genital or anal openings by foreign or unknown objects of a person under 14 and more than 10 years younger than the defendant). Cal Penal Code § 645 (West Supp. 1997).
5. Id.
6. Cal. Penal Code § 645 (West 1988).
7. Cal. Penal Code § 645 (West Supp. 1997).
8. The Eighth Amendment reads, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII.
9. One of the commentators with the most thoughtful insights on the tension between judicial review and democratic government is the late Professor Bickel. See Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962).
10. Progesterones are a class of female hormones. For a general description of Depo-Provera, see Physician's Desk Reference 2079-81 (51st ed. 1997) [hereinafter PDR]; Fitzgerald, supra note 2, at 2 n.7.
11. Fred S. Berlin, Sex Offenders: A Biomedical Perspective and a Status Report on Biomedical Treatment, in The Sexual Aggressor 83, 106-11 (Joanne G. Greer & Irving R. Stuart eds., 1983) (describing the biological effects of Depo-Provera); Fitzgerald, supra note 2, at 6; Paul A. Walker et al., Antiandrogenic Treatment of the Paraphilias, in Guidelines for the Use of Psychotropic Drugs 427, 432-33 (Harvey C. Stancer et al. eds., 1984).
12. Fred S. Berlin, Sex Offenders: A Biomedical Perspective and a Status Report on Biomedical Treatment, in The Sexual Aggressor 83, 106-11 (Joanne G. Greer & Irving R. Stuart eds., 1983) (describing the biological effects of Depo-Provera); Fitzgerald, supra note 2, at 6; Paul A. Walker et al., Antiandrogenic Treatment of the Paraphilias, in Guidelines for the Use of Psychotropic Drugs 427, 432-33 (Harvey C. Stancer et al. eds., 1984).
13. See Berlin, supra note 11, at 107 (noting the decrease in sperm count after Depo-Provera was administered); Fitzgerald, supra note 2, at 6; Pamela K. Hicks, Castration of Sexual Offenders: Legal and Ethical Issues, 14 J. Legal Med. 641, 646 (1993); Don Riesenberg, Motivations Studied and Treatment Devised in Attempt to Change Rapists' Behavior, 257 JAMA 899, 900 (1987); Walker, supra note 11, at 432-33.
14. See Berlin, supra note 11, at 107 (noting the decrease in sperm count after Depo-Provera was administered); Fitzgerald, supra note 2, at 6; Pamela K. Hicks, Castration of Sexual Offenders: Legal and Ethical Issues, 14 J. Legal Med. 641, 646 (1993); Don Riesenberg, Motivations Studied and Treatment Devised in Attempt to Change Rapists' Behavior, 257 JAMA 899, 900 (1987); Walker, supra note 11, at 432-33.
15. Berlin, supra note 11, at 106; Fitzgerald, supra note 2, at 6; Riesenberg, supra note 12, at 900; Walker, supra note 11, at 432-33.
16. Walker, supra note 11, at 433 (Depo-Provera lowers testosterone to prepubertal levels); Berlin, supra note 11, at 106-07 (explaining proper dosage levels).
17. Berlin, supra note 11, at 107; Fitzgerald, supra note 2, at 7; PDR, supra note 10, at 2081-82.
18. Walker, supra note 11, at 436-37; Fitzgerald, supra note 2, at 8-9. Professor Fitzgerald reached his conclusions after examining studies of the effects of Depo-Provera on sex offenders. In contrast to those who will receive the injections under the California Statute, however, the patients Fitzgerald described consented to Depo-Provera treatment.
19. The American Psychiatric Association has defined paraphilias as "recurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving 1) nonhuman objects, 2) the suffering or humiliation of oneself or one's partner, or 3) children or other nonconsenting persons, that occur over a period of at least 6 months." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 522-23 (4th ed. rev. 1994).
20. William Green, Depo-Provera, Castration, and the Probation of Rape Offenders: Statutory and Constitutional Issues, 12 U. Dayton L. Rev. 1, 5 (1986); John Money, Use of an Androgen-Depleting Hormone in the Treatment of Male Sex Offenders, 6 J. Sex. Res. 165 (1970).
21. William Green, Depo-Provera, Castration, and the Probation of Rape Offenders: Statutory and Constitutional Issues, 12 U. Dayton L. Rev. 1, 5 (1986); John Money, Use of an Androgen-Depleting Hormone in the Treatment of Male Sex Offenders, 6 J. Sex. Res. 165 (1970).
22. Money, supra note 18, at 172.
23. Fred S. Berlin & Carl F. Meinecke, Treatment of Sex Offenders with Antiandrogenic Medication: Conceptualization, Review of Treatment Modalities, and Preliminary Findings, 138 Am. J. Psychiatry 601, 601-02 (1981) (explaining the nature and diagnosis of paraphilias); Berlin, supra note 11, at 86-88 (same).
24. See supra note 20.
25. Fitzgerald, supra note 2, at 5.
26. Id.; see also Berlin, supra note 11, at 83-88 (outlining the symptoms of various sexual disorders and the importance of correct diagnosis).
27. Fitzgerald, supra note 2, at 5; Walker, supra note 11, at 429.
28. Jonathan R. Kelly & James L. Cavanaugh, Jr., Treatment of the Sexually Dangerous Patient, 21 Current Psychiatric Therapies 101, 103-04 (1982); Walker, supra note 11, at 433.
29. Fitzgerald, supra note 2, at 9; Green, supra note 18, at 5-6.
30. Walker, supra note 11, at 433; Fitzgerald, supra note 2, at 9.
31. The California Psychiatric Association opposes the California Statute because it believes offenders will not be helped by Depo-Provera when it is administered absent counseling and a willingness to take the drug. See Sex Offenders: Chemical Castration, AB 3339, Cal. Senate Rules Comm. 8 (1996) [hereinafter Senate Rules Committee Hearings]; Green, supra note 18, at 6-8; Hicks, supra note 12, at 665-66; Kari A. Vanderzyl, Comment: Castration as an Alternative to Incarceration: An Impotent Approach to the Punishment of Sex Offenders, 15 N. Ill. U. L. Rev. 107, 128 (1994); see also Castration or Incarceration? 151 New Scientist 3 (1996) [hereinafter Castration or Incarceration?] (citing criticism of the proposition that a drug can, by itself, end sexual dysfunction); Philip Cohen, California Castration Law 'Ill-Judged', 151 New Scientist 4 (1996).
32. The California Psychiatric Association opposes the California Statute because it believes offenders will not be helped by Depo-Provera when it is administered absent counseling and a willingness to take the drug. See Sex Offenders: Chemical Castration, AB 3339, Cal. Senate Rules Comm. 8 (1996) [hereinafter Senate Rules Committee Hearings]; Green, supra note 18, at 6-8; Hicks, supra note 12, at 665-66; Kari A. Vanderzyl, Comment: Castration as an Alternative to Incarceration: An Impotent Approach to the Punishment of Sex Offenders, 15 N. Ill. U. L. Rev. 107, 128 (1994); see also Castration or Incarceration? 151 New Scientist 3 (1996) [hereinafter Castration or Incarceration?] (citing criticism of the proposition that a drug can, by itself, end sexual dysfunction); Philip Cohen, California Castration Law 'Ill-Judged', 151 New Scientist 4 (1996).
33. The California Psychiatric Association opposes the California Statute because it believes offenders will not be helped by Depo-Provera when it is administered absent counseling and a willingness to take the drug. See Sex Offenders: Chemical Castration, AB 3339, Cal. Senate Rules Comm. 8 (1996) [hereinafter Senate Rules Committee Hearings]; Green, supra note 18, at 6-8; Hicks, supra note 12, at 665-66; Kari A. Vanderzyl, Comment: Castration as an Alternative to Incarceration: An Impotent Approach to the Punishment of Sex Offenders, 15 N. Ill. U. L. Rev. 107, 128 (1994); see also Castration or Incarceration? 151 New Scientist 3 (1996) [hereinafter Castration or Incarceration?] (citing criticism of the proposition that a drug can, by itself, end sexual dysfunction); Philip Cohen, California Castration Law 'Ill-Judged', 151 New Scientist 4 (1996).
