SCHOOL OF LAW
Legal Studies Research Paper Series

INCAPACITATION THROUGH MAIMING:
CHEMICAL CASTRATION, THE EIGHTH
AMENDMENT, AND THE DENIAL OF HUMAN
DIGNITY
University of St. Thomas Law Journal (forthcoming 2006)

John F. Stinneford
Visiting Professor
University of St. Thomas School of Law
Legal Studies Research Paper No. 06-25

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Incapacitation through Maiming: Chemical Castration, the
Eighth Amendment, and the Denial of Human Dignity
John F. Stinneford∗
There are limits to the extent to which a legislatively represented majority may conduct
biological experiments at the expense of the dignity and personality and natural powers
of a minority--even those who have been guilty of what the majority define as crimes.1
To be ‘cured’ against one’s will and cured of states which we may not regard as disease
is to be put on a level with those who have not yet reached the age of reason or those who
never will; to be classed with infants, imbeciles and domestic animals.2
INTRODUCTION
In 1642, during his imprisonment for presenting a royalist petition to the rebellious House
of Commons, the cavalier poet Richard Lovelace wrote the following, now-famous lines:
Stone walls do not a prison make,
Nor iron bars a cage;
Minds innocent and quiet take
That for an hermitage;
If I have freedom in my love
And in my soul am free,
Angels alone, that soar above,
Enjoy such liberty.3
These words have achieved lasting fame because they embody the concept of individual dignity
and freedom in the face of state coercion. Even when locked in a room, with no possessions, no
privacy and no freedom to come and go as one pleases, Lovelace claims, the prisoner retains a
more fundamental kind of liberty: freedom of “mind,” of “soul” and of “love.” That is to say,
the prisoner remains a person, endowed with reason and free will, and the capacity to think, to
desire and to make choices – even though the scope of the prisoner’s choices is necessarily
constrained by his external circumstances. Because the prisoner still possesses the fundamental

∗

Visiting Professor of Law, University of St. Thomas School of Law, Minneapolis, Minnesota. I would like to
thank Andrew Leipold, James Jacobs, Richard Garnett, John Breen, Robert Araujo, S.J, and the participants in a
faculty symposium at the University of St. Thomas School of Law for their helpful comments on earlier versions of
this paper. Many of this essay’s virtues belong to them, and all of its faults belong to me.
1
Skinner v. State of Okl. ex rel. Williamson, 316 U.S. 535, 546, 62 S.Ct. 1110, 1116 (1942) (Jackson, J.,
concurring).
2
C.S. LEWIS, The Humanitarian Theory of Punishment, in GOD IN THE DOCK: ESSAYS ON THEOLOGY AND ETHICS
292 (Walter Hooper ed., William B. Eerdman’s Publishing Company 1970).
3
Richard Lovelace, To Althea: From Prison, in THE OXFORD BOOK OF ENGLISH VERSE: 1250–1900 (Arthur QuillerCouch, ed. 1919).

1

capacity for thought and free choice that likens mankind to the “Angels . . . that soar above,” he
retains the dignity and personhood that are essential to human happiness.4
But what if this situation were reversed? What if the state could imprison the offender’s
mind rather than his body? What if it could use medical technology to destroy the offender’s
capacity to think certain undesirable thoughts, or to undertake certain undesirable actions? Such
a prisoner would be free, in the sense that he would no longer be surrounded by “stone walls” or
“iron bars;” but in a deeper sense, he would be enslaved, for the state would have transformed
the “hermitage” of his mind into a prison.
This is, of course, the stuff of science fiction. Numerous works – including, for example,
1984,5 BRAVE NEW WORLD6 and A CLOCKWORK ORANGE7 – imagine a dystopian future in which
the state seeks to control the minds of its citizens in order to ensure social order.
Unfortunately, this is also the stuff of present-day reality. This year marks the tenth
anniversary of California’s enactment of the nation’s first chemical castration law.8 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).9 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.10
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.11 The procedure also carries severe side effects,
including drastic reduction in sperm count, irreversible loss of bone mass, diabetes mellitus,
pulmonory embolism and depression, to name but a few.12
When California’s chemical castration statute was enacted, it was widely predicted that
the law would be quickly struck down as an obvious example of cruel and unusual punishment.13
4

It is tempting to dismiss Lovelace’s claims about the human dignity of the prisoner as the romantic musings of a
poet whose imprisonment was neither very harsh nor very long. Tellingly, however, precisely the same claims were
made by Holocaust survivor Viktor Frankl in his description of life in a Nazi concentration camp: “We who lived in
concentration camps can remember the men who walked through the huts comforting others, giving away their last
piece of bread. They may have been few in number, but they offer sufficient proof that everything can be taken
from a man but one thing: the last of the human freedoms – to choose one’s attitude in any given set of
circumstances, to choose one’s own way.” VIKTOR E. FRANKL, MAN’S SEARCH FOR MEANING (New York: Simon &
Schuster 1984) at 75.
5
GEORGE ORWELL, 1984 (Knopf 1992).
6
ALDOUS HUXLEY, BRAVE NEW WORLD (Perennial Classics 1998).
7
ANTHONY BURGESS, A CLOCKWORK ORANGE (W.W. Norton 1987).
8
Cal. Pen. Code § 645.
9
Id. See also discussion infra Part II.B.1.
10
See infra Part I.C.
11
See id.
12
See id.
13
For examples of the debate surrounding California’s chemical castration law in the aftermath of its enactment, see,
e.g., Kathryn L. Smith, Making Pedophiles Take Their Medicine: California's Chemical Castration Law, 17 Buff.
Pub. Int. L.J. 123 (1998-1999); John S. Murray, California's Chemical Castration Law: A Model For
Massachusetts?, 24 New Eng. J. on Crim. & Civ. Confinement 731 (1998); Philip J. Henderson, Section 645 of The
California Penal Code: California's "Chemical Castration" Law-A Panacea Or Cruel And Unusual Punishment?,

2

But this law has not been struck down. Rather, over the past ten years, six additional states have
enacted chemical castration laws.14 There is little evidence that these laws have even been
seriously challenged, much less overturned.15 Moreover, we are currently facing a new wave of
legislative efforts to impose chemical or surgical castration as a condition for sex offenders’

32 U.S.F. L. Rev. 653 (1998); Lisa MacGillivray, California's Mandatory Chemical Castration Program for Repeat
Sex Offenders: An Analysis of The Legislation Under German and American Constitutional Law, 21 Suffolk
Transnat'l L. Rev. 143 (1997); Kay-Frances Brody, A Constitutional Analysis Of California's Chemical Castration
Statute, 7 Temp. Pol. & Civ. Rts. L. Rev. 141 (1997); Avital Stadler, California Injects New Life Into an Old Idea:
Taking a Shot at Recidivism, Chemical Castration, and the Constitution, 46 Emory L.J. 1285 (1997); Raymond A.
Lombardo, California's Unconstitutional Punishment for Heinous Crimes: Chemical Castration of Sexual
Offenders, 65 Fordham L. Rev. 2611 (1997); Peter J. Gimino III, Mandatory Chemical Castration for Perpetrators
of Sex Offenses Against Children: Following California's Lead, 25 Pepp. L. Rev. 67 (1997); Mark J. Neach,
California Is on the "Cutting Edge": Hormonal Therapy (a.k.a "Chemical Castration") Is Mandated for Two-Time
Child Molesters, 14 T.M. Cooley L. Rev. 351 (1997); Kris W. Druhm, A Welcome Return to Draconia: California
Penal Law § 645, The Castration of Sex Offenders and the Constitution, 61 Alb. L. Rev. 285 (1997).
14
See infra Part II.B. The additional states are Florida, Iowa, Louisiana, Montana, Oregon and Wisconsin. Georgia
also enacted a chemical castration law, but repealed it this year for unspecified policy reasons. Finally, Texas
permits sex offenders to petition for surgical castration under highly circumscribed conditions.
15
The case law regarding chemical castration is exceedingly sparse. See Jackson v. State, 907 So.2d 696 (Fla.App.
4 Dist.,2005) (chemical castration order reversed because trial court failed to meet statutory requirement that review
by medical expert occur within 60 days of sentence); People v. Steele, 2004 WL 2897955, *2 (Cal. App. 3d Dist.
2004) (finding that defendant had waived constitutional challenge to chemical castration by failing to raise issue in
the trial court, but noting evidence of an “emerging” societal consensus in favor of chemical castration that might
shield the procecure from Eighth Amendment challenge); Houston v. State, 852 So.2d 425, 428 (Fla. App. 5th Dist.
2003) (chemical castration order reversed because court failed to meet statutory requirement that it appoint medical
expert and specify duration of treatment); People v. Foster, 101 Cal.App.4th 247, 249, 124 Cal.Rptr.2d 22, 23 (Cal.
App. 4th Dist. 2002) (defendant who signed plea agreement waived right to challenge constitutionality of chemical
castration sentence); cf. Bruno v. State, 837 So.2d 521, 522 (Fla. App. 1st Dist. 2003) (plea agreement whereby
defendant agreed to reduced sentence in exchange for undergoing surgical castration was illegal because no Florida
statute authorized the imposition of surgical or chemical castration for the crime of lewd and lascivious conduct). As
noted above, however, there has been considerable scholarly debate regarding the wisdom, morality and/or
constitutionality of the chemical castration laws. See sources cited supra n. 13. See also Caroline M. Wong,
Chemical Castration: Oregon's Innovative Approach To Sex Offender Rehabilitation, or Unconstitutional
Punishment?, 80 Or. L. Rev. 267 (2001); Lisa Keesling, Practicing Medicine without a License: Legislative
Attempts to Mandate Chemical Castration for Repeat Sex Offenders, 32 J. Marshall L. Rev. 381 (1999); Larry Helm
Spalding, Florida’s 1997 Chemical Castration Law: A Return to the Dark Ages 25 Fla. St. U. L. Rev. 117 (1998);
Linda Beckman, Chemical Castration: Constitutional Issues Of Due Process, Equal Protection, and Cruel and
Unusual Punishment 100 W. Va. L. Rev. 853 (1998); Bryan Keene, Chemical Castration: An Analysis Of Florida's
New "Cutting-Edge" Policy Towards Sex Criminals, 49 Fla. L. Rev. 803 (1997); Jennifer M. Bund, Did You Say
Chemical Castration?, 59 U. Pitt. L. Rev. 157 (1997); Jodi Berlin, Chemical Castration Of Sex Offenders: "A Shot
In The Arm" Towards Rehabilitation, 19 Whittier L. Rev. 169 (1997); G.L. Stelzer, Chemical Castration and the
Right to Generate Ideas: Does the First Amendment Protect the Fantasies of Convicted Pedophiles?, 81 Minn. L.
Rev. 1675 (1997); Kimberly Peters, Chemical Castration: An Alternative to Incarceration, 31 Duq. L. Rev. 307
(1993); Edward A. Fitzgerald, Chemical Castration: MPA Treatment of the Sexual Offender, 18 Am. J. Crim. L. 1
(1990); William Green, Depo-Provera, Castration, and the Probation of Rape Offenders: Statutory and
Constitutional Issues, 12 U. Dayton L. Rev. 1 (1986). There has also been debate regarding the morality, wisdom
and constitutionality of using surgical castration to render sex offenders less dangerous. See J. Michael Bailey &
Aaron S. Greenberg, The Science and Ethics of Castration: Lessons from the Morse Case, 92 Nw. U. L. Rev. 1225
(1998); Stacy Russell, Castration of Repeat Sexual Offenders: An International Comparative Analysis, 19 Hous. J.
Int’l. L. 425 (1997); Kari A. Vanderzyl, Castration as an Alternative to Incarceration: An Impotent Approach to the
Punishment of Sex Offenders, 15 N. Ill. U. L. Rev. 107 (1994).

