Research Papers /
Writing Paper for Criminal Justice Class on Castrations [2]
The use of castration as a punitive measure in the criminal justice system is not only wrong but it is also unconstitutional. Castrating someone in exchange for a lenient or no sentence at all is unfair to the victims and their families that have to deal with the fact that their assaulter is at large once again. I agree with Kari Vanderzyl because there are several challenges that the sterilization movement must overcome for this type of "treatment" to be constitutional. The problems lie in the Fourteenth and Eighth Amendments with regards to the right to privacy, the right of procreation, and cruel and unusual punishment.
Although there is no specific right to privacy in the Constitution the Supreme Court has ruled that in the case of Griswold v. Connecticut that section 1 of the Fourteenth Amendment, the Due Process Clause, creates a "zone of privacy" for all individuals under the law. The Court went on further to say that any individual has the right to be free from government intrusion especially in the right to procreate. This already makes castration unconstitutional in my eyes because you are taking away the right of the offender to procreate. However, I do think that like the Fourth Amendment, you can waive your right to privacy and to procreate but I do not think that this should be done just to get a lighter sentence. The choice of castration however, would not be voluntary for offenders because if you had the choice to go to prison labeled a child molester or have a procedure where you don't have to go to prison you would probably pick the procedure every time. Because going to prison a child molester is like being thrown into the lion's den, and offenders know this, making real consent to this type of procedure impossible.
Also under the Fourteenth Amendment in the same Due Process Clause is the fundamental right to procreation. In Skinner v. Oklahoma Justice Douglas called this " one of the basic civil rights of man." Obviously when you castrate someone you are taking away their right to have children, which is protected under the Fourteenth Amendment. The only way I think castration would be constitutional was if you had it as an option but you still had to serve out your time that you received for committing the crime. There would also need to be some sort of counseling to help facilitate this process and hopefully rehabilitate you so you won't come back to prison. Because rehabilitation should be the goal of the criminal justice system in the first place, not just locking the door and throwing away the key as it is now.
Castration would also violate the Eighth Amendment, which is cruel and unusual punishment. For a punishment to be unconstitutional it must be inherently cruel, disproportionate to the offense, or exceed the extent necessary to achieve the government's objectives. In the State v. Brown case, the Court ruled that castration is the same as physical mutilation and that would violate the cruelty requirement in the Eighth Amendment. Every person, even sex offenders, has the right to be free from government intrusion. They can also choose to not receive any surgical or pharmacological treatment. Should the castration issue be brought to the courts I think they would find that it does violate the Eighth Amendment. This makes sense to me that castration would be defined as physical mutilation but I also think that if it were truly voluntary, as in no extra incentives to do it, that it could be ruled constitutional. I think when you add in things like a lighter sentence or no sentence at all that it changes things because then it's not really a voluntary choice. It becomes something you have to do to stay out of prison.
Castration itself only deals with one thing, the offender can no longer procreate and supposedly their testosterone levels go down and they turn into a regular citizen. It does not however address the reason they are behaving this way in the first place. The way I see it is castration will get rid of the tree but it won't get to the roots of the problem in the first place. Also, like every other bad decision society has made it is almost always motivated by fear. Fear that sex offenders will be running around on the streets terrorizing people. Society loves finding quick fixes and cures to any ills that might plague them and it seems that castration is just another idea to eliminate crime. I tend to side with the Constitution and what the Supreme Court has interpreted it as so we can avoid jumping to those quick fixes.
I disagree with Lawrence Wright's assessment of castration because there isn't any real evidence as to whether the recidivism rate drops or not. I think he has failed to take into account all of the sex crimes that go unreported each year. I also don't like how he says that the problem is physical not psychological. Most criminals had troubled childhoods, which is where I believe the problems start. I think it is unfair to say it is either one fully, but more likely a combination of the two. I like how he says that nothing we are doing with the offenders has made any real difference in their lives. This may be because jails now are basically a place to store people not to rehabilitate and maybe help them. If you want to see real change in the amount of recidivism rates you must first change the system and see if that will help. Cutting off the offender's testicles is not going to really do anything unless you have the counseling and therapy to back it up. However, I do agree with Wright when he says that we shouldn't make it a punishment. If we were to allow this at all it must be voluntary and it must be used as a therapy.
Does it sound ok? Look ok? Thanks!