34. The California Psychiatric Association opposes the California Statute because it believes offenders will not be helped by Depo-Provera when it is administered absent counseling and a willingness to take the drug. See Sex Offenders: Chemical Castration, AB 3339, Cal. Senate Rules Comm. 8 (1996) [hereinafter Senate Rules Committee Hearings]; Green, supra note 18, at 6-8; Hicks, supra note 12, at 665-66; Kari A. Vanderzyl, Comment: Castration as an Alternative to Incarceration: An Impotent Approach to the Punishment of Sex Offenders, 15 N. Ill. U. L. Rev. 107, 128 (1994); see also Castration or Incarceration? 151 New Scientist 3 (1996) [hereinafter Castration or Incarceration?] (citing criticism of the proposition that a drug can, by itself, end sexual dysfunction); Philip Cohen, California Castration Law 'Ill-Judged', 151 New Scientist 4 (1996).
35. Hicks, supra note 12, at 647.
36. Green, supra note 18, at 7. Surgical castration research has been criticized because it has neither been verified by controlled group studies, nor studied on rapists, who comprise a major portion of sexually violent felons. Asher R. Pacht, The Rapist in Treatment: Professional Myths and Psychological Realities, in Sexual Assault 90, 92-93 (Marcia J. Walker & Stanley L. Brodsky, eds. 1976); Castration or Incarceration?, supra note 28, at 3.
37. Green, supra note 18, at 7. Surgical castration research has been criticized because it has neither been verified by controlled group studies, nor studied on rapists, who comprise a major portion of sexually violent felons. Asher R. Pacht, The Rapist in Treatment: Professional Myths and Psychological Realities, in Sexual Assault 90, 92-93 (Marcia J. Walker & Stanley L. Brodsky, eds. 1976); Castration or Incarceration?, supra note 28, at 3.
38. See supra note 30 (describing shortcomings of surgical and chemical castration research designs).
39. See Senate Rules Committee Hearings, supra note 28, at 8; Hicks, supra note 12, at 665; Shari Roan, No Consensus on Chemical Castration, L.A. Times, Sept. 26, 1996, at E1, E5; Rhonda L. Rundle, Will 'Chemical Castration' Really Work?, Wall St. J., Sept., 19, 1996, at B1; Abigail Trafford, Castration Complexities, Wash. Post, Oct. 15, 1996, (Health Magazine) at 6.
40. See Senate Rules Committee Hearings, supra note 28, at 8; Hicks, supra note 12, at 665; Shari Roan, No Consensus on Chemical Castration, L.A. Times, Sept. 26, 1996, at E1, E5; Rhonda L. Rundle, Will 'Chemical Castration' Really Work?, Wall St. J., Sept., 19, 1996, at B1; Abigail Trafford, Castration Complexities, Wash. Post, Oct. 15, 1996, (Health Magazine) at 6.
41. See Senate Rules Committee Hearings, supra note 28, at 8; Hicks, supra note 12, at 665; Shari Roan, No Consensus on Chemical Castration, L.A. Times, Sept. 26, 1996, at E1, E5; Rhonda L. Rundle, Will 'Chemical Castration' Really Work?, Wall St. J., Sept., 19, 1996, at B1; Abigail Trafford, Castration Complexities, Wash. Post, Oct. 15, 1996, (Health Magazine) at 6.
42. Hicks, supra note 12, at 665-66 (discussing criticism of the idea that sexual dysfunction can be fully explained by hormone irregularity and not other psychological factors); Roan, supra note 32, at E5; Rundle, supra note 32, at B1; Trafford, supra note 32, at 6.
43. Cohen, supra note 28, at 4; Hicks, supra note 12, at 665 (explaining that some medical commentators believe that sex crimes are motivated by factors such as anger and hatred); Roan, supra note 32, at E5.
44. Walker, supra note 11, at 429; Fitzgerald, supra note 2, at 4; Kimberly A. Peters, Chemical Castration: An Alternative to Incarceration, 31 Duq. L. Rev. 307, 312 (1993).
45. Walker, supra note 11, at 429; Fitzgerald, supra note 2, at 4; Peters, supra note 35, at 312.
46. Walker, supra note 11, at 429; Fitzgerald, supra note 2, at 4.
47. Walker, supra note 11, at 429; Peters, supra note 35, at 312.
48. Walker, supra note 11, at 429.
49. Cohen, supra note 28, at 4; Hicks, supra note 12, at 665; Castration or Incarceration?, supra note 28, at 3; Roan, supra note 32, at E5.
50. See supra notes 20-27 and accompanying text.
51. Green, supra note 18, at 20 (applying Eighth Amendment analysis to probationary conditions such as chemical castration); Peters, supra note 35, at 318-21 (explaining that the states' punishment power with respect to chemical castration is subject to the Cruel and Unusual Punishment Clause); Dennis H. Rainear, The Use of Depo-Provera for Treating Male Sex Offenders: A Review of the Constitutional and Medical Issues, 16 U. Tol. L. Rev. 181, 207-15 (1984) (performing Eighth Amendment analysis on chemical castration regimen);
52. Elizabeth Symonds, Mental Patients' Rights to Refuse Drugs: Involuntary Medication as Cruel and Unusual Punishment, 7 Hastings Const. L. Q. 701, 703-04 (1980) (performing Eighth Amendment analysis on the use of psychotropic drugs).
53. 462 F. Supp. 1131 (D.N.J. 1978); Green, supra note 18, at 20-21. The Rennie Court, in distilling its own test, summarized the factors that other courts have examined to determine whether the law in question is punishment or treatment. The court found that most courts look to various factors such as whether the practice is part of a continuing and medically supervised treatment program. The court looked to the following cases to make this determination: Knecht v. Gillman, 488 F.2d 1136, 1138 (8th Cir. 1973) (looking to whether the drug is effective and accepted medical practice); Mackey v. Procunier, 477 F.2d 877, 878 (9th Cir. 1973) (finding that proof of forced administration of drug to accompany shock therapy could "raise serious constitutional questions respecting cruel and unusual punishment"); Pena v. New York State Division for Youth, 419 F. Supp. 203, 211 (S.D.N.Y. 1976) (inquiring whether administration of drug was part of ongoing psychotherapeutic program); and Nelson v. Heyne, 355 F. Supp. 451, 455 (N.D. Ind. 1972) (stating that administration of tranquilizing drugs should not be considered therapy because it was not part of a continuing treatment program). Rennie, 462 F. Supp. at 1143.
54. Rennie, 462 F. Supp. at 1143.
55. Id.
56. See supra notes 20-27 and accompanying text.
57. See supra notes 30-31 and accompanying text.
58. See Hicks, supra note 12, at 665 (citing medical criticism of the idea that sexual dysfunction is motivated purely by hormonal and not psychological problems).
59. Hicks, supra note 12, at 665; see supra note 32-33 and accompanying text.
60. Green, supra note 18, at 14-15 (noting that long-term use of Depo-Provera is suspected to cause cancer); John T. Melella et al., Legal and Ethical Issues in the Use of Antiandrogens in Treating Sex Offenders, 17 Bull. Am. Acad. Psychiatry L. 223, 225 (1989).
61. Green, supra note 18, at 14-15; Roan, supra note 32, at E5; Rundle, supra note 32, at B7; Richard Stone, Controversial Contraceptive Wins Approval from FDA Panel, 256 Sci. 1754 (1992).
62. Green, supra note 18, at 14-15; Melella, supra note 50, at 225.
63. Cal. Penal Code § 645 (West Supp. 1997). Assemblyman Hoge, the drafter of the Depo-Provera measure, used the research of Dr. Berlin, the author of several papers on Depo-Provera, to justify his call for chemical castration of repeat sexual offenders. Dr. Berlin, however, is against the use of Depo-Provera when its administration is not voluntary and accompanied by counseling. Sex Offenses: Chemical Castration, AB 3339, Cal. Senate Comm. on Crim. Procedure 5-6 (1996).
64. See Cal. Penal Code § 645 (West Supp. 1997).
65. See supra notes 16-19 and accompanying text.
66. See supra notes 20-25 (outlining typical Depo-Provera research protocols).
67. See supra notes 16-19.
68. See Rennie v. Klein, 462 F. Supp. 1131, 1143 (D.N.J. 1978).
69. See supra part I.C (arguing that the involuntary use of Depo-Provera absent counseling is unlikely to be effective).
70. Melella, supra note 50, at 225; Stone, supra note 51, at 1754.
71. Green, supra note 18, at 14-15 (arguing that the long term use of the drug would be suspect as a valid condition of probation because it could lead to cancer); Stone, supra note 51, at 1754.