3

release from prison.16 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.17
Why is this? No doubt, a variety of factors have contributed to the surprising longevity
of the chemical castration laws. Since most criminal cases are resolved by plea bargain,
relatively few prisoners sentenced to chemical castration have a right to appeal.18 Moreover, in
at least some states, the chemical castration laws have been inconsistently enforced, further
reducing the pool of prisoners who have standing to challenge the laws.19 Finally, where
challenges have occurred, the courts appear to have been able to resolve them on nonconstitutional grounds.20
Part of the problem, however, may lay in the Eighth Amendment itself – or at least in the
way it has been interpreted by the Supreme Court. Although the Court has expended
considerable energy determining the circumstances under which a state may constitutionally
administer the death penalty, it has only rarely had to consider whether a sentence that falls short
of death constitutes inherently cruel punishment.21 Indeed, the Court has not declared a noncapital sentence to be inherently cruel since it decided Trop v. Dulles22 almost sixty years ago.
Moreover, the principles the Supreme Court has adopted for determining whether a
punishment is inherently cruel stand in great tension with each other. The Court has identified
the following questions as being key to a determination of whether a punishment is inherently
cruel: (1) Whether it violates the “dignity of man,” which is the “basic concept underlying the
Eighth Amendment;” 23 (2) Whether it violates “evolving standards of decency;”24 (3) Whether it
16

See infra Part II.C.
See infra Part II.C.
18
As of 2002, 95% of state court felony convictions were obtained by guilty plea. See UNITED STATES
DEPARTMENT OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS, Table
5.46.2002 (Felony Convictions in State Courts, by Offense and Method of Conviction, United States, 2002),
http://www.albany.edu/sourcebook/pdf/t5462002.pdf. See also People v. Foster, 101 Cal.App.4th 247, 249, 124
Cal.Rptr.2d 22, 23 (Cal. App. 4th Dist. 2002) (defendant waived right to challenge constitutionality by signing plea
agreement in which he acknowledged that chemical castration was a possible sentence, and agreed to waive right to
appeal conviction and sentence generally).
17

19

See discussion infra Part II.C.1.
See cases cited supra note 16.
21
A punishment can be “cruel and unusual,” even if it is not inherently cruel, if it is either grossly disproportionate
to the offense, see Coker v. Georgia, 433 U.S. 584, 592 (1977) (“[A] sentence of death is grossly disproportionate
and excessive punishment for the crime of rape.”), or is an impermissible punishment based on status rather than the
commission of a criminal act. See Robinson v. California, 370 U.S. 660 (1962). Neither of these types of cruel and
unusual punishment is directly relevant to the present discussion.
22
356 U.S. 86 (1958).
23
See Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion) (“The basic concept underlying the Eighth
Amendment is nothing less than the dignity of man.”). See also Roper v. Simmons, 543 U.S. 551, 560 (2005) (“By
protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to
respect the dignity of all persons.”); Overton v. Bazzetta, 539 U.S. 126, 138 (2003) (“[I]t remains true that the
‘restraints and the punishment which a criminal conviction entails do not place the citizen beyond the ethical
tradition that accords respect to the dignity and intrinsic worth of every individual.’”) (internal citations omitted);
Hope v. Pelzer, 536 U.S. 730, 738 (2002); Atkins v. Virginia, 536 U.S. 304, 311 (2002); Hudson v. McMillian, 503
U.S. 1, 11 (1992); McCleskey v. Kemp, 481 U.S. 279, 300 (1987); Hutto v. Finney, 437 U.S. 678, 685 (1978); Estelle
v. Gamble, 429 U.S. 97, 102 (1976); Gregg v. Georgia, 428 U.S. 153, 173 (1976); Furman v. Georgia, 408 U.S.
238, 270 (1972) (Brennan, J., concurring). Cf. Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality
20

4

involves the “unnecessary and wanton infliction of pain”25 – that is, pain that completely fails to
further either retributive, deterrent, incapacitative or rehabilitative goals;26 and (4) Whether it
involves “torture” or “barbarous” methods of punishment, such as drawing and quartering,
burning at the stake, or castration.27
The Supreme Court has given very little guidance as to how these principles are supposed
to relate to each other, and therefore, it is not entirely clear how a court would rule if it had to
decide an Eighth Amendment challenge to the chemical castration laws. 28 Are “human dignity”
and contemporary “standards of decency” independent values, or does human dignity simply
mean “whatever is acceptable by contemporary standards”?29 Similarly, are “barbarous”
opinion) (“[I]n capital cases the fundamental respect for humanity underlying the Eighth Amendment requires
consideration of the character and record of the individual offender and the circumstances of the particular offense
as a constitutionally indispensable part of the process of inflicting the penalty of death.”)
24
Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion). See also, e.g., Roper v. Simmons, 543 U.S. 551, 561
(2005).
25
Gregg v. Georgia, 428 U.S. 153, 173 (1976).
26
See Hope v. Pelzer, 536 U.S. 730, 737 (2002) (“unnecessary and wanton infliction of pain” means pain inflicted
“totally without penological justification.”); Ewing v. California, 538 U.S. 11, 25 (2003) (states are free to choose
their own penological justification, including “incapacitation, deterrence, retribution, or rehabilitation.”) (quoting
Harmelin v. Michigan, 501 U.S. 957, 999 (1991)(Kennedy, J., concurring in part and concurring in judgment)).
27
See, e.g., Gregg v. Georgia, 428 U.S. 153, 169 (1976) (citing Anthony Granucci, “Nor Cruel and Unusual
Punishments Inflicted:” The Original Meaning, 57 Calif.L.Rev. 839, 852-853 (1969)); Wilkerson v. State of Utah,
99 U.S. 130, 135 (1878) (citing drawing and quartering and burning at the stake as examples of impermissibly cruel
punishment); Weems v. United States, 217 U.S. 349, 377 (1910) (citing castration as an example of inherently cruel
punishment).
28
The relative lack of coherence in the Supreme Court’s Eighth Amendment jurisprudence has led to a remarkable
level of instability and unpredictability in its case law. For example, in 1980, the Court upheld a recidivist statute
that caused a life sentence to be imposed on a small-time offender convicted of his third offense, Rummel v. Estelle,
445 U.S. 263 (1980), then struck down, in 1983, a life sentence for a similar offender under a similar recidivist
statute, Solem v. Helm, 463 U.S. 277 (1983), then upheld, in 2003, a sentence of 25 years to life for a similar
offender under California’s “three strikes” law. Ewing v. California, 538 U.S. 11 (2003). Similarly, the Court held,
in 1989, that it did not violate the Eighth Amendment to execute a mentally retarded person convicted of murder,
Penry v. Lynaugh, 492 U.S. 302 (1989), or a minor over the age of 15. Stanford v. Kentucky, 492 U.S. 361 (1989).
Both of these decisions were overruled less than 16 years later. See Atkins v. Virginia, 536 U.S. 304 (2002) and
Roper v. Simmons, 543 U.S. 551 (2005).
29
The relationship between “human dignity” and “evolving standards of decency” appears to have changed
significantly since these principles were first announced. In Trop v. Dulles, the Supreme Court announced both that
the “dignity of man” is the essential foundation of the the Eighth Amendment, and that the Eighth Amendment
should be interpreted in accordance with “evolving standards of decency” – but it did not directly tie these two ideas
together. See Trop v. Dulles, 356 U.S. 86, 100-101 (1958). The Supreme Court initially treated these two concepts
as separate criteria for determining the constitutionality of a given punishment. For example, in Gregg v. Georgia,
428 U.S. 153, 173 (1976), the plurality held: “public perceptions of standards of decency with respect to criminal
sanctions are not conclusive. A penalty also must accord with ‘the dignity of man,’ which is the ‘basic concept
underlying the Eighth Amendment.’” More recently, however, the Supreme Court has tended to write as though the
requirements of human dignity are synonymous with contemporary public “standards of decency.” See, e.g., Atkins
v. Virginia, 536 U.S. 304, 311-312 (2002). Justice O’Connor has, perhaps unconsciously, provided the most
succinct illustration of the contemporary Court’s conflation of these two concepts, by referring to our country’s
“evolving understanding of human dignity.” Roper v. Simmons, 543 U.S. 551, 605 (2005) (O’Connor, J.,
dissenting). The potential practical consequences of the Court’s movement from the Trop/Gregg approach to the
contemporary approach are enormous. The Trop/Gregg approach implies that, at a minimum, human dignity
provides an Eighth Amendment baseline to protect offenders if public opinion should take a turn toward the harsh
and the cruel. Under the contemporary approach, by contrast, the term “human dignity” has no apparent
independent meaning. It is whatever public opinion says it is. Such an approach provides little protection when

5

punishments (such as torture) always unacceptable, or do they only become unacceptable if they
completely fail to further any penological goal? The answer to these questions will largely
determine whether the chemical castration laws ultimately stand or fall. As the discussion in Part
III, below, will demonstrate, chemical castration is a form of punishment that clearly denies the
basic human dignity of sex offenders. Given the great public hatred of sex offenders, however, it
is less clear that this punishment violates contemporary “standards of decency.”30 Similarly, as
will be shown below, chemical castration is highly similar to the quintessentially “barbarous”
punishment, physical castration. But like other barbarous forms of punishment, it may also be
effective in furthering penological goals, such as deterrence and incapacitation.31
The essay that follows 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.” The word “cruel” is generally
taken to mean “indifference to or pleasure in another's distress.”32 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 person
punished 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.
This definition of the word “cruel” clarifies that human dignity must be the primary
focus of our analysis of the “cruel and unusual punishments” clause. Nonconformity with current
standards of decency, or failure to further a penological purpose, may serve as evidence that a
given punishment is unacceptably cruel. Similarly, a punishment’s likeness to a “barbarous”
form of punishment may help us determine whether it violates the Eighth Amendment. But the
key question is whether the punishment treats the offender in a manner that accords with the
dignity of the human person.

current notions of human dignity become debased, and the public becomes more willing to subject offenders to
dehumanizing punishments, such as chemical or surgical castration.
30
In People v. Steele, 2004 WL 2897955, *2 (Cal. App. 3d Dist. 2004), the appellate court stated that it might
uphold an Eighth Amendment challenge to California’s chemical castration law on the ground that a “societal
consensus” had emerged in favor of this mode of punishment. Ultimately, however, the Court declined to reach the
constitutional issue because the defendant had waived it.
31
See discussion infra Part I.C. There is fairly strong evidence that surgical castration will reduce recidivism rates,
but it is much less clear that this principle holds true for chemical castration. Specifically, as discussed below,
chemical castration imposes severe side effects on sex offenders, which lead, in turn, to high drop-out rates. Once
an offender stops receiving MPA treatment, the sex drive appears to return, and the offender becomes dangerous
once again. Although the wisdom of utilizing chemical castration to protect public safety is beyond the scope of this
essay, it seems at least arguable that chemical castration laws may harm public safety by lulling the public into a
false sense of security with respect to sex offenders who have been released on the condition that they be chemically
castrated. For a bizarre and tragic example of the public safety problem this creates, see infra n. ___.
32
Oxford English Dictionary (Second Ed. 1989).

6

This question, in turn, requires us to focus on the fundamental difference between
persons and things.33 Persons differ from things in at least two ways. First, as the quote from
Richard Lovelace, above, indicates, a person generally possesses a measure of reason and free
will,34 an interior realm of freedom that is beyond the reach of the state. Second, a person has a
claim to our concern as fellow-persons, and has a right to be treated as an end in herself.35 A
thing has no claim to our concern, and may be used exclusively for the purposes of others.36
If the Eighth Amendment stands for the proposition that offenders must be treated as
persons rather than things, this implies that punishment must satisfy at least two requirements to
be constitutional: First, it must not be designed to control or negate the interior capacities of the
defendant considered most integral to human dignity, such as reason and free will. Second, it
must not impose conditions that treat the offender’s suffering as either a matter of indifference,
or something to be enjoyed. Harsh punishment may comport with human dignity, so long as the
harshness does not exceed the offender’s actual desert. But punishment that assaults the very
personality of the offender, or treats the offender’s suffering as an unimportant (or even
desirable) thing in and of itself, violates the Eighth Amendment because it denies the inherent
dignity and personhood of the offender.37
Chemical castration fails to meet both of these requirements.
First, the very purpose of chemical castration is to exert control over the mind of the
offender by drastically reducing the brain’s exposure to testosterone, a hormone which is
considered crucial to the “regulation of sexuality, aggression, cognition, emotion and
33

The moral distinction between persons and things has been most famously described by Immanuel Kant: "Beings
whose existence depends not on our will but on nature's, have nevertheless, if they are irrational beings, only a
relative value as means, and are therefore called things; rational beings, on the contrary, are called persons, because
their very nature points them out as ends in themselves." Immanuel Kant, Fundamental Principles of the
Metaphysics of Morals, in Basic Writings of Kant 144, 185-186 (Allen W. Wood ed., 2001).
34
Id.
35
Id.
36
Id.
37
See discussion infra Part III.A. Although the current essay does not concern capital punishment, it is impossible
to discuss the “human dignity” standard without at least briefly considering its applicability to the death penalty.
Justice Brennan, both in his concurrence in Furman v. Georgia, and in numerous subsequent dissents, strongly
voiced the opinion that the death penalty is so violative of human dignity as to violate the Eighth Amendment.
Furman v. Georgia, 408 U.S. 238, 286 (1972) (Brennan, J., concurring). The Supreme Court rejected this view,
however, in Gregg v. Georgia, 428 U.S. 153. Although my purpose here is not to defend capital punishment, this
practice can be distinguished from chemical castration in at least two ways. First, unlike chemical castration, capital
punishment does not treat the suffering of the offender as a matter of indifference. The Supreme Court has always
held that it is impermissible for the state to draw out the length or the painfulness of an offender’s execution. See,
e.g., In re Kemmler, 136 U.S. 436, 447 (1890) (“Punishments are cruel when they involve torture or a lingering
death; but the punishment of death is not cruel within the meaning of that word as used in the constitution.”); cf. Hill
v. McDonough, __ U.S. __, 2006 WL 1584710 (2006) (permitting death row inmate to bring § 1983 suit challenging
state’s lethal injection procedure as an unduly painful method of execution). By contrast, as discussed in Part I.C,
infra, chemical castration imposes severe side effects, including depletion of bone mineral density, that may have
the effect of imposing a lingering, torturous death on the offender. Second, although capital punishment ends the
life of the offender, it does not permit the state to exert control over the inner workings of the offender’s brain and
body during her lifetime. The very purpose of chemical castration is to permit the state to exert such control. In
other words, the offender subjected to capital punishment continues to be “herself” up until the moment her life
ends; in a real sense, the offender subjected to chemical castration does not.

7

personality” in men and is “the major activator element of sexual desire, fantasies and
behavior.”38 The procedure is sometimes justified on the ground that some sex offenders are
pedophiles who experience deviant (and often unwanted) sexual desire for children, and that for
this group of offenders, chemical castration is a beneficial form of medical treatment. This
argument fails, however, because the vast majority of sex offenders covered by the chemical
castration laws do not have any sexual disorder, much less pedophilia.39 Many of these
offenders may be incorrigibly bad, dangerous or antisocial people, but they do not suffer from a
sexual sickness.40 Thus, subjecting them to chemical castration is not even arguably medically
appropriate. Rather, it merely replaces the “stone walls” and “iron bars” of a traditional prison
(where many sex offenders doubtless belong) with a less expensive but more degrading prison
for the mind.41
Second, chemical castration constitutes a profound physical assault on sex offenders. By
pumping massive doses of female hormones into a male body, this procedure subjects offenders
to severe physical effects, some of which appear quite likely to have painful, disabling and
possibly fatal long-term effects.42 To take the most troubling example, long term MPA treatment
depletes bone mineral density, so that offenders appear likely to experience osteoporosis and
multiple bone fractures as a result of their treatment.43 Thus, over the long term, chemical
castration will cease to be merely diabling, and may become something more like torture. The
choice of this extraordinarily harmful mode of punishment implies that the health and well-being
of sex offenders are simply not important.

