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. 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. This essay 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. 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.
John F. Stinneford, Incapacitation Through Maiming: Chemical Castration, the Eighth Amendment, and the Denial of Human Dignity, 3 U. St. Thomas L. J. 559 (2006), available at http://scholarship.law.ufl.edu/facultypub/215