72. See Senate Rules Committee Hearings, supra note 28, at 7.
73. See Cal. Penal Code § 645 (referencing the sexual offenses to which § 645 is applicable); 1996 CA AB 3339 (stating that the chemical castration provision repeals the surgical castration requirement and is to be used in its place).
74. This Note does not consider the constitutionality of using Depo-Provera under proper medical supervision as part of an ongoing consensual treatment program; rather it focuses solely on the drug's application under the system created by the California Statute, which does not contemplate ongoing consensual therapeutic treatment.
75. The Supreme Court has held the Eighth Amendment to be applicable to the states via incorporation through the Fourteenth Amendment. See Robinson v. California, 370 U.S. 660, 666-67 (1962).
76. See Margaret J. Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishment Clause, 126 U. Pa. L. Rev. 989 (1978) (applying categories in the capital punishment context). Professor Denno updated these categories to reflect current developments in Eighth Amendment case law. See Deborah W. Denno, Getting to Death: Are Executions Constitutional?, 82 Iowa L. Rev. (forthcoming January 1997).
77. See Margaret J. Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishment Clause, 126 U. Pa. L. Rev. 989 (1978) (applying categories in the capital punishment context). Professor Denno updated these categories to reflect current developments in Eighth Amendment case law. See Deborah W. Denno, Getting to Death: Are Executions Constitutional?, 82 Iowa L. Rev. (forthcoming January 1997).
78. See, e.g., Weems v. United States, 217 U.S. 349, 382 (1910) (proscribing cadena temporal, the Philippine punishment of binding the hands and ankles in chains, followed by the loss of basic civil rights).
79. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 976-86 (1991) (discussing whether the Eighth Amendment contains a proportionality requirement).
80. See, e.g., Robinson v. California, 370 U.S. 660, 667 (1962) (holding it unconstitutional to penalize a person because he is a drug addict).
81. See, e.g., Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (beatings by prison guards permissible to limited extent).
82. See, e.g., Furman v. Georgia, 408 U.S. 238, 241 (1972) (Douglas, J., concurring) (stating that "the requirements of due process ban cruel and unusual punishment").
83. The issue is whether the state can impose chemical castration as a legal condition of parole, irrespective of whether such a condition is proportional to the crime committed. Chemical castration may well be invalid as a disproportionate punishment. Such a discussion, however, is beyond the scope of this Note.
84. Radin, supra note 66, at 993.
85. See id. at 1002 (suggesting that in cruel and unusual punishment cases, "confusion about the appropriate adjudicatory attitude has prevailed"); John C. Shawde, Jurisprudential Confusion in Eighth Amendment Analysis, 38 U. Miami L. Rev. 357, 372 (1984) (noting the failure of Supreme Court Justices to agree on a justification for the death penalty cases); Richard L. Slowinski, South Carolina v. Gathers: Prohibiting the Use of Victim-Related Information in Capital Punishment Proceedings, 40 Cath. U. L. Rev. 215, 249 (1990) (citing persistent disagreement in Eighth Amendment interpretation).
86. See id. at 1002 (suggesting that in cruel and unusual punishment cases, "confusion about the appropriate adjudicatory attitude has prevailed"); John C. Shawde, Jurisprudential Confusion in Eighth Amendment Analysis, 38 U. Miami L. Rev. 357, 372 (1984) (noting the failure of Supreme Court Justices to agree on a justification for the death penalty cases); Richard L. Slowinski, South Carolina v. Gathers: Prohibiting the Use of Victim-Related Information in Capital Punishment Proceedings, 40 Cath. U. L. Rev. 215, 249 (1990) (citing persistent disagreement in Eighth Amendment interpretation).
87. See, e.g., Gregg v. Georgia, 428 U.S. 153 (1976) (opinion of Stewart, Powell and Stevens, JJ.) (articulating procedural rationale for the death penalty); Jurek v. Texas, 428 U.S. 262 (1976) (plurality opinion); Woodson v. North Carolina, 428 U.S. 280 (1976) (requiring concurrence of Justices Brennan and Marshall to obtain five vote majority); Roberts v. Louisiana, 428 U.S. 325 (1976) (same).
88. 408 U.S. 238 (1972).
89. Furman, 408 U.S. at 240-42 (Douglas, J., concurring) (asserting that the death penalty is cruel and unusual because it is meted out in a discriminatory fashion); id. at 257 (Brennan, J., concurring) (arguing that that the death penalty is substantively cruel in principle); id. at 306, 310 (Stewart, J., concurring) (stating that the death penalty is cruel because it is "wantonly and so freakishly imposed"); id. at 311, 312 (White, J., concurring) (arguing that capital punishment is cruel because it no longer serves any "discernible social or public purposes"); id. at 314 (Marshall, J., concurring) (asserting that capital punishment is cruel because it is morally unacceptable to the people, it fails as a deterrent, and lesser forms of retribution are adequate); id. at 375 (Burger, C.J., dissenting) (arguing that capital punishment is constitutional because it was acceptable to the Framers of the Amendment and is consistent with evolutionary standards of decency as evidenced by legislative sanction); id. at 405, 413 (Blackmun, J., dissenting) (stating that the death penalty, while repugnant personally, is not in itself unconstitutional); id. at 414 (Powell, J., dissenting) (arguing that the Constitution itself and society's standards of decency, as evidenced by legislative enactments, opinion polls, etc., demonstrate the death penalty to be constitutional); id. at 465 (Rehnquist, J., dissenting) (stating that death penalty is constitutional because it has been thought necessary by the nation's legislatures since the time of the nation's founding); see also Radin, supra note 66, at 998 (calling Furman a "jurisprudential debacle").
90. Weems v. United States, 217 U.S. 349, 377 (1910) (identifying quintessential examples of cruelty); Radin, supra note 66, at 1001-02 (describing disagreement over means of Eighth Amendment interpretation); Shawde, supra note 74, at 370-72 (same); Slowinski, supra note 74, at 249 (noting disagreements over Eighth Amendment interpretation in the area of victim information in capital punishment proceedings).
91. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, in Legal Essays 9-12 (1908) (arguing for deference to the democratic process).
92. The problem of judicial annulment of legislative enactments has been called the "countermajoritarian difficulty" by one commentator. See Bickel, supra note 9, at 16. Professor Bickel justified judicial review on the basis that the courts were protecting the people's fundamental law, the law that governs their political life, i.e., the Constitution, from the ill considered encroachments of the ordinary legislative enactment. When courts invalidated such enactments, they were acting to protect the people's fundamental law, and as a result not acting contrary to democratic rule. Id.; see also Federalist No. 78, at 467 (Alexander Hamilton) (Clinton Rossiter ed., 1961) [hereinafter Federalist No. 78] (elaborating on the role of courts in defending the Constitution from legislation that contravenes it).
93. See Bickel, supra note 9, at 16 (stating that a Justice's opinion may be independent of popular will).
94. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 977 (1991) (Scalia, J.) (using historical analysis to argue that the language of the Eighth Amendment does not embody a proportionality requirement).
95. See infra note 86 and accompanying text (giving a sample of those commentators who have argued for evolutionary reading of the Constitution).
96. Radin, supra note 66, at 1030.
97. See generally Robert Bork, The Tempting of America: The Political Seduction of the Law (1990) (critiquing those scholars who read the Constitution in an evolutionary fashion as revisionists who manipulate the text to suit political ends); Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 37-47 (1997) [hereinafter Scalia, Interpretation] (arguing for the originalist position because it is the only position compatible with popular rule and constitutional democracy); Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989) [hereinafter Scalia, Originalism] (admitting that while the originalist position is flawed, its flaws are less striking than any of the other methods of constitutional exegesis).