38

Ariel Rösler and Eliezer Witztum, Pharmacotherapy of Paraphilias in the Next Millenium, 18 Behavioral Sci.
Law. 43, 45 (2000). The “mind control” aspect of chemical castration has also led some to question whether it
violates a First Amendment right to “mentation.” See, e.g., G.L. Stelzer, Chemical Castration and the Right to
Generate Ideas: Does the First Amendment Protect the Fantasies of Convicted Pedophiles?, 81 Minn. L. Rev. 1675
(1997).
39
See discussion infra, Part I.A.
40
See id.
41
Of course, the state has previously tried the coercive use of medical technology to control despised groups, and
not very long ago. Over the course of several decades during the twentieth century, tens of thousands of criminals
and persons with mental illnesses or deficiencies were “rehabilited” by means of involuntary sterilization. See, e.g.,
PHILIP R. REILLY, THE SURGICAL SOLUTION: A HISTORY OF INVOLUNTARY STERILIZATION IN THE UNITED STATES
94 (John Hopkins University Press 1991) (citing statistics indicating that between 1907 and 1963, more than sixty
thousand persons were sterilized under involuntary sterilization laws); Buck v. Bell, 274 U.S. 200 (1927) (upholding
law permitting involuntary sterilization of feebleminded individuals housed in state facilities, in order to prevent the
propagation of feebleminded offspring); Skinner, 316 U.S. 535 (striking down law providing for involuntary
sterilization of habitual criminals, to prevent them from propagating criminal offspring). Like the chemical
castration laws, the states’ use of lobotomies and sterilizations reflected a desire to control those whom society
despises, rather than treat them (and punish them, where appropriate) with justice and dignity. We now condemn
practices such as involuntary sterilization or lobotomization, because they did not truly rehabilitate their recipients,
but maimed them, robbing them of personal capacities such as the ability to procreate or to think and perceive
without unwanted impediments. For further information on the Eugenics movement and the sterilization laws, see,
e.g., DANIEL J. KEVLES, IN THE NAME OF EUGENICS: GENETICS AND THE USES OF HUMAN HEREDITY (Alfred A.
Knopf 1985); EDWARD J. LARSON, SEX RACE AND SCIENCE: EUGENICS IN THE DEEP SOUTH (Johns Hopkins
University Press 1995).
42
See discussion infra Part I.C.
43
See id.

8

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.
Part I of this essay will examine what we know, and do not know, about sex offenders,
recidivism and chemical castration. Part II will describe the political climate and purposes that
gave rise to the chemical castration laws, analyze their key provisions, and set forth the issues
that have surrounded attempts to implement these laws over the past ten years. Part III will
argue that chemical castration is an inherently cruel punishment that denies human dignity,
because it interferes with brain function in a manner that turns the brain itself into a kind of
prison, and because it subjects sex offenders to severe physical and mental harm.
I. SEX OFFENDERS AND CHEMICAL CASTRATION
A. What Do We Know about Sex Offenders?
The popular perception of the sex offender is that of the predatory pedophile, a man who
is driven by an uncontrollable lust for children, and who may victimize dozens (or even
hundreds) of children if not incapacitated.44 Such offenders do exist, and are exceedingly
dangerous.45 But this group comprises only a small (though highly publicized) percentage of the
whole.
Sex offenders are a highly heterogeneous group. Researchers have not been able to
create a consistent “offender profile,”46 nor identify a root cause that explains all (or even most)
sex offenses.47 Indeed, one group of researchers has recently observed that “our current
understanding is no more than the trivial recitation that offenders are created by both nature and
nurture.”48
Researchers are, however, increasingly coming to a consensus that the personal
characteristics of sex offenders, as a group, are similar to those of criminal offenders generally.49
Like other criminal offenders, many sex offenders have an “antisocial orientation” – that is, they
are impulsive, lack self-control, are oriented towards short-term rewards (despite long-term
44

See discussion infra Part II.A.
See, e.g., Barry M. Maletzky and Gary Field, The Biological Treatment of Dangerous Sexual Offenders, A Review
and Preliminary Report of the Oregon Pilot Depo-Provera Program, 8 Aggression and Violent Behavior 391, 392
(2003) (noting that a subgroup of sexual offenders “can be characterized by a predatory pattern; the creation of
multiple victims; the commission of more aggressive crimes; often, the presence of attraction to boys; and
frequently, the existence of central nervous system (CNS) dysfunction or psychiatric difficulties resulting in
deficient impulse control”).
46
Leam A. Craig, Kevin D. Browne, Ian Stringer and Anthony Beach, Sexual Recidivism: A Review of Static,
Dynamic and Actuarial Predictors, 11 J. Sexual Aggression 65, 79 (2005)(“[D]ue to the heterogeneous nature of
this group of offenders, there is no current consistent profile of the sex offender”).
47
Raymond M. Wood, Linda S. Grossman and Christopher G. Fichtner, Psychological Assessment, Treatment, and
Outcome with Sex Offenders, 18 Behav. Sci. Law 23, 26 (2000) (“[W]e do not have comprehensive etiological
theories regarding sexual offenses or sexual offenders.”).
48
Id. at 37.
49
Id. (research is beginning to indicate that “the more operative term in sex offender is ‘offender,’ and that theories
developed to explain general criminal behavior will increase our understanding of sexually criminal behavior.”)
45

9

negative consequences), have pro-offense attitudes, associate with other criminals, and lack
empathy for victims.50 Many sex offenders have alcohol or drug abuse problems.51 Indeed, the
recognized psychiatric disorder most common among sex offenders is “antisocial personality
disorder,” a condition characterized by “a pervasive pattern of disregard for, and violation of, the
rights of others that begins in childhood or early adolescence and continues into adulthood.”52
The possession of antisocial characteristics is strongly predictive, not just of sex offenses, but of
criminal conduct generally.53
Sex offenders who are convicted of victimizing children appear to be similarly
heterogeneous.54 For example, in a recent study of 142 convicted child molesters in Arizona,
only 8.5% were diagnosed with pedophilia.55 The most common personality disorder among this
group was antisocial personality disorder (12%).56 Nearly a quarter of the child molesters were
diagnosed as alcoholics (23.2%), and about 10% had drug abuse problems.57
B. What Do We Know About Sex Offender Recidivism?
It is difficult to measure recidivism with any precision, as offenders are unlikely to selfreport, and many offenses go undetected. Nonetheless, the data we have indicates that, as a
class, sex offenders are relatively unlikely to commit future sexual offenses, and actually pose a
greater risk of committing future non-sexual offenses. For example, according to two recent
meta-studies involving nearly 60,000 sex offenders, the sexual recidivism rate was between 13

50

See, e.g., Leonore M.J. Simon, An Examination of the Assumptions of Specialization, Mental Disorder and
Dangerousness in Sex Offenders, 18 Behav. Sci. Law 275, 295 (2000).
51
See id.
52
Am. Psychiatric Ass’n., Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) 645
(1994). See also Simon, supra note 49, at 294 (“Instead of possessing a mental disorder, the results suggest that
many child molesters may be antisocial. Consistent with the antisocial character of general offenders, convicted
child molesters are likely to possess substance abuse problems and varied nonsex criminal records.”)
53
See, e.g., Simon, supra note 49, at 277-78 (“[T]he majority of criminal offenders, including offenders who
commit sex crimes, meet at least some of the criteria for antisocial personality disorder, a chronic disorder that
rarely begins in adulthood and for which there exists no effective treatment.”); R. Karl Hanson and Kelly E. MortonBourgon, The Characteristics of Persistent Sexual Offenders: A Meta-Analysis of Recidivism Studies, 73 J.
Consulting and Clinical Psychology 1154, 1158 (2005) (“The major predictors of general (any) and violent
recidivism [among sex offenders] were variables related to antisocial orientation, such as antisocial personality,
antisocial traits, and a history of rule violation. These are the same risk factors that predict general and violent
recidivism among mentally disordered offenders. . . and unselected groups of offenders.”)
54
The precise prevalence of pedophilia among child molesters is difficult to determine because comprehensive
efforts to study this issue have been lacking. See T. Howard Stone, William J. Winslade, and Craig M. Klugman,
Sex Offenders, Sentencing Laws and Pharmaceutical Treatment: A Prescription for Failure, 18 Behav. Sci. Law 83,
87 (2000) (“[O]f the data that is collected, no insight is provided as to whether offenders are known to have a
pedophilia disorder: the criteria currently used to measure sex offenses involving children as victims or to base a
criminal conviction thereupon under state laws do not include such a finding.”)
55
Simon, supra note 49, at 289.
56
Id.
57
Id.

10

and 14% over a 5 year period.58 The non-sexual recidivism rate for the same group was over
36%.59
Although the general risk of sexual recidivism is relatively low, two factors are
associated with greatly increased risk: the presence of “deviant sexual interests,” or paraphilia,
and the presence of antisocial orientation.60
Deviant sexual interests have been described as “enduring attractions to sexual acts that
are illegal (e.g., sex with children, rape) or highly unusual (e.g., fetishism, autoerotic
asphyxia).”61 The American Psychiatric Association describes a condition involving such
enduring, deviant interests as paraphilia. To be diagnosed as a paraphiliac, the subject must
experience “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” and
that cause “clinically significant distress or impairment in social, occupational, or other
important areas of functioning.”62 With respect to child molestation, the form of paraphilia that
creates the greatest risk of recidivism is pedophilia, which is characterized by intense, recurrent
fantasies and urges concerning sex with pre-pubertal children.63
Sex crimes are, by their very nature, sexually deviant. But the commission of a sex
offense is not, in itself, sufficient to classify an offender as a paraphiliac.64 As noted above, the
data indicate that most child molesters and rapists are not, in fact, paraphiliacs.65 For nonparaphiliac offenders, the sex offense is a crime of opportunity rather than an expression of an
enduring preference for a deviant form of sexual conduct.
The second major risk factor, antisocial orientation, involves the general criminal
characteristics that many sex offenders share with criminals generally:
impulsivity,
unemployment, a history of substance abuse, a history of rule violation, pro-offense attitudes,
association with other criminals, etc.66 As noted above, when these characteristics are
58

See Hanson and Morton-Bourgon, supra note 52, at 1158 (2005) (13.7%); R.K. Hanson and M.T. Bussiere,
Predicting Relapse: A Meta-Analysis of Sexual Offender Recidivism Studies, 66 J. Consulting and Clinical
Psychology 348 (1998) (13.4%).
59
See Hanson and Morton-Bourgon, supra note 52, at 1158 (36.2%); Hanson & Bussiere, supra note 57, at 351
(36.3%). Cf. Simon, supra note 49, at 283. (“Among those researchers who measure versatility of offending,
though, there is a consensus that the pure sex offender is a rarity; instead, sex offenses are single or infrequent and
often are embedded in an extensive criminal history of property and violent crimes.”)
60
See, e.g., Hanson & Morton-Bourgon, supra note 52, at 1154; Craig, et al., supra note 45, at 79 (“A review of the
studies on sexual recidivism reveals a consistent pattern of prior criminal history, deviant sexual interests,
personality disorders and extrafamilial male victims as being positively associated with sexual recidivism.”)
61
Hanson & Morton-Bourgon, supra note 52, at 1154.
62
DSM-IV.
63
DSM-IV. See also Stone, et al., supra note 53, at 90.
64
Hanson & Morton-Bourgon, supra note 52, at 1154 (“Although all sexual offending is socially deviant, men who
commit such acts do not necessarily have enduring preferences for such behavior.”); Stone, et al., supra note 53, at
91 (“Nor would an incidence of child sexual abuse or a sex offense involving a child as a victim suffice to diagnose
a perpetrator as a pedophile.”)
65
See supra notes 53-56 and accompanying text.
66
Hanson & Morton-Bourgon, supra note 52, at 1154.

