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The Eighth Amendment's ban on cruel and unusual punishment was intended to prohibit inhume penalties like quartering, severing limbs, burning at the stake, and castration. But Alabama has made one of those a condition for parole.
The state's governor, Kay Ivey, just signed a bill into law that would require individuals convicted of a sex offense against a child under the age of 13 to begin chemical castration a month before being released from custody, and continue the treatment until a judge deems it no longer necessary. So how does this castration law square with the Constitution?
"To have the state impose mandatory standards of behavior toward other people is one thing; to forcibly regulate someone's internal sex drive is another," writes the Atlantic's James Hamblin. The idea behind castration is that it leads to a lower libido and therefore less recidivism among sex offenders. But, as Hamblin points out, the science behind that belief is varied. "Most research in the area puts sexual desire low on the list of reasons people assault children, he notes. "The best predictor of sexual assault is not libido, research has shown, but 'an early and persistent general propensity to act in an antisocial manner during childhood and adolescence.'"
Additionally, while surgical castration has been proven to make people unwilling or physically unable to commit sex offenses, according to Hamblin, scientific evidence regarding the effects of chemical castration is not as definitive. And the questionable efficacy of chemical castration could impact whether it is considered cruel and unusual punishment under the Eighth Amendment. As Supreme Court Justice William Brennan wrote:
"[I]f a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes." (Emphasis added.)
Shackling the Mind and Crippling the Body
California, Florida, Georgia, Iowa, Louisiana, Montana, Oregon, Texas, and Wisconsin also have some form of chemical castration law on the books, and, thus far, the Supreme Court has remained silent on the matter. Law professor John Stinneford argues that chemical castration would constitute cruel and unusual punishment based on the Court's prior rulings, and because "chemical castration is designed both to shackle the mind and painfully cripple the body of sex offenders."
But until the Supreme Court steps in, it appears that chemical castration laws like Alabama's (which also requires offenders to pay for the treatment) will stand.