98. See generally Robert Bork, The Tempting of America: The Political Seduction of the Law (1990) (critiquing those scholars who read the Constitution in an evolutionary fashion as revisionists who manipulate the text to suit political ends); Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 37-47 (1997) [hereinafter Scalia, Interpretation] (arguing for the originalist position because it is the only position compatible with popular rule and constitutional democracy); Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989) [hereinafter Scalia, Originalism] (admitting that while the originalist position is flawed, its flaws are less striking than any of the other methods of constitutional exegesis).
99. See generally Robert Bork, The Tempting of America: The Political Seduction of the Law (1990) (critiquing those scholars who read the Constitution in an evolutionary fashion as revisionists who manipulate the text to suit political ends); Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 37-47 (1997) [hereinafter Scalia, Interpretation] (arguing for the originalist position because it is the only position compatible with popular rule and constitutional democracy); Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989) [hereinafter Scalia, Originalism] (admitting that while the originalist position is flawed, its flaws are less striking than any of the other methods of constitutional exegesis).
100. The following is a sample, by no means exhaustive, of those commentators who have argued for reading evolutionary intent into the Constitution: Bickel, supra note 9; Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (1993); John H. Ely, Democracy and Distrust: A Theory of Judicial Review (1980); Cass R. Sunstein, The Partial Constitution (1993); Charles L. Black, Jr., On Reading and Using the Ninth Amendment, in Power and Policy in Quest of Law: Essays in Honor of Eugene Victor Rostow 187 (Myres S. McDougal & W. Michael Reisman eds., 1985); James E. Fleming, Constructing the Substantive Constitution, 72 Tex. L. Rev. 211 (1993); Lawrence Lessig, Fidelity in Translation, 71 Tex. L. Rev. 1165 (1993); and Laurence H. Tribe, The Puzzling Persistence of ProcessBased Constitutional Theories, 89 Yale L.J. 1063 (1980).
101. The following is a sample, by no means exhaustive, of those commentators who have argued for reading evolutionary intent into the Constitution: Bickel, supra note 9; Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (1993); John H. Ely, Democracy and Distrust: A Theory of Judicial Review (1980); Cass R. Sunstein, The Partial Constitution (1993); Charles L. Black, Jr., On Reading and Using the Ninth Amendment, in Power and Policy in Quest of Law: Essays in Honor of Eugene Victor Rostow 187 (Myres S. McDougal & W. Michael Reisman eds., 1985); James E. Fleming, Constructing the Substantive Constitution, 72 Tex. L. Rev. 211 (1993); Lawrence Lessig, Fidelity in Translation, 71 Tex. L. Rev. 1165 (1993); and Laurence H. Tribe, The Puzzling Persistence of ProcessBased Constitutional Theories, 89 Yale L.J. 1063 (1980).
102. The following is a sample, by no means exhaustive, of those commentators who have argued for reading evolutionary intent into the Constitution: Bickel, supra note 9; Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (1993); John H. Ely, Democracy and Distrust: A Theory of Judicial Review (1980); Cass R. Sunstein, The Partial Constitution (1993); Charles L. Black, Jr., On Reading and Using the Ninth Amendment, in Power and Policy in Quest of Law: Essays in Honor of Eugene Victor Rostow 187 (Myres S. McDougal & W. Michael Reisman eds., 1985); James E. Fleming, Constructing the Substantive Constitution, 72 Tex. L. Rev. 211 (1993); Lawrence Lessig, Fidelity in Translation, 71 Tex. L. Rev. 1165 (1993); and Laurence H. Tribe, The Puzzling Persistence of ProcessBased Constitutional Theories, 89 Yale L.J. 1063 (1980).
103. The following is a sample, by no means exhaustive, of those commentators who have argued for reading evolutionary intent into the Constitution: Bickel, supra note 9; Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (1993); John H. Ely, Democracy and Distrust: A Theory of Judicial Review (1980); Cass R. Sunstein, The Partial Constitution (1993); Charles L. Black, Jr., On Reading and Using the Ninth Amendment, in Power and Policy in Quest of Law: Essays in Honor of Eugene Victor Rostow 187 (Myres S. McDougal & W. Michael Reisman eds., 1985); James E. Fleming, Constructing the Substantive Constitution, 72 Tex. L. Rev. 211 (1993); Lawrence Lessig, Fidelity in Translation, 71 Tex. L. Rev. 1165 (1993); and Laurence H. Tribe, The Puzzling Persistence of ProcessBased Constitutional Theories, 89 Yale L.J. 1063 (1980).
104. The following is a sample, by no means exhaustive, of those commentators who have argued for reading evolutionary intent into the Constitution: Bickel, supra note 9; Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (1993); John H. Ely, Democracy and Distrust: A Theory of Judicial Review (1980); Cass R. Sunstein, The Partial Constitution (1993); Charles L. Black, Jr., On Reading and Using the Ninth Amendment, in Power and Policy in Quest of Law: Essays in Honor of Eugene Victor Rostow 187 (Myres S. McDougal & W. Michael Reisman eds., 1985); James E. Fleming, Constructing the Substantive Constitution, 72 Tex. L. Rev. 211 (1993); Lawrence Lessig, Fidelity in Translation, 71 Tex. L. Rev. 1165 (1993); and Laurence H. Tribe, The Puzzling Persistence of ProcessBased Constitutional Theories, 89 Yale L.J. 1063 (1980).
105. The following is a sample, by no means exhaustive, of those commentators who have argued for reading evolutionary intent into the Constitution: Bickel, supra note 9; Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (1993); John H. Ely, Democracy and Distrust: A Theory of Judicial Review (1980); Cass R. Sunstein, The Partial Constitution (1993); Charles L. Black, Jr., On Reading and Using the Ninth Amendment, in Power and Policy in Quest of Law: Essays in Honor of Eugene Victor Rostow 187 (Myres S. McDougal & W. Michael Reisman eds., 1985); James E. Fleming, Constructing the Substantive Constitution, 72 Tex. L. Rev. 211 (1993); Lawrence Lessig, Fidelity in Translation, 71 Tex. L. Rev. 1165 (1993); and Laurence H. Tribe, The Puzzling Persistence of ProcessBased Constitutional Theories, 89 Yale L.J. 1063 (1980).
106. The following is a sample, by no means exhaustive, of those commentators who have argued for reading evolutionary intent into the Constitution: Bickel, supra note 9; Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (1993); John H. Ely, Democracy and Distrust: A Theory of Judicial Review (1980); Cass R. Sunstein, The Partial Constitution (1993); Charles L. Black, Jr., On Reading and Using the Ninth Amendment, in Power and Policy in Quest of Law: Essays in Honor of Eugene Victor Rostow 187 (Myres S. McDougal & W. Michael Reisman eds., 1985); James E. Fleming, Constructing the Substantive Constitution, 72 Tex. L. Rev. 211 (1993); Lawrence Lessig, Fidelity in Translation, 71 Tex. L. Rev. 1165 (1993); and Laurence H. Tribe, The Puzzling Persistence of ProcessBased Constitutional Theories, 89 Yale L.J. 1063 (1980).
107. Each of the writers who favor examining evolutionary intent would fill the open provisions of the Constitution with meaning based upon their respective theories. For example, Professor Thayer would argue that the Constitution sets up a system of democracy akin to England's. Thus, democratic outcomes should generally not be disturbed. Thayer, supra note 79, at 9. Professor Dworkin argues that the Constitution's open provisions must be filled with our aspirational principles, and those principles are discovered via good argument. For an explanation of discovering aspirational principles via good argument, see Dworkin, supra note 86, at 145-46. Professor Ely would fill in the open provisions of the Constitution by making the courts the guardians of democratic procedure. Ely, supra note 86, at 73-74. Professor Sunstein would fill in the open provisions of the text with liberal republicanism, or "deliberative democracy." Sunstein, supra note 86, at 123.
108. Hudson v. McMillian, 503 U.S. 1, 18 (1992) (Thomas, J., dissenting) (arguing that traditionally the Eighth Amendment only applied to punishments given out by judges, not inhumane prison conditions); Harmelin v. Michigan, 501 U.S. 957, 968-73 (1991) (Scalia, J.) (using historical analysis to argue that the cruel and unusual language referred to punishments considered barbaric and inhumane, such as drawing and quartering, burning, disemboweling alive, etc.); Furman v. Georgia, 408 U.S. 238, 465 (1972) (Rehnquist, J., dissenting) (arguing for judicial deference towards a "penalty [the death penalty] that our Nation's legislators have thought necessary since our country was founded"); see also Scalia, Originalism, supra note 85, at 862 (arguing that the evolutionary intention of the words of the Eighth Amendment is "far from clear; and I know no historical evidence for that meaning").