11

sufficiently strong and persistent, they are sometimes classified as “antisocial personality
disorder.”67
It appears that deviant sexual interests (i.e. paraphilia) and antisocial orientation are
independent risk factors. That is, each creates a risk of recidivism for reasons unrelated to the
risk posed by the other. Paraphiliacs are at high risk of reoffending because they have an
enduring sexual preference for illegal conduct (i.e. sex with children, sexual torture, etc.),
combined with compulsive fantasies and urges related to this illegal conduct.68 Persons with
antisocial orientations, on the other hand, pose a risk because of their general willingness to
violate the rights of others.69 They may not prefer to achieve sexual gratification through rape or
child molestation, but they are willing to do so if the opportunity arises.70
Of course, some offenders are both antisocial and paraphiliac. Such offenders appear to
pose a very great risk of recidivism.71
C. What Do We Know about Chemical Castration?
Medroxyprogesterone acetate (MPA) is a synthetic female hormone marketed under the
trade name Depo-Provera. MPA has been FDA-approved for use by women as a contraceptive,
and its manufacturer (Pfizer) has warned that the product “is indicated only for the prevention of
pregnancy.”72
The FDA has not approved MPA for use in men, for any purpose, because there have
been no long-term clinical trials that show it to be safe and effective for men.73 Nonetheless,
once a drug has been approved for a particular use, the Food, Drug and Cosmetic Act permits
doctors to prescribe it for unapproved uses as well.74 Thus, over the last several decades, a
number of doctors have studied using MPA as a kind of treatment for paraphiliacs.75 The typical
dosage for paraphiliacs ranges from 100 mg/week to 500 mg/week,76 whereas the recommended
67

See supra note 51 and accompanying text.
Hanson & Morton-Bourgon, supra note 52, at 1154.
69
Id.
70
Furthermore, studies indicate that the presence of sexual deviancy does not increase the risk of non-sexual
recidivism. See, e.g., id. at 1158.
71
Maletzky & Field, supra note 44, at 392.
72
Depo-Provera CI Label (Pfizer, Novermber 2004) (hereafter “FDA Label”) (located at
http://www.fda.gov/medwatch/SAFETY/2004/DepoProvera_Label.pdf).
73
See, e.g., Fabian M. Saleh and Fred S. Berlin, Sex Hormones, Neurotransmitters, and Psychopharmacological
Treatments in Men with Paraphilic Disorders, 12 J. Child Sexual Abuse 233, 240 (2003) (Noting that MPA and
similar hormone therapies “are not approved by the U.S. Food and Drug Administration” for suppressing male sex
drive because they have “not been adequately studied” in this context).
74
See Fitzgerald, supra note 16, at 6 n. 24 (“Under the Federal Food, Drug and Cosmetic Act, a manufacturer can
only label, promote, and advertise a drug for the uses which the drug has been proved to be safe and effective. This
requires the manufacturer to submit the drug for clinical trials, the results of which will be reviewed by the Food and
Drug Administration. Once a drug has been marketed, the Food, Drug and Cosmetic Act does not limit the manner
in which a doctor may present the drug. Such ‘unapproved’ or ‘unlabelled’ uses are reported in the scientific
journals and become part of accepted therapies. If the manufacturer is so inclined, he may then undergo the
requirements to have the drug approved for the new usage under 21 CF ch. 1, part 312 (4-1-88 edition).”)
75
Maletzky & Field, supra note 44, at 397-398.
76
Saleh & Berlin, supra note 71, at 242.
68

12

dosage for use as a female contraceptive is “150 mg . . . every 3 months (13 weeks).”77 In other
words, the dosage used to eliminate male sex drive is anywhere from 8.6 to 43.3 times the
recommended dose for use as a female contraceptive – a fact which is potentially significant in
light of MPA’s severe side effects (discussed below).
When used in men, MPA works as an antiandrogen that “reduces the production and
effects of testosterone.”78 Specifically, it reduces production of testosterone, inhibits the effect
of testosterone on the body and the brain, and causes testosterone to be metabolized (and thus
eliminated from the system) more quickly.79 The overall effect is to “reduce the level of
androgen in the blood stream to that of a prepubescent male.”80
MPA acts directly on the brain by drastically reducing its exposure to testosterone.81
Testosterone is considered crucial to the “regulation of sexuality, aggression, cognition, emotion
and personality,” and is “the major activator element of sexual desire, fantasies and behavior.”82
By reducing the brain’s exposure to testosterone, MPA suppresses “sexual fantasies, sexual
urges, and sexual drive,”83 and thus induces a state of “erotic apathy”84 It has the same effect on
“both deviant and non-deviant sexual behavior.”85
No one knows what causes a person to develop a paraphilic disorder such as pedophilia.86
It is fairly clear, however, that paraphiliacs do not have abnormal levels of testosterone.87
Nonetheless, because this disorder is characterized by recurrent, intense (and often unwanted)
thoughts and urges concerning sex with children, some have considered MPA-induced
suppression of testosterone to be a promising option for paraphiliacs. By disabling the sex drive,
MPA is supposed to provide the paraphiliac “relief from his compulsive fantasy. Formerly
insistent and commanding urges can be voluntarily controlled.”88 Once the compulsive fantasies
are eliminated, the thinking goes, the paraphiliac should be “more amenable to psychotherapy
that can enable him to adjust to a new lifestyle.”89
Prior research concerning surgical castration has given researchers reason to believe that
its chemical analogue would be effective. Like chemical castration, surgical removal of the
77

FDA Label, supra note 70 (Dosage and Administration).
Fitzgerald, supra note 16, at 2-3.
79
See Fitzgerald, supra note 16, at 6 (“MPA inhibits the release of the follicle-stimulating hormone and the
luteinizing hormone from the anterior pituitary gland in the brain. This results in a decrease in testosterone
production in the testicles. MPA interferes with the effects of the testosterone and accelerates the metabolism of
testosterone in the body.”) See also Saleh & Berlin, supra note 71, at 241.
80
Fitzgerald, supra note 16, at 6.
81
See id. (“MPA, like all progestinic hormones, acts directly on the brain.”)
82
Rösler & Witztum, supra note 37, at 45.
83
Stone, et al., supra note 53, at 96. See also Saleh & Berlin, supra note 71, at 241 (Asserting that MPA
“suppresses sexual drive and thereby reduces the intensity and frequency of deviant sexual urges and cravings.”)
84
Fitzgerald, supra note 16, at 7 (quoting P. Walker, W. Meyer, L. Emory, & A. Rubin, Antiandrogenic Treatment
of the Paraphilias, in GUIDELINES FOR THE USE OF PSYCHOTROPIC DRUGS 435 (1984)).
85
Stone, et al., supra note 53, at 96.
86
See Saleh and Berlin, supra note 71, at 234 (noting that “the etiology and pathophysiology of the paraphilias is
still under investigation.”)
87
Rösler & Witztum, supra note 37, at 45.
88
Fitzgerald, supra note 16, at 6-7.
89
Id.at 3.
78

13

testes has the effect of eliminating virtually all testosterone from the system, and thus disabling
the sex drive.90 During the Nazi era, the German government surgically castrated all sex
offenders convicted of certain crimes.91 A follow-up study of this group of offenders indicated a
recidivism rate of 2.3%.92 Similarly, in the 1970s, the Federal Republic of Germany permitted
sex offenders to agree to surgical castration in return for reduced sentences.93 An eleven-year
follow-up study was conducted on two groups of offenders: those who underwent the treatment,
and those who initially volunteered, but backed out.94 The recidivism rate for the castrated group
was 3%, as compared to 46% for the uncastrated group.95 Other European countries employed
surgical castration on sex offenders during the middle decades of the twentieth century, with
similar levels of success.96
Chemical castration via MPA seems to hold the promise of reducing recidivism to the
same extent as surgical castration, since it, too, drastically reduces testosterone levels. There is
some evidence that this is the case; for example some clinicians have reported that paraphiliacs
who underwent chemical castration reported a significant reduction in sexual fantasies and
sexual urges.97 But the data does not clearly indicate that these reductions translate into a longterm reduction in recidivism. Studies of the effect of chemical castration on paraphiliacs have
been largely characterized by small sample size, lack of controls, and short follow-up periods.98
Moreover, these studies have reported a wide variety of recidivism rates, ranging from 0% to
83%.99 Indeed, the preliminary report of results from Oregon’s program of mandatory chemical
castration has so far demonstrated no differences in recidivism between offenders who
underwent chemical castration and those who did not.100 Several studies have indicated that
cognitive-behavioral therapy is as effective as chemical castration in preventing recidivism.101

90

Bailey & Greenberg, supra note 16, at 1230.
Id. at 1232.
92
Id.
93
Id. at 1234.
94
Id.
95
Id.
96
See id. at 1230 (noting that twenty studies of surgically castrated sex offenders, which collectively covered
approximately 5000 offenders, indicated an average recidivism rate of 3%); Rösler & Witztum, supra note 37, at 43
(“Among a series of 11 reports from Denmark, Germany, Sweden, Norway, Holland, Switzerland and
Czechoslovakia, the mean recidivism rate for a total of 3589 castrated men was 2.2%”).
97
See Stone, et al., supra note 53, at 97 (Noting reported “reductions in waking-time preoccupation with sexual
fantasies, number of morning erections per week, number of ejaculations per week, plasma T levels, and frequency
of paraphilic behaviors.”)
98
See Maletzky & Field, supra note 44, at 398-400 (describing studies).
99
See id.; Rösler & Witztum, supra note 37, at 47 (noting that “[i]n a recent review that summarized 334 patients
from 11 studies recidivism during MPA treatment ranged from 3 to 83%, with a mean of 27%).
100
Maletzky & Field, supra note 44, at 406.
101
See, e.g., Gordon C. Nagayama Hall, Sexual Offender Recidivism Revisited: A Meta-Analysis of Recent
Treatment Studies, 63 J. Consulting and Clinical Psychology 802, 807 (1995) (noting that cognitive-behavioral
therapy and hormonal treatment programs – i.e., chemical castration – achieved a reduction in recidivism of
approximately 30%); Wood, et al., supra note 46, at 36 (summarizing results of several studies indicating similar
success rates for cognitive-behavioral therapy and hormonal therapy).
91

14

One reason that MPA’s effect on recidivism has been difficult to measure is that MPA
treatment programs have a high drop-out rate due to the severe side effects.102 Once a sex
offender ceases MPA treatment, sexual urges and fantasies – including deviant ones – appear to
return.103 Thus, all other things being equal, offenders who stop receiving MPA become just as
likely to reoffend as they were before the treatment.104
The most significant side effect of MPA treatment appears to be loss of bone mineral
density. On November 14, 2004, Pfizer added a “black box warning” to the drug label, stating
that prolonged use could result in a significant reduction in bone mineral density,105 a condition
that can lead to osteoporosis or bone fracture. The label further warns that “[b]one loss is greater
with increasing duration of use and may not be completely reversible.”106 Therefore, even when
being administered for its FDA-approved use as a contraceptive, Depo Provera should not be
used over the “long-term” – meaning more than two years – unless there is no other option.107
Other side effects of MPA treatment include “excessive weight gain, malaise, nightmares,
headaches, muscular cramps, dyspepsia, gallstones, diabetes mellitus . . . . [and] [p]ulmonary
embolism.”108 MPA treatment also results in testicular atrophy,109 and a dramatic reduction in
spontaneous erections and in sperm production.110 It is not clear that these side effects are all
102

Hall, supra note 99 at 807 (noting that the high drop-out rate for chemical castration programs may explain why
such programs are no more effective than cognitive-behavioral therapies).
103
Fitzgerald, supra note 16, at 7.
104
A bizarre and tragic case that occurred in the late 1990s illustrates the danger involved in ceasing MPA treatment.
In 1983, Joseph Frank Smith was convicted of twice raping the same woman in her home (he was caught during his
attempt to victimize her a third time). His crime receive great media attention, in part because his habit of
committing the crime wearing nothing but a ski mask had earned him the nick-name “the Ski Mask Rapist.” The
court sentenced him to 30 days in prison and 10 years of probation, during which period he was to be chemically
castrated. He moved to Virginia and started receiving treatment at Johns Hopkins. His initial response to the
treatment seemed so good that he was profiled on “60 Minutes.” But probation officials did not adequately monitor
his treatment, and did not object when he was discharged. After treatment ceased, he returned to his prior ways,
attempting to sodomize a five-year-old girl, and apparently peering or breaking into dozens of homes wearing
nothing but a bandanna (a habit that earned him the nickname “the Bandanna Bandit”). In perhaps the strangest
twist, Smith married the nurse who had administered his chemical castration shots, and had two daughters with her.
Smith was finally arrested when his wife caught him masturbating in the presence of his daughter and friend, both of
whom were asleep. See Craig Timberg, Rapist’s Life Stirs Doubt about Drug Treatment, WASH. POST, Dec. 6,
1998.
105
Black Box Warning Added Concerning Long Term Use of Depo-Provera Contraceptive Injection, FDA Talking
Paper T04-50 (November 17, 2004) (located at http://www.fda.gov/bbs/topics/ANSWERS/2004/ANS01325.html).
106
FDA Label, supra n. 70.
107
Id.
108
Rösler & Witztum, supra note 37, at 47. See also Saleh & Berlin, supra note 71, at 241 (“MPA can cause a
number of potentially serious and less serious adverse effects, including depressive symptoms, breast tenderness and
galactorrhea . . . weight gain—apparently secondarily to increased fat deposition . . . nausea, abdominal pain,
nightmares, hot flashes, acne, alopecia [hair loss], hirsutism, hyperglycemia, diabetes mellitus, gallstones . . .
hypogonadism, hypospermatogenesis, and hypertension.”); Stone, et al., supra note 53, at 97 (“Side effects include
weight gain, fatigue, depression, hot and cold flashes, elevated blood glucose, nausea and gynecomastia, and
reduction of spermatogenesis.”).
109
See Fitzgerald, supra note 16, at 6-7.
110

Saleh & Berlin, supra note 71, at 241 (noting that MPA “decreases spermatogenesis.”); Stone, et al., supra note
53, at 96 (chemical castration has the effect of “decreasing morning erections, ejaculation, and spermato-genesis.”);
Fitzgerald, supra note 16, at 6-7 (chemical castration results in “dramatic decrease in sperm count”).