109. Furman, 408 U.S. at 465 (Rehnquist, J., dissenting) (arguing that the death penalty is constitutional based upon its historical acceptance); Radin, supra note 66, at 1012-13.
110. Furman, 408 U.S. at 263-68 (Brennan, J., concurring) (arguing that the Clause's indefiniteness is intentional, and designed to limit the legislature's power to inflict punishment); id. at 329 (Marshall, J., concurring) (arguing that the most important principle in the Clause is that it must have evolutionary meaning); Coker v. Georgia, 433 U.S. 584, 603 (1977) (Powell, J., concurring in part and dissenting in part) (defining "evolving standards of decency" via legislative actions and jury behavior in capital cases). Many scholars also endorse this view. See, e.g., Bickel, supra note 9, at 106-10 (arguing for the judicial vindication of individual liberties); Dworkin supra note 86, at 118-47 (defending an aspirational reading of the Constitution that vindicates fundamental liberties); Sunstein, supra note 86, at 1-39, 347-54 (advocating judicial enforcement of liberal republican values). For a critique of commentators, who, like Professor Bickel, favor evolutionary meaning, see Bork, supra note 85, at 187-93, 213-14 (discussing the proponents of evolutionary intent as "revisionists" who alter the meaning of the Constitution to suit political ends), and Ely, supra note 86, at 43-72 (criticizing those who believe that judges should protect substantive liberties instead of acting as guardians of procedural fairness).
111. Coker, 433 U.S. at 603 (Powell, J., concurring in part and dissenting in part) (stating that decency must be defined by indicators like legislative enactments and jury sentencing behavior); Furman, 408 U.S. at 385-86 (Burger, C.J., dissenting) (relying on indicators like public opinion polls and legislative enactments to determine constitutionality).
112. See Furman, 408 U.S. at 271-79 (Brennan, J., concurring) (suggesting the Eighth Amendment prohibits punishments that are degrading to human dignity, inflicted arbitrarily, unacceptable to modern society, or excessive); id. at 360-69 (Marshall, J., concurring) (determining the extent to which there is an underlying consensus regarding capital punishment); Radin, supra note 66, at 1039 (explaining that Justice Marshall has attempted to discern the public's deeply held beliefs about a particular punishment when analyzing it under the Eighth Amendment).
113. See Gregg v. Georgia, 428 U.S. 153, 232 (1976) (Marshall, J., dissenting).
114. See, e.g., Furman, 408 U.S. at 341-42 (Marshall, J., concurring) (attempting to discern underlying consensus regarding capital punishment); Dworkin, supra note 86, at 135-38.
115. Furman, 408 U.S. at 270 (Brennan, J., concurring); Dworkin, supra note 86, at 135-38.
116. See supra notes 84-87 and accompanying text.
117. See supra part II.B.3.
118. See supra part II.B.3.b.
119. Trop v. Dulles, 356 U.S. 86, 101 (1958).
120. For a more general discussion of how the open provisions of the Constitution should be read, and the textual justification for such a reading, see, for example, Dworkin, supra note 86, at 132-44 (arguing that the text should be interpreted as a framework of aspirational principles). See also Sunstein, supra note 86, at 93-104 (interpreting the Constitution as embodying liberal republican values); Black, supra note 86, at 187 (using the Ninth Amendment as a rule of construction to justify the protection of unenumerated rights).
121. Ronald Dworkin, Taking Rights Seriously 135-36 (1977).
122. The Sixth Amendment states: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. U.S. Const. amend. VI.
123. Dworkin, supra note 86, at 135-36; Radin, supra note 66, at 1031-32.
124. In Harmelin v. Michigan, 501 U.S. 957 (1991), Justice Scalia argued that the Eighth Amendment contains no proportionality guarantee because the language of the Clause does not bear such a construction. Justice Scalia claimed that "cruel and unusual" was not the way that the Framers would have stated a proportionality principle because it was too vague. If the Framers had wanted proportionality, Justice Scalia contended, they would have said so explicitly. To support his contention that the Framers did not use language carelessly, he gives the example of Thomas Jefferson's introduction in the Virginia legislature of a proposal entitled a "Bill to Proportion Punishments" that was intended to make punishments proportional. Id. at 977. Thus, if the Framers had wanted a proportionality requirement, the Framers knew how to so specify, and would not have used such imprecise language. Although the question of whether the Eighth Amendment contains a strict proportionality guarantee is outside the consideration of this Note, Justice Scalia's analysis can be used to show that the Clause should not be interpreted as a static list of cruel punishments. Rather, as Justice Scalia points out, the Framers knew how to express what they wanted precisely. If they had wanted to confine cruel and unusual punishments to those specific practices that they considered cruel, they would have provided correspondingly more specific and precise language to express that intention. Their use of the capacious language forbidding "cruel and unusual" punishments, however, supports the contention that the Framers intended that the Clause be given evolutionary meaning. Thus, the Clause should be read to allow future generations to determine what punishments they consider cruel and unusual. This view of the Eighth Amendment leaves it vital and applicable to changing times. See Dworkin, supra note 101, at 136 (stating that the Clause's appeal to moral concepts cannot be fixed and must remain open to changing interpretations).
125. See Ingraham v. Wright, 430 U.S. 651, 670-71 n.39 (1977) (suggesting that ear cropping, acceptable at the time of the Founding, would now be unacceptable); Jackson v. Bishop, 404 F.2d 571, 578-79 (8th Cir. 1968) (tradition of using strap as disciplinary device on inmates was not determinative of whether it is cruel for Eighth Amendment purposes); Dworkin, supra note 86, at 135-38.
126. Dworkin, supra note 86, at 132-44.
127. See, e.g., Sunstein, supra note 86, at 93-104, 107-10.
128. Dworkin, supra note 86, at 135-38; Radin, supra note 66, at 1032; see also Sunstein, supra note 86, at 97 (citing the negative effects that the Originalist reading would have on fundamental liberties).
129. Bickel, supra note 9, at 106-07 (arguing against interpreting the Constitution with the specific intent of the Framers); Dworkin, supra note 86, at 136-37; Radin, supra note 66, at 1032. For an example of criticism of this approach to Eighth Amendment interpretation, see Scalia, Interpretation, supra note 85, at 39-41, 144-49.
130. See Bickel, supra note 9, at 106-08; Dworkin, supra note 86, at 135-36; Radin, supra note 66, at 1032.
131. 217 U.S. 349 (1910).
132. Id. at 373.
133. See Scalia, Interpretation, supra note 85, at 41-44.
134. Id.
135. See Bork, supra note 85, at 252-53; Scalia, Interpretation, supra note 85, at 9-10 (discussing the uncomfortable relationship of common law courts and democratic rule).
136. See Scalia, Interpretation, supra note 85, at 9-14.
137. See supra notes 115-16 and accompanying text.
138. Bickel, supra note 9, at 16; Federalist No. 78, supra note 80, at 467 (stating that the Constitution ought to be preferred over a statute when the two conflict).
139. See Federalist No. 78, supra note 80, at 469 (calling judges the "bulwarks of a limited Constitution"); Bickel, supra note 9, at 16.
140. See, e.g., Furman v. Georgia, 408 U.S. 238, 436-40 (1972) (Powell, J., dissenting); id. at 385-88 (Burger, C.J., dissenting); see supra part II.B.3.b.
141. See, e.g., Trop v. Dulles, 356 U.S. 86, 102 (1958) (invalidating legislature's punishment of expatriation for certain criminal offenses); Weems v. United States, 217 U.S. 349, 382 (1910) (proscribing Philippine punishment of cadena temporal); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 128 (1810) (Marshall, C.J.) (explaining the sensitive function of the judiciary in reviewing legislative enactments for constitutionality); Dworkin, supra note 86, at 122-23; Ely, supra note 86, at 73-104; Radin, supra note 66, at 1034-36.
142. See Furman, 408 U.S. at 263 (Brennan, J., concurring) (arguing that a primary purpose of the Bill of Rights was to check the power of the legislature); see also Dworkin, supra note 101, at 191-92 (suggesting that certain rights must be placed outside the reach of majorities because they are preconditions to proper democratic functioning); Fleming, supra note 86, at 217-18 (explaining the role of the Constitution in securing fundamental rights as preconditions of deliberative democracy); Radin, supra note 66, at 1035-36 (arguing that it is improper to rely on opinion polls in constitutional adjudication).
143. See supra note 120-22.
144. See supra note 118-22 and accompanying text.
145. Furman, 408 U.S. at 345 (Marshall, J., concurring); see Dworkin, supra note 86, at 122-23; Radin, supra note 66, at 1035-36.
146. Furman, 408 U.S. at 361 (Marshall, J., concurring); Radin, supra note 66, at 1039.
147. John Hart Ely has written that gleaning the content of the Cruel and Unusual Punishment Clause from consensus is vulnerable to being directly contradicted by subsequent legislative enactments. Ely, supra note 86, at 65, 173-74. As an example of the dangers of the consensus approach, he points to Justices Brennan and Marshall's concurring opinions in Furman, in which they stated their beliefs that capital punishment is unconstitutional because it is out of accord with society's values. Stated differently, Justices Brennan and Marshall expressed their belief that the Constitution embodies an aspirational principle inidcating that, at this point in our history, capital punishment is unconstitutional. See Furman, 408 U.S. at 279 (Brennan, J., concurring) (stating that legislative authorization of a punishment does not establish acceptance of the punishment); id. at 361 (Marshall, J., concurring) (stating that, in determining whether a punishment is cruel, public opinion is of limited utility, and that the determination really depends on whether "people who were fully informed as to the purposes of the penalty and its liabilities would find the penalty shocking, unjust, and unacceptable"). Shortly after the Supreme Court issued its judgment in Furman, however, Ely pointed out that the "virtual stampede" of reenactments of the death penalty sharply rebuked the belief that capital punishment was not in accord with society's values. Id. But the validity of Ely's criticism depends upon how one defines "consensus." If one accepts the proposition, advocated by those such as Justice Powell, that consensus is found in legislation and public opinion polls, then Ely's criticism is exactly right. Justices Brennan and Marshall look to higher aspirational principles when determining consensus. Ely's criticism is not germane to the aspirational model because according this model, legislation is valid only when it is in accord with the Constitution's higher aspirational principles. See Dworkin, supra note 86, at 135-38 (arguing that the Constitution is a constitution of comprehensive aspirational principles). Justices Brennan and Marshall would argue that capital punishment statutes are inconsistent with the higher aspirational principles of the Constitution, and thus the numerous capital punishment statutes passed after Furman are not proper indicators of the constitutionality of capital punishment. See also supra notes 118-22 and accompanying text.
148. See Dworkin, supra note 86, at 119-25.
149. Id.
150. Id.; see supra part III.A.2 (discussing the judge's role in protecting the higher law of the Constitution from the encroachments of legislative enactments).
151. Bickel, supra note 9, at 16; Federalist No. 78, supra note 80, at 467-69.
152. John Rawls, A Theory of Justice 48-51 (1971) (describing reflective equilibrium); see Dworkin, supra note 101, at 248-53 (describing the same basic concept in terms of a moral position); Radin, supra note 66, at 1041.
153. See Rawls, supra note 132, at 48; Radin, supra note 66, at 1041.
154. Radin, supra note 66, at 1040-41.
155. Id.
156. Id.
157. Id. at 1041-42. For an example of a judge discerning underlying consensus, see Justice Brennan's concurrence in Furman v. Georgia, 408 U.S. 238, 257-306 (1972).
158. See Bickel, supra note 9, at 16 (explaining that when there is conflict between the Constitution and ordinary law, the Constitution governs); Dworkin, supra note 86, at 137 (stating that the Constitution was designed to lay out aspirational principles of government).
159. See Poe v. Ullman 367 U.S. 497, 548-51 (1961) (Harlan, J., dissenting) (explaining that the Fourth Amendment's role is to protect the home from government intrusion absent compelling justification).
160. See Roe v. Wade, 410 U.S. 113, 152-53 (1973) (holding Texas' abortion statute unconstitutional because it was inconsistent with the fundamental right to privacy).
161. See Furman, 408 U.S. at 271-74 (Brennan, J., concurring) (discerning
162. Furman, 408 U.S. at 271-79. Justice Brennan also discussed proportionality and excessiveness as criteria to guide a judge. Id. This Note, however, does not utilize these two inquiries because they raise the question of whether the Clause contains a proportionality requirement. Rather, this Note focuses on whether castration is cruel, not on whether it is proportional. See supra part II.B.1.
163. Furman, 408 U.S. at 280 (Brennan, J., concurring).
164. Id.; Radin, supra note 66, at 1043.
165. Furman, 408 U.S. at 280-82 (Brennan, J., concurring). Another objective of punishment is retribution. The Eighth Amendment limits the extent to which society may punish; punishment may not be cruel. Thus, arguing that retribution is a sufficient basis to justify chemical castration assumes what must be proven through good argument, i.e., that chemical castration is not cruel.
166. See supra part I (explaining that Depo-Provera research was done only with paraphiliac offenders, and not with other recognized classes of sexual offenders).
167. See supra part I.B.
168. See supra part I.B.
169. See supra part I.C.
170. Furman v. Georgia, 408 U.S. 238, 270-73 (1972) (Brennan, J., concurring) (arguing that the import of many of the Court's cruelty cases is that "even the vilest criminal remains a human being possessed of common human dignity"); cf. Robinson v. California, 370 U.S. 660, 666-67 (1962) (holding that the state is not permitted to treat disease as a crime because "[e]ven one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold"); Trop v. Dulles, 356 U.S. 86, 101 (1958) (explaining that expatriation amounts to denial by society of the individual's membership in a human community); Weems v. United States, 217 U.S. 349, 366 (1910) (stating that the punishment of cadena temporal, the binding of hands and ankles in chains, followed by the loss of all civil rights, is completely degrading); see also Radin, supra note 66, at 1043. Professor Dworkin uses language of "equal concern and respect" when referring to the requirement that all persons be treated with dignity. See Dworkin, supra note 101, at 180.
171. See supra note 150.
172. Cf. Trop v. Dulles, 356 U.S. 86, 101-02 (1958) (holding the punishment of denationalization inhumane and cruel because it involves the loss of the right to have rights).
173. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).
174. Planned Parenthood v. Casey, 505 U.S. 833, 857 (1992).
175. Roe v. Wade, 410 U.S. 113, 153 (1973).
176. Furman v. Georgia, 408 U.S. 238, 273 (1972) (Brennan, J., concurring).
177. See supra notes 146-49 and accompanying text.
178. See supra part III.A.
179. See supra part III.A.
180. Margaret Jane Radin, Risk-of-Error Rules and Non-Ideal Justification, in Justification 33, 34 (J. Roland Pennock & John W. Chapman eds., 1986) (Nomos XXVIII) [hereinafter Radin, Justification]; Radin, supra note 66, at 1017.
181. See Radin, Justification, supra note 160, at 37.
182. Radin points out that the reality of error calls into question the usefulness in practice of rules that are developed in the errorless ideal world, because the certainty of error undermines their justness. Id.
183. Id. at 34.
184. Id. at 39.
185. Id. at 34.
186. In re Winship, 397 U.S. 358, 369-72 (1970) (Harlan, J., concurring) (stating that standards of proof represent the confidence that we require to find a person guilty); Barbara D. Underwood, The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases, 86 Yale L.J. 1299, 1331-38 (1977) (explaining the policies served by evidentiary burdens); see also John Kaplan, Decision Theory and the Factfinding Process, 20 Stan. L. Rev. 1065, 1071-77 (1968) (noting that the choice of standard of proof in a case reflects a judgment of the comparable social costs of erroneous determinations).
187. In re Winship, 397 U.S. 358, 369-72 (1970) (Harlan, J., concurring) (stating that standards of proof represent the confidence that we require to find a person guilty); Barbara D. Underwood, The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases, 86 Yale L.J. 1299, 1331-38 (1977) (explaining the policies served by evidentiary burdens); see also John Kaplan, Decision Theory and the Factfinding Process, 20 Stan. L. Rev. 1065, 1071-77 (1968) (noting that the choice of standard of proof in a case reflects a judgment of the comparable social costs of erroneous determinations).