15

reversible – particularly the loss of bone mineral density, which appears to be at least partly
irreversible.111 The long-term effects of MPA treatment on men are unknown.112
As with surgical castration, many doctors refuse to prescribe MPA for the purpose of
chemically castrating sex offenders, in part because of the severe side effects, and in part because
it is a chemical form of maiming.113 The American Medical Association opposes the procedure
where it is imposed by a judge as part of a criminal sentence, rather than prescribed by a
physician for the purpose of treating a diagnosed medical condition.114
II. CHEMICAL CASTRATION LAWS
A. The Politics of Castration
On September 17, 1996, Governor Pete Wilson of California signed the nation’s first
chemical castration law. As discussed more fully below, this law requires that certain sex
offenders undergo chemical castration via MPA or an equivalent anti-androgen. Governor
Wilson’s public statements during the signing ceremony revealed much about the politics and
purposes of this law. First, Wilson described sex offenders as an enemy with whom we are at
war: “I have a message for those skulking in the shadows. You better stay in the shadows or
leave this state, because we will not tolerate your conduct. . . . We are going to win this fight. We
are not going to concede one inch of any playground in any neighborhood to vicious
predators.”115 Later in the same ceremony, however, he described sex offenders as victims of an
illness: “Child molesters can't stop because they have a compulsion to do what they do. . . . And
as long as they have that urge, they'll keep on victimizing children -- unless we do something
about it.”116
The governor’s message reflects the dual nature of the public perception of sex offenders.
On the one hand, sex offenders are often portrayed as “vicious predators,” depraved criminals
who have no conscience, and who will not stop victimizing children until we make them stop.
On the other hand, they are often described as suffering from a compulsive sexual disorder such
as pedophilia. They may want to stop victimizing children, but they cannot resist their
compulsion to do so. Although these two views of sex offenders are in tension with each other,
they are often presented together, in a way that tends to reinforce the perception of sex offender
dangerousness. Evil people may be deterred by the threat of punishment, and sick people may
seek treatment for their illness. But those who, like sex offenders, seem to embody a kind of
“perfect storm” of illness and evil may seem beyond the reach of normal modes of punishment or
111

See FDA Label, supra note 70, black box warning (noting that at least some of the bone mineral density loss
experienced by women appeared to be irreversible).
112
Fitzgerald, supra note 16, at 9.
113
Maletzky & Field, supra note 44, at 399.
114
See American Medical Association, Council on Ethical and Judicial Affairs, Report 4-A-98, Court-Initiated
Medical Treatments in Criminal Cases. See also AMA Code of Medical Ethics E-2.065, Court-Initiated Medical
Treatmenst in Criminal Cases.
115
Wilson in Van Nuys to Sign Chemical Castration Bill for Child Molesters, City News Service, September 17,
1996.
116
Wilson Signs Chemical Castration Bill, United Press International, September 17, 1996.

16

treatment. The appeal of chemical castration, therefore, arises from its perceived ability to go
beyond the normal modes by simultaneously treating and punishing sex offenders, eliminating
their sexual compulsion while exacting a particularly severe kind of retribution.
Chemical castration seems to promise one further benefit, perhaps the most powerful of
all: It should incapacitate sex offenders, making them incapable of committing future sex
offenses. As was discussed above, the intended purpose and effect of chemical castration is to
eliminate the sex drive, drastically reducing the offender’s desire and capacity to engage in any
form of sexual activity. It matters not whether the offender has a sexual disorder, is an evil or
antisocial person, or has some combination of these qualities. Whatever his motivation,
chemical castration seems to promise to render him safe, and at considerably less expense than
housing him in a prison or secure mental health facility.117
B. Key Features of Chemical Castration Laws
1.

California-Style Statutes

California’s chemical castration law was both the first in the nation, and the model for
most of the chemical castration laws that followed it. Therefore, this article will start with the
California statute.
In California, one becomes eligible for chemical castration by committing (or aiding and
abetting another in committing) one of several forms of forcible or statutory rape upon a victim
who is 12 years old or younger.118 After a first offense, the court has discretion to order
chemical castration as a condition of parole;119 after a second offense, it becomes mandatory.120
Where a court orders chemical castration, California law requires the administration of
medroxyprogesterone acetate or its equivalent.121 As described above, this treatment has the
effect of virtually eliminating testosterone from the sex offender’s system. The treatment is to
start one week prior to the offender’s release from prison, and must continue “until the
Department of Corrections demonstrates to the Board of Prison Terms that this treatment is no
longer necessary.”122 There is no statutory requirement that a doctor (or any other medical
professional) determine the treatment to be medically appropriate, or even medically safe; nor is
there any requirement that the sex offender be diagnosed with a sexual disorder. There is no
informed consent requirement. Although the offender has the right to be informed of the effects
of the treatment, he does not have the right to refuse it.123 A patient can only escape an order for
chemical castration by undergoing a “permanent, surgical alternative” – i.e., surgical
castration.124
117

As noted above, given the lack of long-term studies and the high drop-out rate associated with chemical
castration, it is not clear that it actually can deliver on this promise.
118
Cal. Pen. Code § 645(a)-(c).
119
Cal. Pen. Code § 645(a).
120
Cal Pen. Code § 645(b).
121
Cal. Pen. Code § 645(a), (b).
122
Cal. Pen. Code § 645(d).
123
Cal. Pen. Code § 645 (f).
124
Cal. Pen. Code § 645 (e).

17

Four states – Florida, Iowa, Louisiana and Montana – have enacted chemical castration
laws modeled after California’s law.125 Like California, these states define eligibility for
chemical castration primarily in terms of the offense of conviction, victim age, and recidivism.
In all four states, as in California, the main criterion for determining eligibility for
chemical castration is conviction for a specified sex offense. Some statutes include a broad
range of offenses, and some are much more narrow. For example, Iowa permits chemical
castration for crimes ranging from indecent contact to sexual exploitation of a child,126 whereas
Florida permits chemical castration only for sexual battery.127
Three of the four states further limit eligibility for chemical castration to those whose
victim is below a certain age. Two states (Iowa, Louisiana) follow California in requiring that
the victim be 12 years old or younger,128 and one (Montana) requires that the victim be 15 years
old or younger.129
All of these states also give weight to recidivism. Florida and Iowa, like California, make
chemical castration mandatory after a second conviction for a specified sex offense.130 In
Montana and Louisiana, on the other hand, those offenders who receive a second conviction for a
specified sex offense become eligible for chemical castration even though their victims are
adults.131
In contrast to California, three of the four states require some kind of minimal medical
review before the treatment can be imposed.132 No statute, however, requires involvement of a
physician. Nor does any statute require that the sex offender be diagnosed with a sexual disorder
before undergoing chemical castration. Nor does any state require informed consent. Two states
(Louisiana and Montana) require that the offender be informed of the effects of the procedure,
but do not require consent.133 The other two states (Florida and Iowa) do not require that the
offender be informed of the effects of chemical castration; nor do they require consent.

125

See Fla. Stat. § 794.0235; Ga. Code Ann. § 16-6-4; Iowa Code § 903B.1; La. Stat. Ann. § 15:538; Mont. Code
Ann. § 45-5-512. As noted above, the state of Georgia also enacted a chemical castration law similar to
California’s, but the statute was amended in 2006 to remove all references to chemical castration. The legislative
staff working for the amendment’s sponsor has indicated that the removal of these provisions was based on a “policy
decision,” but has declined to provide the reasons for this decision.
126
Iowa Code § 903B.1(4).
127
Fl. Stat. Ann. § 794.0235.
128
Iowa Code § 903B.1(4).
129
Mont. Code Ann. § 45-5-512(1).
130
Fl. Stat. Ann. § 794.0235(1)(b); Iowa Code Ann. § 903B.1(1).
131
La. Stat. Ann. § 15:538(C)(1)(b); Mont. Code Ann. § 45-5-512(2).
132
Fl. Stat. Ann. § 794.0235(2)(a); Ga. Code Ann. § 16-6-4(d)(2); La. Stat. Ann. § 538(C)(1)(b); Mont. Code Ann. §
45-5-512. Iowa’s chemical castration law does not explicitly require medical review before imposition of chemical
castration as a condition of release, although it does provide for an “assessment” to determine whether chemical
castration would be “effective” before requiring a court to impose chemical castration after a second conviction.
Iowa Code Ann. § 903B.1(1).
133
La. Stat. Ann. § 538(C)(4); Mont. Code Ann. § 45-5-512(5).

18

All four states’ chemical castration laws require that the treatment begin shortly before
the offender is released from prison, and all imply that treatment should continue, in most cases,
for the life of the defendant. Florida permits the court to order the treatment to continue for any
period of time, up to and including the life of the defendant.134 Two states (Iowa and Montana)
follow California in providing that the treatment should continue until the state determines it is
no longer “necessary.”135 Only Louisiana, which provides that the treatment should continue
“during incarceration and any suspended sentence, probation, or parole, unless it is determined
that the treatment is no longer necessary,”136 appears to provide any mandatory temporal
limitation on the administration of MPA treatment. As discussed above, sexual drive and sexual
fantasies (including deviant drives and fantasies) appear to return shortly after MPA treatment
ceases; therefore, it is difficult to imagine a scenario in which the state, after deciding that an
offender needed chemical castration, would later decide that it was “no longer necessary.”
Therefore, in most cases, the offender will be subjected to a life term of chemical castration.
Three states (Florida, Iowa and Louisiana) follow California in permitting offenders to
avoid chemical castration by undergoing surgical castration.137
Finally, two states (Iowa and Louisiana) require the offender to pay the costs associated
with MPA treatment.138
2.

The Oregon Approach

In contrast to the California-style statutes, Oregon’s chemical castration law does not call
for imposition of this treatment as part of an offender’s sentence. Rather, the Oregon law calls
for the establishment of a “pilot program” for determining the efficacy of chemical castration in
preventing recidivism.139 Under this program, the Department of Corrections is supposed to
choose 40 to 50 persons to undergo “hormone or antiandrogen, such as medroxyprogesterone
acetate, treatment.”140
The statutory criteria for identifying candidates for this treatment are: (a) they must have
been convicted of a “sex crime;” (b) they must be within six months of release; and (c) the
Department of Corrections must determine that they are “most likely to benefit” from chemical
castration.141 After the candidates are selected, they are to be referred to a physician to make
sure chemical castration is not “medically contraindicated.”142 The candidates who make it
through this screening process are then required to undergo chemical castration as a mandatory
condition of parole or post-prison supervision.143 Although the offender has a right to be

134

Fl. Stat. Ann. § 794.0235(2)(a).
Iowa Code Ann. § 903B.1(5); Mont. Code Ann. § 45-5-512(4).
136
La. Rev. St. § 15:538(C)(3)(d).
137
Fl. Stat. Ann. § 794.0235(1)(b); Iowa Code Ann. § 903B.1(1); La. Stat. Ann. 15:538(C)(8).
138
Iowa Code Ann. § 903B.1(6); La. Rev. Stat. § 15:538(C)(5).
139
Or. Rev. Stat. § 144.625(1).
140
Id.
141
Or. Rev. Stat. § 144.625(2)(a)-(b).
142
Or. Rev. Stat. § 144.625(2)(c).
143
Or. Rev. Stat. § 144.625(3).
135

19

informed of the effects of the treatment, he does not have the right to withhold consent.144 The
offender must pay for the treatment himself,145 and must continue the treatment during “all or a
portion of parole or post-prison supervision.”146
3.

The Wisconsin Approach

The Wisconsin chemical castration law is much broader and more standardless than the
laws enacted in other states. It contains two basic components. First, it permits the department
of corrections and the parole commission to require that a “serious child sex offender” – that is, a
person who has been convicted of sexual assault on a child under the age of 13147 – undergo
chemical castration as a condition of probation or parole.148 Second, it requires that before a
court grants a petition for release from civil commitment under Wisconsin’s Sexually Violent
Persons Commitment Act, it must order the department of corrections to put together a treatment
plan that addresses the offender’s “need” for chemical castration after release.149 In both the
parole and the civil commitment settings, the decision to release must be made independently of
the decision to chemically castrate; that is, the fact that an offender is willing to be chemically
castrated, or is an appropriate candidate, should not be counted in his favor.150
4.

The Texas Approach (Voluntary Surgical Castration)

In stark contrast to the seven “chemical castration” states, Texas permits certain sex
offenders to obtain surgical castration on a purely voluntary basis.151 To be eligible for this
surgery, the defendant must meet all of the following criteria: (1) he must have been convicted
two times or more of indecency with a child, sexual assault of a child, or aggravated sexual
assault; (2) he must be at least 21 years old; (3) he must request the procedure in writing; (4) he
must admit to his crimes in writing; (5) he must receive evaluation and counseling from both a
psychiatrist and a psychologist, both of whom must have experience dealing with sex offenders;
(6) he must give written, informed consent; and (7) he must not have previously requested the
procedure and then withdrawn the request.152
As an added layer of protection, the inmate is also required to meet with an independent
monitor with expertise in mental health, law and ethics.153 The monitor is required to perform
two basic functions: (1) ensure that the inmate has received adequate information about the
orchiectomy, and provide him with supplemental information if necessary; and (2) determine
whether the inmate has been coerced into requesting the procedure, and advise him to withdraw
his request if the monitor believes he has been corced.154
144

Or. Rev. Stat. § 144.627(1)(a).
Or. Rev. Stat. § 144.629.
146
Or. Rev. Stat. § 144.625(3).
147
Wis. Stat. § 304.06(1q)(a).
148
Wis. Stat. § 304.06(1q)(b).
149
Wis. Stat. § 980.08(5).
150
Wis. Stat. §§ 304.06(1q)(c), 980.08(4)(c).
151
Tex. Govt. Code Ann. § 501.061.
152
Tex. Govt. Code Ann. § 501.061(a)(1)-(7).
153
Tex. Govt. Code Ann. § 501.061(a)(8), (f).
154
Tex. Govt. Code Ann. § 501.061(f).
145

20

Finally, the inmate is permitted to withdraw his request any time prior to surgery, but
may not renew the request once it has been withdrawn.155
The Texas statute does not provide any benefit to the inmate, such as early release, as a
quid pro quo for undergoing surgical castration. Moreover, judges and the parole panel are
specifically forbidden from requiring a sex offender to undergo an orchiectomy as a condition of
community supervision or parole.156
C. Implementation and Continuing Politics
1.