188. See, e.g., Lego v. Twomey, 404 U.S. 477, 494 (1972) (Brennan, J., dissenting) (arguing that the standard of requiring guilt beyond a reasonable doubt provides substance for the presumption of innocence); cf. Harry T. Edwards, To Err Is Human, But Not Always Harmless: When Should Legal Error Be Tolerated?, 70 N.Y.U. L. Rev. 1167, 1173 (1995) (arguing that in criminal appeals, judges should attempt to determine the overall effect on the verdict that error may have had in order to preserve the fundamental individual liberties at stake).
189. For a general discussion of the role that evidentiary burdens play in the courts, see George P. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L.J. 880, 894 (1968) (stating that burdens of persuasion function to adjust the interests of competing classes of litigants).
190. The Fourth Amendment provides that, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const, amend. IV. See also Donald L. Doernberg, "The Right of the People": Reconciling Collective and Individual Interests Under the Fourth Amendment, 58 N.Y.U. L. Rev. 259, 260 (1983) (stating that one of the Fourth Amendment's purposes is to protect the personal privacy rights of individuals).
191. See Weeks v. United States, 232 U.S. 383 (1914) (holding that letters obtained by a United States official without a warrant were not admissible as evidence because they were obtained in violation of the defendants' constitutional rights).
192. See Payton v. New York, 445 U.S. 573, 584-90 (1980) (protecting the home and the privacy of the individual from search absent a magistrate's finding of probable cause); Rakas v. Illinois, 439 U.S. 128, 143 (1978) (holding that society protects the expectation of privacy in the home); William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 Va. L. Rev. 881, 924-25 (1991) (explaining that the privacy of the home protected by the probable cause warrant requirement); see also Margaret Jane Radin, Property and Personhood, 34 Stan. L. Rev. 957, 1001-02, (1982) (discussing risk of error in the context of the Fourth Amendment's protection of "houses, papers, and effects").
193. See Payton v. New York, 445 U.S. 573, 584-90 (1980) (protecting the home and the privacy of the individual from search absent a magistrate's finding of probable cause); Rakas v. Illinois, 439 U.S. 128, 143 (1978) (holding that society protects the expectation of privacy in the home); William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 Va. L. Rev. 881, 924-25 (1991) (explaining that the privacy of the home protected by the probable cause warrant requirement); see also Margaret Jane Radin, Property and Personhood, 34 Stan. L. Rev. 957, 1001-02, (1982) (discussing risk of error in the context of the Fourth Amendment's protection of "houses, papers, and effects").
194. 410 U.S. 113 (1973)
195. See id. at 159-60 (stating that the Court need not resolve the question of whether the fetus was alive).
196. See id. at 162-66 (holding that the state could not choose to err against the rights of the pregnant woman in the absence of consensus that the fetus was a full person).
197. 497 U.S. 261 (1990).
198. Id. at 283 (arguing that it is preferable to leave the patient on life support rather than remove her because the latter action would, if wrong, constitute irreversible error).
199. Radin, supra note 66, at 1024-25.
200. Id. at 1022.
201. Id. at 1024-25; Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (holding a state law subject to stringent review because the state, if wrong, would do "irreparable injury" to the individual); Addington v. Texas, 441 U.S. 418, 423-24 (1979) (stating that the graver the deprivation of rights, the more the state bears the risk of error upon itself); Cruzan v. Missouri Dep't of Health, 497 U.S. 261, 283 (1990) (stating that "[t]he more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision").
202. 316 U.S. 535 (1942).
203. Id. at 541.
204. See supra note 175 and accompanying text.
205. Cruzan, 497 U.S. at 283.
206. Green, supra note 18, at 7 (pointing out that Depo-Provera causes cancer in laboratory animals); Melella, supra note 50, at 225 (stating that studies have shown that the drug causes breast cancer in female dogs and uterine cancer in monkeys); Stone, supra note 51, at 1754 (discussing uncertainty surrounding the potential long-term adverse health effects of Depo-Provera, including cancer and osteoporosis); Vanderzyl, supra note 28, at 117-18; PDR, supra note 10, at 2082 (indicating potential side effects of Depo-Provera).
207. See Melella, supra note 50, at 225; Stone, supra note 51, at 1754.
208. See supra note 15; Stone, supra note 51, at 1754.
209. See Melella, supra note 50, at 225; Green, supra note 18, at 24; Hicks, supra note 12, at 661; Vanderzyl, supra note 28, at 122.
210. The California Statute is written to apply to all offenders guilty of repeat sexual offenses; insofar as a woman commits two sexual offenses, she is subject to the law. Cal. Penal Code § 645 (West Supp. 1997); see Senate Rules Committee Hearings, supra note 28, at 8 (explaining that as written the statute applies to women as well as men).
211. PDR, supra note 10, at 2079-81.
212. Walker, supra note 11, at 435; Fitzgerald, supra note 2, at 7.
213. Melella, supra note 50, at 228 (noting that administration of Depo-Provera probably prevents recipients from fathering a child); Green, supra note 18, at 24; Hicks, supra note 28, at 122; Money, supra note 18, at 168.
214. See supra notes 11-14 and accompanying text.
215. See supra note 26 and accompanying text.
216. Melella, supra note 50, at 225 (recipient of Depo-Provera could probably not father a child); see also Green, supra note 18, at 24 (arguing that Depo-Brovera eliminates a man's ability to procreate); Hicks, supra note 12, at 646 (stating that DepoProvera causes temporary impotence); Money, supra note 18, at 168 (stating that Depo-Provera induces erotic apathy and thereby eliminates any behavior "requiring an erect penis").
217. See, e.g., Fitzgerald, supra note 2, at 6 (stating that all effects of the drug cease with suspension of treatment); Melella, supra note 50, at 225 (stating that effects are temporary and reversible).
218. See Margaret J. Radin, Cruel Punishment & Respect for Persons: Super Due Process for Death, 53 S. Cal. L. Rev. 1143, 1162 (1980) (arguing that the fact that the effects of a punishment can be undone does not make the original deprivation any less unjust).
219. In re Winship, 397 U.S. 358, 362 (1970) (explaining that a higher standard of proof of guilt is needed to protect individual rights).
220. Melella, supra note 50, at 225 (stating that Depo-Provera deprives the offender of reproductive freedom); Vanderzyl, supra note 28, at 122.
221. See supra note 25 and accompanying text.
222. The California Statute provides that the offender will be given Depo-Provera until he no longer poses a threat. Because the law, as written, will not result in rehabilitating any offenders, the administrants will arguably never cease to be a threat to society. See supra notes 16-41 and accompanying text. Thus, the most likely result of the California Statute is that recipients will be administered Depo-Provera indefinitely.
223. See supra notes 62-63 and accompanying text (discussing the legislative history of § 645).
224. Radin, supra note 66, at 1025.
225. Id.; Furman v. Georgia, 408 U.S. 238, 271-73 (1972) (Brennan, J., concurring) (explaining the nature of severe punishments); Vanderzyl, supra note 28, at 129.
226. See Radin, supra note 66, at 1026; cf. Trop v. Dulles, 356 U.S. 86, 101-02 (1958) (noting that expatriation is the most severe punishment because it involves the loss of the right to have rights).
227. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); Melella, supra note 50, at 226-27; Vanderzyl, supra note 28, at 121-24; see supra notes 189-94 and accompanying text.
228. Roe v. Wade, 410 U.S. 113, 153 (1973); Melella, supra note 50, at 226; Vanderzyl, supra note 28, at 118-21.
229. Cruzan v. Missouri Dep't of Health, 497 U.S. 261, 278 (1990); Melella, supra note 50, at 226; Vanderzyl, supra note 28, at 124-26. It is possible to argue that the opportunity to refuse parole provides a choice for the offender. See Kenneth B. Fromson, Beyond an Eye for an Eye: Castration as an Alternative Sentencing Measure, 11 N.Y.L. Sch. J. Hum. Rts. 311, 332-33 (1994). This Note submits, however, that the alternative to accepting the treatment, remaining in prison, is coercive, and therefore does not give the opportunity for free choice. See United States v. Pierce, 561 F.2d 735, 739 (9th Cir. 1977) (stating that the defendant's consent to a probation condition is "likely to be nominal where consent is given only to avoid imprisonment"); Jeffrey N. Hurwitz, House Arrest: A Critical Analysis of an Intermediate-Level Penal Sanction, 135 U. Pa. L. Rev. 771, 795 (1987).