Implementation Issues – Florida and Oregon

Information concerning attempts to implement the chemical castration statutes appears to
be available only for Florida and Oregon. The experience of those two states, however, indicates
a number of serious difficulties associated with the imposition of chemical castration sentences.
As of April 2005, less than 10% of the Florida sex offenders who were statutorily
required to receive sentences of chemical castration had actually received such sentences, largely
because many judges and lawmakers are not aware of the existence of the chemical castration
law.157 Florida courts have also had significant difficulty in complying with statutory
requirements for imposing sentences under this law.158
The Florida experience has revealed a number of issues relating to the medical review
required under most chemical castration statutes. As noted above, Florida law requires that a
“court appointed medical expert” determine, within 60 days of sentencing, that the defendant “is
an appropriate candidate for treatment.”159 Jackson v. State of Florida160 is the only reported
case that provides a description of this “medical review” in practice. In that case, the Florida
Department of Corrections faxed to the sentencing court a document indicating that “a medical
examination” of defendant indicated that the defendant “‘had no symptoms or problems’ relative
to” chemical castration.161 On the basis of this document, the court ordered the defendant to
undergo chemical castration after serving concurrent sentences of life imprisonment and fifteen

155

Tex. Govt. Code Ann. § 501.061(b).
Tex. Govt. Code Ann. § 508.226; Tex. Crim. Proc. Code Art. 42.12 Sec. 11(f).
157
Larry Keller, Chemical Procedure for Sex Offender Weighed, PALM BEACH POST (August 30, 2005) (describing
conclusions of Florida Department of Corrections report discussing enforcement of chemical castration laws).
158
See Houston v. State, 852 So.2d 425 (Fla. App. 5th Dist. 2003) (overturning chemical castration sentence because
judge did not appoint a medical expert and did not specify a duration for the sentence); Jackson v. State, 907 So.2d
696 (Fla. App. 4th Dist. 2005) (overturning chemical castration sentence because medical review did not occur
within 60 days of sentence and because judge failed to specify duration of sentence); Department of Corrections v.
Cosme, 917 So.2d 1049 (Fla. App. 5th Dist. 2006) (overturning district court’s order requiring Department of
Corrections to identify and pay for medical expert to determine defendant’s fitness for chemical castration).
159
Fla. Stat. Ann. § 794.0235(2)(a).
160
907 So.2d 696 (Fla. App. 4th Dist. 2005).
161
Id. at 697.
156

21

years imprisonment.162 The appellate court reversed the sentence, however, because the medical
review did not occur within 60 days of the imposition of sentence.163
Although one case is certainly not sufficient to show a consistent practice, Jackson does
reveal certain issues and ambiguities surrounding Florida’s “medical review” requirement (and,
by implication, the medical review provisions in the other “California-style” statutes). First, it is
not clear who the “medical expert” should be. In Jackson, this “expert” appears to have been
part of the medical staff at the Department of Corrections – possibily a doctor, but possibly not.
Second, the statute sets no criteria for determining who is an “appropriate candidate” for
chemical castration. In Jackson, the medical review was apparently limited to determining
whether the defendant could physically tolerate the MPA treatment. There seems to have been
no attempt to determine whether he had a paraphilia, which is the only male condition for which
MPA has been shown to have therapeutic value. Third, the statute requires that the medical
review occur close to the time of sentencing, but the treatment is not supposed to begin until a
week prior to release. Thus, there will often be a gap of many years, or even decades, between
medical review and treatment. Under such circumstances, even a mere determination that the
defendant can physically tolerate the medication will no longer be valid at the time treatment
commences. The statute does not call for any subsequent medical review at the time treatment
starts, nor any ongoing assessment during the time treatment continues.
In contrast to Florida, the state of Oregon has made a significant effort to develop
screening criteria to identify those offenders who should receive chemical castration. The
criteria Oregon has chosen, however, are troubling in their own way. The Oregon program uses
“three independent screening criteria” to determine who should be chemically castrated: (1) risk
to reoffend; (2) presence of a central nervous system dysfunction, such as a developmental
disability (because the presence of such a dysfunction in a person who has committed a sex
offense is thought to increase likelihood of recidivism); and (3) referral from prison counselors,
parole officers, or other state officials.164 Using these criteria as a benchmark, those offenders
who are considered particularly dangerous are recommended for chemical castration.
Oregon’s criteria for implementing chemical castration are based purely on risk
assessment, rather than diagnosis of a sexual disorder. As discussed above, many (if not most)
“high risk” sex offenders do not have any kind of sexual disorder; rather, the majority have at
least some characteristics associated with an antisocial orientation or personality. But MPA
treatment has only been tested and shown to have therapeutic value for offenders diagnosed with
a paraphilia. Specifically, it is supposed to help paraphiliacs control persistent, deviant sexual
urges and fantasies. By focusing exclusively on risk, Oregon’s program will impose chemical
castration on many people who do not have a sexual disorder, but are antisocial – that is, people
who commit sex crimes because of a general willingness to violate the rights of others. MPA
treatment may successfully incapacitate this group by eliminating their (healthy) sex drives; but
it is not even arguably medically appropriate.

162

Id.
Id.
164
Maletzky & Field, supra note 44, at 405.
163

22

As of 2002, Oregon’s program did not demonstrate any difference in recidivism among
those offenders who received chemical castration and those who did not.165 No one from either
group of offenders had yet been recharged with a sexual offense, a fact which may be attributed
to small sample size and relatively short follow-up period (two years or less for all offenders).166
More significantly, preliminary results indicated that chemical castration had no effect on
nonsexual recidivism.167 Precisely the same percentage of chemically castrated offenders (50%)
had non-sexual probation violations as untreated offenders.168 To the extent that nonsexual
crime reflects antisocial orientation, it appears that chemical castration has no effect on this
orientation.169
Oregon has had significant difficulty in implementing its chemical castration program.
As of 2002, 15 of the 42 sex offenders who had been recommended for chemical castration had
not yet received it. Two major reasons for this problem were that the offenders could not afford
the treatment, or could not find a doctor willing to prescribe MPA for purposes of chemical
castration.170
2.

Continuing Politics of Castration

Despite the manifest difficulties in implementing the chemical castration laws, and
despite the lack of any evidence that they have been effective in furthering public safety, there is
nonetheless a consistent push to enact such laws in other states. Every year, several states
consider enacting a chemical castration law.171 Moreover, within the past year, Virginia,
Alabama and Kentucky have considered laws that would permit imposition of surgical castration
on sex offenders.172 Such laws have continued popularity because they promise to protect public
safety by disabling convicted offenders and deterring would-be offenders, all at much less cost
than incarceration or civil commitment. Until the unconstitutionality of these laws is determined
with certainty, they will be an increasingly common feature of the political landscape.

165

Id. at 406.
Id. at 405-406.
167
Id. at 406-407.
168
Id. at 406.
169
This result is consistent with studies showing that sex offenders who are antisocial tend to have a long history of
nonsexual crimes, whereas paraphiliacs typically do not. See, e.g., Simon, supra note 49, at 295.
170
Maletzky & Field, supra note 44, at 405. Two offenders simply refused treatment. Id. at 406. It is not clear
whether they were reincarcerated for their refusal.
171
Recent examples of states that have considered proposals for chemical castration laws include Minnesota,
Oklahoma, Pennsylvania and Vermont. See, e.g., Rachel E. Stassen-Berger, Chemical Castration for Pedophiles
Proposed, PIONEER PRESS (February 18, 2005) (Minnesota); Kelley Chambers, Chemical Castration, Corrections
Bills Begin Oklahoma Senate's First Week of Session, JOURNAL RECORD LEGISLATIVE REPORT (February 13, 2006)
(Oklahoma); Rebekah Scott, Senator Drafting Legislation to Treat Sex Offenders with Drug, PITTSBURGH POSTGAZETTE (December 22, 2005) (Pennsylvania).; For Boys, Legislation a Cut Above, BURL. FREE PRESS (January 31,
2006) (Vermont).
172
See, e.g. Tammie Smith, Castration Bill Delayed a Year; Crime Commission Will Be Asked to Study SexPredator Measure, RICHMOND TIMES-DISPATCH (February 10, 2006); Alabama: First We'll Castrate 'Em, Then
We'll Kill 'Em, Then We'll Castrate 'Em Again!, THE HOTLINE (July 27, 2005); Lt. Gov. Pence Commits to
Strengthening Kentucky Sexual Offender Laws US STATES NEWS (September 20, 2005).
166

23

III.

CHEMICAL CASTRATION AND THE EIGHTH AMENDMENT

The Eighth and Fourteenth Amendments to the United States Constitution prohibit
federal and state173 government from inflicting “cruel and unusual punishments” on those
convicted of crime.174 Although the Supreme Court has never comprehensively defined what it
means for a punishment to be “cruel and unusual,”175 it has repeatedly declared that the main
purpose of this Clause is to prevent the government from imposing punishments that deny or
violate human dignity.176 In Part III.A, below, I will describe what the concept of human dignity
means in the context of the Eighth Amendment, and show how it has shaped the parameters of
the Court’s jurisprudence with respect to inherently cruel punishments. In Part III.B, I will use
the Court’s focus on human dignity as a lens for examining the constitutionality of the chemical
castration laws described above.
A. Cruelty and Human Dignity
All punishment involves the deliberate infliction of pain,177 but not all punishments are
cruel within the meaning of the Eighth Amendment. According to the Oxford English
Dictionary, an action is “cruel” if it shows “indifference to or pleasure in another's distress.”178
Similarly, the Supreme Court has often stated that punishment is unconstitutionally cruel if it
involves “the unnecessary and wanton infliction of pain,”179 terror,180 disgrace181 or
degradation.182
These definitions imply that the line between non-cruelty and cruelty depends, in part, on
the attitude of those who impose punishment toward those who receive it. A punishment that is
calculated to maximize the offender’s suffering as an end in itself, or that treats such suffering as
an unimportant matter, is cruel because it implies that the offender is not a proper subject of our
173

The Eighth Amendment’s prohibition of cruel and unusual punishments has been incorporated into the Due
Process Clause of the Fourteenth Amendment, and is applicable to the states. See Robinson v. California, 370 U.S.
660, 667, 82 S.Ct. 1417, 1421 (1962) (state punishment for narcotics addiction “inflicts a cruel and unusual
punishment in violation of the Fourteenth Amendment”); cf. State of La. ex rel. Francis v. Resweber, 329 U.S. 459,
463, 67 S.Ct. 374, 376 (1947) (“The traditional humanity of modern Anglo-American law forbids the infliction of
unnecessary pain in the execution of the death sentence. Prohibition against the wanton infliction of pain has come
into our law from the Bill of Rights of 1688. The identical words appear in our Eighth Amendment. The Fourteenth
would prohibit by its due process clause execution by a state in a cruel manner.”)
174
U.S. Const. Am. VIII.
175
See, e.g., Wilkerson v. State of Utah, 99 U.S. 130, 135 (1878) (“Difficulty would attend the effort to define with
exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be
inflicted.”); Weems v. U.S., 217 U.S. 349, 368 (1910) (“What constitutes a cruel and unusual punishment has not
been exactly decided.”); Furman v. Georgia, 408 U.S. 238, 258 (1972) (Brennan, J., concurring) (“The Cruel and
Unusual Punishments Clause . . . is not susceptible of precise definition.”
176
See note 26, supra, and cases cited therein.
177
Indeed, the words “punishment” and “pain” derive from the Latin word poena, which refers to the imposition of a
fine or other penalty in retribution for an offense.
178
Oxford English Dictionary (Second Ed. 1989).
179
Gregg v. Georgia, 428 U.S. 153, 173 (1976). See also, e.g., Hope v. Pelzer, 536 U.S. 730 (2002); Farmer v.
Brennan, 511 U.S. 825, 834 (1994).
180
Wilkerson v. State of Utah, 99 U.S. at 135.
181
Id.
182
Weems v. United States, 217 U.S. at 366.