230. Cruzan v. Missouri Dep't of Health, 497 U.S. 261, 278 (1990); Melella, supra note 50, at 226; Vanderzyl, supra note 28, at 124-26. It is possible to argue that the opportunity to refuse parole provides a choice for the offender. See Kenneth B. Fromson, Beyond an Eye for an Eye: Castration as an Alternative Sentencing Measure, 11 N.Y.L. Sch. J. Hum. Rts. 311, 332-33 (1994). This Note submits, however, that the alternative to accepting the treatment, remaining in prison, is coercive, and therefore does not give the opportunity for free choice. See United States v. Pierce, 561 F.2d 735, 739 (9th Cir. 1977) (stating that the defendant's consent to a probation condition is "likely to be nominal where consent is given only to avoid imprisonment"); Jeffrey N. Hurwitz, House Arrest: A Critical Analysis of an Intermediate-Level Penal Sanction, 135 U. Pa. L. Rev. 771, 795 (1987).
231. See Skinner, 316 U.S. at 541; Roe, 410 U.S. at 153; see also Cruzan, 497 U.S. at 278 (holding that the patient has right to refuse medical treatment); Furman v. Georgia, 408 U.S. 238, 286-88 (1972) (Brennan, J., concurring) (stating that the more severe a punishment is, the stricter the review that the Court should apply); cf. Trop, 356 U.S. at 101-02 (scrutinizing the punishment of expatriation because it denies the right to have rights).
232. Radin, supra note 66, at 1028-29; see also Harmelin v. Michigan, 501 U.S. 957, 979-85 (1991) (Scalia, J.) (stating that the Clause was intended to prohibit punishments that were historically proscribed).
233. See supra note 18 and accompanying text (discussing early Depo-Provera research).
234. See Weems v. United States, 217 U.S. 349, 377 (1910) (characterizing as cruel various types of physical alteration, such as castration). Many commentators have concluded that the word "unusual" in the Clause refers to those punishments that were traditionally illegal, or unavailable, to judges as a means of punishment. Because American courts have not had access to castration as a punishment, castration is "unusual" in that it has never been a legally available punishment in the United States. See Anthony Granucci, "Nor Cruel and Unusual Punishments Inflicted": The Original Meaning, 57 Cal. L. Rev. 839, 859 (1969).
235. See 1996 CA AB 3339 (repealing the law authorizing surgical castration and instead providing that, upon parole, a judge may order a first time offender, and must order a second time offender, to be chemically castrated, in addition to any other punishments prescribed by law).
236. See, e.g., Cruzan v. Missouri Dep't of Health, 497 U.S. 261 (1990) (upholding the individual's liberty interest in refusing unwanted treatment); see also Skinner v. Oklahoma, 316 U.S. 535 (1942) (prohibiting the use of compulsory vasectomies as criminal punishment, on the grounds that such a punishment violates the fundamental rights component of equal protection).
237. See, e.g., Skinner, 316 U.S. at 541; Roe v. Wade, 410 U.S. 113 (1973).
238. See supra notes 189-94 (arguing that Depo-Provera eliminates procreative ability in men and women).
239. Cruzan, 497 U.S. at 280 (upholding the right to refuse medical treatment).
240. See supra notes 189-94 and accompanying text (arguing that Depo-Provera will eliminate the procreative ability of men and women).
241. See Weems v. United States, 217 U.S. 349, 366 (1910) (invalidating the use cadena temporal because it entails great physical hardship); Harmelin v. Michigan, 501 U.S. 957, 981 (1991) (arguing that the purpose of the Clause was to prevent "horrible tortures" such as maiming, mutilating and scourging to death).
242. See supra note 15 and accompanying text.
243. See supra note 15 and accompanying text.
244. Radin, supra note 66, at 1026-27.
245. Id. at 1027-28.
246. See infra note 224 (outlining the prevalence of the problem).
247. Riesenberg, supra note 12, at 900; see also A. Kenneth Fuller, Child Molestation and Pedophelia: An Overview for the Physician, 261 JAMA 602 (1989) (discussing the prevalence of child sex abuse); Hicks, supra note 12, at 664 (same); Vanderzyl, supra note 28, at 138 (noting that 40% of sexual offenders will commit repeat offenses); Sandra G. Boodman, Does Castration Stop Sex Crimes? An Old Punishment Gains New Attention, But Experts Doubt Its Value, Wash. Post, Mar. 17, 1992, (Health Magazine) at 7 (stating that 40% of sexual offenders will commit repeat crimes).
248. Riesenberg, supra note 12, at 900; see also A. Kenneth Fuller, Child Molestation and Pedophelia: An Overview for the Physician, 261 JAMA 602 (1989) (discussing the prevalence of child sex abuse); Hicks, supra note 12, at 664 (same); Vanderzyl, supra note 28, at 138 (noting that 40% of sexual offenders will commit repeat offenses); Sandra G. Boodman, Does Castration Stop Sex Crimes? An Old Punishment Gains New Attention, But Experts Doubt Its Value, Wash. Post, Mar. 17, 1992, (Health Magazine) at 7 (stating that 40% of sexual offenders will commit repeat crimes).
249. See supra part I.C (discussing that research has not been done with non-paraphiliac offenders). It is also important to note that non-paraphiliac offenders compose a significant percentage of sex offenders. See Kee MacFarlane, Program Considerations in the Treatment of Incest Offenders, in The Sexual Aggressor 62, 62-63 (Joanne G. Greer & Irving R. Stuart eds., 1983) (stating that incest, a form of sexual dysfunction distinguishable from a paraphilia, is a considerable and widespread problem); Stuart B. Silver & Michael K. Spodak, Forensic Mental Evaluation of the Violent Sexual Offender, in The Sexual Aggressor 42, 42-58 (Joanne G. Greer & Irving R. Stuart eds., 1983) (demonstrating the prevalence of violent sexual offenders, or Type III offenders, by giving a means of evaluating such offenders for the purposes of criminal prosecution).
250. See supra part I.C (discussing that research has not been done with non-paraphiliac offenders). It is also important to note that non-paraphiliac offenders compose a significant percentage of sex offenders. See Kee MacFarlane, Program Considerations in the Treatment of Incest Offenders, in The Sexual Aggressor 62, 62-63 (Joanne G. Greer & Irving R. Stuart eds., 1983) (stating that incest, a form of sexual dysfunction distinguishable from a paraphilia, is a considerable and widespread problem); Stuart B. Silver & Michael K. Spodak, Forensic Mental Evaluation of the Violent Sexual Offender, in The Sexual Aggressor 42, 42-58 (Joanne G. Greer & Irving R. Stuart eds., 1983) (demonstrating the prevalence of violent sexual offenders, or Type III offenders, by giving a means of evaluating such offenders for the purposes of criminal prosecution).
251. See supra part I.B.
252. In fact, the revised version of § 645 does not recognize any classes of offenders. The law simply mandates that all repeat offenders without reference to category, shall be chemically castrated upon parole, in addition to any other punishment prescribed by law. See Cal. Penal Code § 645 (West Supp. 1997).
253. See Fitzgerald, supra note 2, at 5 (discussing the use of Depo-Provera after comprehensive diagnosis and as part of a comprehensive treatment program).
254. Hicks, supra note 12, at 648, 665. Dr. Fred Berlin believes that the California Statute will prove ineffective because it does not require an assessment of the participants, their willingness to be treated, or any other form of counseling that could end their dysfunction. He stated, "I would never drop off someone once a week for a shot [of Depo-Provera] and think that constitutes adequate treatment." Cohen, supra note 28, at 4; see also Douglas J. Besharov, Sex Offenders: Is Castration an Acceptable Punishment?, 78 A.B.A. J., July 1992, at 42 (stating that "hormone treatment does not work for anti-social personalities or for those whose sex offenses are motivated by feelings of anger, violence, or power").