24

concern as fellow persons. This idea was developed most fully in Justice Brennan’s concurrence
in Furman v. Georgia:
The barbaric punishments condemned by history, ‘punishments which inflict
torture, such as the rack, the thumb-screw, the iron boot, the stretching of limbs,
and the like,’ are, of course, ‘attended with acute pain and suffering.’ When we
consider why they have been condemned, however, we realize that the pain
involved is not the only reason. The true significance of these punishments is that
they treat members of the human race as nonhumans, as objects to be toyed with
and discarded. They are thus inconsistent with the fundamental premise of the
Clause that even the vilest criminal remains a human being possessed of common
human dignity.183
As this passage indicates, the Eighth Amendment is predicated upon the belief that human beings
do not forfeit their place in the human community by committing crimes, even heinous ones.
The offender remains entitled to the respect and concern that is owed to all human beings, even if
he also deserves severe punishment. Therefore, the state is not free to dispose of him as it will,
but must instead punish him in a manner that accords with the inherent and inalienable dignity of
human persons.
The idea that even the worst criminals retain intrinsic human dignity and worth is a
departure from the traditional notion that criminals may forfeit their place in the human
community throught the commission of serious crime. For example, Thomas Aquinas justified
capital punishment on the ground that those guilty of serious sin have discarded their dignity and
become like beasts: “By sinning man departs from the order of reason, and consequently falls
away from the dignity of his manhood, in so far as he is naturally free, and exists for himself, and
he falls into the slavish state of the beasts, by being disposed of according as he is useful to
others. . . . Hence, although it be evil in itself to kill a man so long as he preserve his dignity, yet
it may be good to kill a man who has sinned, even as it is to kill a beast. For a bad man is worse
than a beast, and is more harmful, as the Philosopher [Aristotle] states.”184 The Eighth
Amendment rejects this notion, holding that even serious criminals retain the dignity that is
inalienably associated with personhood, and thus retain the right to be punished in accordance
with their nature as human persons.
The Supreme Court has employed the concept of human dignity as an Eighth
Amendment limit on the state’s power to punish in three related contexts. First, the Court has
held that punishments that assault the personhood of the defendant, or inflict harm for harm’s
sake, are inherently cruel and unusual.185 Second, the Court has held that the Eighth and
Fourteenth Amendments deprive the state of the power to impose criminal punishment or civil
commitment solely on the basis of a person’s undesirable personal characteristics (such as

183

Id. at 272-273.
Summa Theologica (Secunda Secundæ Partis) 64:2. See also Michael J. Perry, Capital Punishment and the
Morality of Human Rights, 44 J. Cath. Legal Stud. 1, 15 (2005) (arguing that under traditional Catholic doctrine, one
could forfeit one’s human dignity through the commission of serious crime).
185
See discussion infra notes 190-234 and accompanying text.
184

25

dangerousness).186 Finally, the Court has struck down punishments that are not inherently cruel,
but are grossly disproportionate to the offense.187
These three areas of the Court’s Eighth and Fourteenth Amendment jurisprudence are
tied together by the concept of human dignity. Punishment that deliberately inflicts physical
harm for harm’s sake, or assaults the offender’s personhood, is cruel and unusual because it
treats the offender as a thing whose suffering is unimportant (or affirmatively desirable) rather
than treating him as a member of the human family who deserves our concern – even if he also
deserves serious punishment. Similarly, punishment that is given in the absence of voluntary
wrongdoing is cruel and unusual because it implies that the offender’s moral culpability is
irrelevant to the questions of whether she deserves punishment. Finally, punishment that is
grossly disproportionate to the offense implies that the offender’s moral culpability is irrelevant
to the question of how much punishment she deserves. In short, each category of punishment
treats the offender as a thing rather than a person, whose suffering is unimportant, and whose
punishment need not be limited by her objective desert.
This essay will focus on the first category of cruel and unusual punishment – punishment
that is inherently cruel.
The Supreme Court has recognized certain types of punishment to be inherently cruel,
and thus constitutionally prohibited. Paradigmatic examples of cruel punishments include the
old English practice of dragging traitors to the place of execution, and (if they were convicted of
high treason) disemboweling them alive, before beheading and quartering them.188 Further
examples include burning offenders alive,189 public dissection,190 use of the rack,191
thumbscrews,192 hanging in chains,193 and (of course) castration.194 Punishments like these,
which involve torture and maiming, are considered inherently cruel, and therefore they are
impermissible “always-and-everywhere.”195
In the twentieth century, the Supreme Court expanded its definition of inherently cruel
punishment to include punishments that degrade or deny the personhood of the offender, even if
they do not involve physical torture. For example, in Weems v. United States,196 the court held
186

See Robinson v. California, 370 U.S. 660 (1962) (holding that it violates the Eighth Amendment to criminally
convict a person based on his status as a drug addict); Kansas v. Crane, 534 U.S. 407 (2002) (holding that the
Constitution does not permit civil commitment of sex offenders absent a finding of mental abnormality and lack of
control over dangerous behavior).
187
Cf. Ingraham v. Wright, 430 U.S. 651, 667 (1977) (“These decisions recognize that the Cruel and Unusual
Punishments Clause circumscribes the criminal process in three ways: First, it limits the kinds of punishment that
can be imposed on those convicted of crimes; second, it proscribes punishment grossly disproportionate to the
severity of the crime; and third, it imposes substantive limits on what can be made criminal and punished as such.”)
188
Wilkerson v. State of Utah, 99 U.S. 130, 135 (1878).
189
Id.
190
Id.
191
Robinson v. California, 370 U.S. at 675.
192
Id.
193
Weems v. United States, 217 U.S. 349, 377 (1910).
194
Id.; see also Furman v. Georgia, 408 U.S. 238, 265 (1972) (Brennan, J., concurring).
195
Atkins v. Virginia, 536 U.S. 304, 338 (2002) (Scalia, J., dissenting).
196
217 U.S. 349 (1910).

26

that it violated the Eighth Amendment to sentence a public official who had been convicted of a
strict-liability regulatory offense (putting false information on a government document) to fifteen
years imprisonment at “hard and painful labor,” in chains, with no civil rights during
confinement and no prospect of ever escaping official surveillance afterward. These conditions
were so severe and degrading197 that they “amaze[d]”198 the Court, which struck down the
sentence as cruel and unusual.199
Similarly, in Trop v. Dulles,200 the Supreme Court held that it violated the Eighth
Amendment to revoke the citizenship of a soldier who received a dishonorable discharge after
conviction for wartime desertion.201 In a plurality opinion, Chief Justice Warren acknowledged
that wartime desertion was a capital offense, and that therefore there could be “no argument that
the penalty of denationalization is excessive in relation to the gravity of the crime.”202
Nonetheless, he held that this punishment subjected the offender to a “fate forbidden” by the
Eighth Amendment.203 Denationalization was, in some ways, a worse punishment than physical
torture, because it involved “the total destruction of the individual's status in organized
society.”204 By losing citizenship, the offender was not merely deprived of rights, but of “the
right to have rights.”205 This left the offender completely vulnerable: “fair game for the despoiler
at home and the oppressor abroad.”206
More recently, the requirement that punishment must accord with basic notions of human
dignity has been upheld in cases regarding unconstitutional prison conditions, excessive use of
force by prison officials, and use of experimental or psychotropic drugs as a means of controlling
prisoner behavior. When imprisoned after conviction for a criminal offense, offenders retain
certain civil rights, including the right to free exercise of religion, free speech, and due process,
although these rights may be substantially curtailed due to the need for prison security.207 They
also retain the right to be free from cruel and unusual punishment.208 The Supreme Court has
stated that the protection of inmate rights and dignity is central to the overall preservation of a
free society: “The continuing guarantee of these substantial rights to prison inmates is testimony
to a belief that the way a society treats those who have transgressed against it is evidence of the
essential character of that society.”209

197

Id. at 366 (“No circumstance of degradation is omitted.”)
Id.
199
Weems can also be understood as a “gross disproportionality” case, for the Court was clearly concerned about the
severity of the punishment in relation to the offense: “[I]t is a precept of justice that punishment for crime should be
graduated and proportioned to offense.”
200
356 U.S. 86 (1958).
201
Id. at 87.
202
Id. at 99.
203
Id.
204
Id. at 101.
205
Id. at 102.
206
Id. at 102 n.33 (quoting with approval lower court dissent by Chief Judge Clark).
207
Hudson v. Palmer, 468 U.S. 517, 523-524 (1984).
208
Id.
209
Id.
198

27

Under federal law, prison inmates are permitted to bring suit against prison officials for
violation of their constitutional rights,210 including the right to be free from cruel and unusual
punishment.211 In adjudicating such suits, the Supreme Court has declared that prison officials
are obliged to look after inmate needs for medical care,212 personal safety and security,213
nutrition,214 sanitation,215 warmth216 and exercise.217 Indeed, the Court has gone so far as to hold
that prison officials have a duty to protect prisoners from serious risk of future harm to their
health, as may result from prolonged exposure to second-hand smoke.218 If prison officials act
with “deliberate indifference”219 to such “identifiable human need[s],”220 they may be held liable
for imposing cruel and unusual punishment.
In cases involving the alleged excessive use of force against an inmate, the Court gives
greater deference to prison officials than in cases alleging unconstitutional prison conditions,
because force may often be needed to maintain order and safety in the prison environment.221
Nonetheless, prisoners can maintain a claim that excessive force constitutes cruel and unusual
punishment where more than de minimis force was applied “maliciously and sadistically for the
very purpose of causing harm.”222 Thus, for example, the beating of a handcuffed prisoner by
guards can constitute an Eighth Amendment violation even where the beating does not result in
serious injury.223 Similarly, prison guards were found to have violated the Eighth Amendment
where they handcuffed a prisoner to a hitching post, and thereby “subjected him to a substantial
risk of physical harm, to unnecessary pain caused by the handcuffs and the restricted position of
confinement for a 7-hour period, to unnecessary exposure to the heat of the sun, to prolonged
thirst and taunting, and to a deprivation of bathroom breaks that created a risk of particular
discomfort and humiliation.”224

210

42 U.S.C. § 1983.
Estelle v. Gamble, 429 U.S. 97, 105 (1976).
212
Estelle v. Gamble, 429 U.S. at 103.
213
Hutto v. Finney, 437 U.S. 678 (1978); cf. Youngberg v. Romeo, 457 U.S. 307, 315-316 (1982) (“If it is cruel and
unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the
involuntarily committed-who may not be punished at all-in unsafe conditions.”); Farmer v. Brennan, 511 U.S. 825,
837 (1994).
214
Hutto v. Finney, 437 U.S. 678 (1978).
215
Hutto v. Finney, 437 U.S. 678 (1978).
216
Wilson v. Seiter, 501 U.S. 294, 304 (1991).
217
Wilson v. Seiter, 501 U.S. at 304. See also Rhodes v. Chapman, 452 U.S. 337, 348 (1981) (holding that practice
of “double celling” prison inmates did not constitute cruel and unusual punishment where it “did not lead to
deprivations of essential food, medical care, or sanitation,” and did not “increase violence among inmates or create
other conditions intolerable for prison confinement.”)
218
Helling v. McKinney, 509 U.S. 25 (1993).
219
Estelle v. Gamble, 429 U.S. at 104; Wilson v. Seiter, 501 U.S. 294, 296 (1991); Farmer v. Brennan, 511 U.S. at
837 (holding that “deliberate indifference” standard is met where “the official knows of and disregards an excessive
risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that
a substantial risk of serious harm exists, and he must also draw the inference.”).
220
Wilson v. Seiter, 501 U.S. at 304.
221
Whitley v. Albers, 475 U.S. 312 (1986).
222
Id. at 320-321 (1986) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).
223
Hudson v. McMillian, 503 U.S. 1 (1992).
224
Hope v. Pelzer, 536 U.S. 730, 737-38 (2002).
211

28

Finally, several lower court cases have held that it violates the Eighth Amendment to use
drugs merely to incapacitate inmates, or punish them for violations of prison rules, even where
the drugs are characterized as “aversive therapy” rather than punishment. For example, in
Mackey v. Procunier, a state prisoner who had been sent to a mental health facility for shock
treatment alleged that the hospital gave him injections of a “breath-stopping and paralyzing
fright drug”225 as part of an experiment “to ascertain whether, by instilling of fright and infliction
of pain, accompanied by psychological suggestion, behavior patterns can be affected.”226 The
Ninth Circuit held that these allegations raised “serious constitutional questions respecting cruel
and unusual punishment or impermissible tinkering with mental processes,”227 and therefore
reversed the district court’s dismissal of the complaint. Similarly, in Knecht v. Gillman, an
inmate at a mental hospital alleged that hospital officials used a morphine-based, vomit-inducing
drug as an experimental “aversive stimuli” to change the behavior of inmates who violated
hospital rules.228 Once again, the court held that this constituted cruel and unusual punishment,
at least in the absence of informed consent from the inmates.229
In a related context, the Supreme Court has held that it violates the Fourteenth
Amendment’s Due Process Clause to subject prisoners to involuntary medication unless two
conditions are met: (1) The medication must be medically appropriate; and (2) the medication
must further an overriding state interest that cannot be satisfied via less intrusive means.230 The
due process concerns surrounding coercive imposition of medical treatment are particularly
strong with respect to drugs that affect thought processes or impose severe side effects. As the
Fourth Circuit has explained, the coercive imposition of mind-altering drugs to prisoners “has the
potential to allow the government to alter or control thinking and thereby to destroy the
independence of thought and speech so crucial to a free society.”231 Similarly, the coercive
imposition of drugs with severe side effects creates a substantial danger that the state may be
imposing cruel punishment in the guise of “treatment.”232 Therefore, in the absence of consent,
coercive medical treatment is only permissible where it is both medically appropriate and the
least intrusive means to achieve an overriding government interest.
225

477 F.2d 877 (9th Cir. 1973).
Id. at 878.
227
Id.
228
488 F.2d 1136, 1140 (8th Cir. 1973).
229
Id.
230
Riggins v. Nevada, 504 U.S. 127, 135 (1992); Washington v. Harper, 494 U.S. 210 (1990). Cf. Vitek v. Jones,
445 U.S. 480 (1980) (“A criminal conviction and sentence of imprisonment extinguish an individual’s right to
freedom from confinement for the term of his sentence, but they do not authorize the state to classify him as
mentally ill and to subject him to involuntary psychiatric treatment without affording him additional due process
guarantees.”).
226

231

United States v. Charters, 829 F.2d 479, 489 (4th Cir. 1987) (“The impact of antipsychotic medication upon the
mind may be sufficient to undermine the foundations of personality. Such mind altering medication has the
potential to allow the government to alter or control thinking and thereby to destroy the independence of thought and
speech so crucial to a free society. [T]he power to control men's minds' is ‘wholly inconsistent’ not only with the
‘philosophy of the first amendment but with virtually any concept of liberty.”) (internal citations omitted). See also
United States v. Williams, 356 F.3d 1045, 1054 (9th Cir. 2004) (noting that antipsychotic drugs affect “cognition,
concentration, behavior, and demeanor. While the resulting personality change is intended to, and often does,
eliminate undesirable behaviors, that change also, if unwanted, interferes with a person’s self-autonomy, and can
impair his ability to function in certain contexts.”).
232
Harper, 494 U.S. at 229-30.

29

In sum, a punishment will be considered inherently cruel if it involves physical torture or
maiming, or constitutes a direct assault on the offender’s dignity and personhood – his “right to
have rights.” Moreover, cases involving poor prison conditions, excessive use of force and
involuntary medication confirm that convicted offenders retain the right to be treated in a manner
that accords with human dignity. They retain the right to have their “basic needs” looked after,
including the need for medical care, personal security, food, warmth, and sanitation. They also
retain the right not to be subjected to the malicious use of force employed for the purpose of
causing needless pain or humiliation. Finally, they retain the right not to be subjected to
involuntary medication for the mere purpose of incapacitation. When any of these rights are
deliberately violated, the state treats offenders as less than human, whose suffering is
unimportant, and who may be used (and altered) merely to serve state ends.
B. Is Chemical Castration Cruel and Unusual Punishment?
In determining whether chemical castration (as imposed by the state laws described
above) constitutes cruel and unusual punishment, this article will consider the following issues in
turn: 1. Is chemical castration sufficiently similar to surgical castration to constitute a
paradigmatic example of inherently cruel punishment? 2. To the extent chemical castration
differs from surgical castration, does it nonetheless deny the offender’s right to be punished in a
manner that accords with human dignity?
1.

Chemical v. Surgical Castration

As noted above, surgical castration is generally considered to be a paradigmatic example
of cruel and unusual punishment.233 Chemical castration is similar to surgical castration, in that
both procedures drastically reduce the level of testosterone in the offender’s system. By
eliminating testosterone, both procedures largely disable the offender’s sex drive, including
sexual desire, performative capacity, and procreative capacity. Chemical castration differs from
surgical castration in two primary ways: It is a pharmacological rather than surgical procedure;
and its sexual effects appear to be reversible (although at least some of its side effects do not).
To determine whether the similarities between chemical castration and surgical castration
are sufficient to make the two procedures constitutionally equivalent, it is first necessary to
consider why surgical castration has been condemned as a paradigmatic example of cruel and
unusual punishment.
American courts have consistently described castration as a classic example of cruel and
unusual punishment. Indeed, the American Medical Association has declared it to be unethical
233

See supra note 196 and cases cited therein. See also Whitten v. Georgia, 47 Ga. 297 (1872) (recognizing
castration as an inherently cruel form of punishment); In the Matter of the Application of Lucas Candido for a Writ
of Habeas Corpus, 31 Haw. 982 (1931) (same); State v. Bartlett, 171 Ariz. 302, 309, 830 P.2d 823 (1992) (same),
disapproved on other grounds by State v. DePiano, 187 Ariz. 27, 926 P.2d 494, 497 (1996). Cf. Kenimer v. State ex
rel. Webb, 81 Ga.App. 437, 459 59 S.E.2d 296 (Div. 1, 2 1950) (MacIntyre, J., dissenting), in which the presiding
judge dissented from Court of Appeals’ ruling that cumulative punishment of three years in prison and an $11,900
fine for numerous contempt citations was cruel and unusual punishment. The dissent argued that such a sentence
was not cruel and unusual because it did not involve an inherently cruel punishment, such as castration.

30

for doctors to participate in court-ordered castration,234 and even the European countries that
permitted sex offenders to undergo castration in exchange for early release up through the 1970s
have now largely stopped doing so – despite the dramatic decreases in recidivism discussed
above – because the procedure is considered cruel and barbaric.235
Why is this so? Courts and commentators often say that chemical castration is inherently
cruel because it is a kind of mutilation. Thus, for example, in State v. Brown,236 the Supreme
Court of South Carolina voided a trial judge’s sentencing order that would have permitted three
sex offenders to obtain suspended sentences in exchange for undergoing surgical castration. This
order violated public policy, the Supreme Court held, because castration was “a form of
mutilation,” and was thus “prohibited” as a cruel and unusual punishment.237
It is not absolutely clear, however, that the Framers intended the Eighth Amendment to
categorically exclude all forms of mutilation. Branding and the cutting off of ears, for example,
were accepted forms of punishment in the colonial period.238 Indeed, in the Congressional debate
over adoption of the Eighth Amendment, Samuel Livermore objected on the ground that the
Amendment was meaningless: “‘The clause seems to express a great deal of humanity, on which
account I have no objection to it; but, as it seems to have no meaning in it, I do not think it
necessary. . . . No cruel and unusual punishment is to be inflicted; it is sometimes necessary to
hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we, in
future, to be prevented from inflicting these punishments because they are cruel?’”239 The very
idea that the Eighth Amendment might prohibit such punishments seemed, to Livermore, to have
been ridiculous.
If mutilation alone was not sufficient to mark a punishment as inherently cruel and
unusual, what makes castration sufficiently harsh to fall within this category? One way to think
about the issue is to compare the way the common law treated private parties who committed
castration versus those who committed other forms of mutilation. If castration was punished
more harshly than other forms of mutilation, this may tell us something about why the
government is forbidden by the Eighth Amendment from imposing castration as a form of
punishment.

234

See, e.g., American Medical Association House of Delegates Policy H-140.955, Court-Ordered Castration (“The
AMA opposes physician participation in castration and other surgical or medical treatments initiated solely for
criminal punishment”); Maletzky & Field, supra note 44, at 395 (surgeons are “loath to remove undamaged
tissue.”).
235
See Luk Gijs & Louis Gooren, Hormonal and Psychopharmacological Interventions in the Treatment of
Paraphilias: An Update, 33 J. Sex Research 273, 273 (1996). See also Maletzky & Field, supra note 44, at 395.
One measure of the barbarity of coerced castration may be an examination of its side effects, which include
“changes in metabolic processes; loss of protein; augmentation of pituitary functions; augmentation of creatinine
found in urine; changes in fat distribution in the body; diminution of the calcium content of bones after a period of
time; hot flashes and sweating; multiple diffuse somatic complaints; and diminishment of beard and body hair.
Additionally, castrates may exhibit a number of mental effects that require consideration; these include depressive
reactions, suicidal tendencies, emotional lability, and indifference to life.” Stone, et al., supra note 53, at 93.
236
284 S.C. 407, 326 S.E.2d 410 (1985).
237
Id. at 411.
238
LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 40 (New York: BasicBooks, 1993).
239
Weems v. United States, 217 U.S. at 369 (quoting Congressional Register p. 225).

31

According to Blackstone, at common law, castration was the most serious form of the
crime of mayhem. Mayhem was defined as “the violently depriving another of the use of such of
his members, as may render him the less able in fighting, either to defend himself, or to annoy
his adversary. And therefore the cutting off, or disabling, or weakening a man’s hand or finger,
or striking out his eye or foretooth, or depriving him of those parts, the loss of which in all
animals abates their courage,” i.e., the testes, “are held to be mayhems.”240 Other kinds of
mutilation, on the other hand, including “the cutting off his ear or nose or the like” were not
considered mayhems at common law.241 Mayhem was considered was considered “an atrocious
breach of the king’s peace,” and the typical punishment was fine and imprisonment. But those
who committed mayhem by castration were guilty of a capital felony that could be punished by
death, or exile and the forfeiture of one’s entire estate.242
From this discussion it appears that, with respect to mutilation, the common law
recognized an ascending scale of seriousness. Simple mutilation was not serious enough to
constitute the “atrocious” crime of mayhem. Mutilation that deprived a person of the use of one
of his members, and thus made him more vulnerable in a fight, constituted mayhem punishable
by fines and imprisonment. Finally, mutilation that deprived a man of his very courage or
manhood – that is, castration – was a capital offense, treated just as harshly as murder.
The idea that private parties who subject others to castration were to be treated in the
same manner as murderers, because they had “killed” the manhood of their victim, is a fairly
constant theme in Western culture.243 From at least the second century on, Roman law subjected
those who castrated others to the same punishment as murderers and poisoners.244 Similarly, in
the thirteenth century, Bracton noted that castration was a capital offense.245 Indeed, even in the
antebellum American South, it was considered a crime for a white person to castrate a slave,
although many other forms of harsh physical abuse were permitted.246
From the perspective of the common law, then, it appears that castration might be
considered cruel and unusual because it does more than merely mutilate the offender: It disables
one of his key bodily functions, thus robbing him of his “courage” or manhood.
240

SIR WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, VOL 4, ch. 15, 205-206 (William G.
Hammond, ed.) (San Francisco: Bancroft-Whitney Co., 1890). The common law crime of mayhem was also
recognized in Eighteenth and Nineteenth century America. See, e.g., JOHN WILDER MAY, MAY’S CRIMINAL LAW
(Boston: Little, Brown 1893) § 217.
241
Id.
242
Id.
243
Of course, the powers that be often did not subject themselves to the same limitations. There are historical
examples of emperors and popes employing eunuchs or castrati as guards or singers. Moreover, throughout western
history, castration was sometimes employed as a criminal punishment. See Stelzer, supra note 37, at 1675 n. 6. The
Eighth Amendment is a decisive break from that tradition.
244
See The Digest of Justinian 48.8.4.2 (Philadelphia: University of Pennsylvania Press 1998) (Alan Watson, ed.)
(“The same deified Hadrian wrote in a rescript: ‘It is laid down, in order to end the practice of making Eunuchs, that
those who are found guilty of this crime are to be liable to the penalty of the Lex Cornelia [covering murderers and
poisoners]. . .’”)
245
Bracton: De Legibus Et Consuetudinibus Angliæ “Sed quid dicetur si quis alterius virilia absciderit, et illum cum
libidinis causa vel commercii castraverit? Tenetur, sive hoc fecerit volens vel invitus, et sequitur poena, aliquando
capitalis, aliquando perpetuum exilium cum omnium bonorum ademptione.”
246
See State v. Maner, 2 Hill 453, 20 S.C.L. 453 (S.C. App. 1834).

32

The results are similar if one examines castration from the perspective of modern
American constitutional law. From the modern perspective, castration robs the offender of at
least three fundamental rights that are integral to human dignity: the rights to bodily integrity,247
to procreation,248 and to freedom of thought.249 Moreover, it does more than just infringe these
rights; it destroys the defendant’s very capacity to enjoy them. Just as denationalization deprived
the defendant in Trop of the “right to have rights,” castration deprives the offender of his very
capacity to think and perceive sexually, and to procreate. This is more than mere infringement: it
is assaultive destruction or maiming. No doubt, the fact that castration involves the assaultive
destruction of one’s sexual nature is the reason that private individuals were punished like
murderers, for castration is, indeed, a kind of partial killing.
To what extent does chemical castration cause injuries similar to those imposed by
surgical castration? Like surgical castration, it involves an invasion of bodily integrity. Rather
than surgically removing a sex organ, chemical castration requires the injection or ingestion of
drugs that override that organ’s function. In one sense, this may seem a lesser invasion because
it leaves the organ intact. But it is a greater invasion in the sense that it floods the system with a
drug that not only impairs organ function, but also imposes severe side effects and health risks
(discussed below).
Does chemical castration rob the offender of his “courage” or manhood in the same
manner as surgical castration? The answer to this question will depend, in part, on the manner in
which the chemical castration laws are implemented. Both chemical and surgical castration
deprive the body and brain of testosterone, diminishing or eliminating the offender’s ability to
think and perceive in a sexual manner, to engage in sexual activity and to procreate. Therefore,
for as long as chemical castration lasts, it destroys the offender’s capacity to enjoy the
fundamental rights associated with sexuality in precisely the same manner as surgical castration.
The only difference between chemical and surgical castration is that the sexual effects of
chemical castration are apparently reversible. But as noted above, the chemical castration laws
appear designed to encourage life-long sentences for sex offenders. The majority of the statutes
only permit the MPA treatment to cease if the offender can show that it is no longer necessary.
But the evidence indicates that when treatment stops, sexual desire returns, and offenders are just
as dangerous as they were before they were treated. It is difficult to imagine a scenario in which
a sex offender, once sentenced to chemical castration, could ever prove that it was no longer
necessary.

247

See Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 278 (1990) (Noting that “[t]he principle that a
competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment,” based in
large part on the common law principle of bodily integrity, “may be inferred from our prior decisions.”)
248
See Skinner v. State of Okl. ex rel. Williamson, 316 U.S. 535.
249
See, e.g., Rennie v. Klein, 462 F.Supp. 1131, 1144 (D.N.J. 1978) (“the right of privacy is broad enough to include
the right to protect one's mental processes from governmental interference”). Cf. Boy Scouts of America v. Dale, 530
U.S. 640, 661 (2000) (quoting with approval the statement in Justice Brandeis’ concurrence in Whitney v.
California, 274 U.S. 357, 375 (1927), that the Founders “believed that freedom to think as you will and to speak as
you think are means indispensable to the discovery and spread of political truth.”).

33

The similarities between surgical castration and chemical castration vastly outweigh the
differences, particularly given the likelihood that many (if not most) offenders who receive it
will be effectively given a permanent disability. If surgical castration is a paradigmatic example
of cruel and unusual punishment, then so is chemical castration.
2.

Further Characteristics of Chemical Castration

We must also consider whether chemical castration has any additional characteristics that
would make it inherently degrading, and therefore cruel and unusual, above and beyond its
similarities to surgical castration. Chemical castration has at least two such characteristics: It
exposes the offender to undue health problems and long-term health risks, and it involves
administration of a mind-altering drug purely for purposes of incapacitation (as opposed to
medical treatment).
As noted above, the Supreme Court has held that the government has a duty, under the
Eighth Amendment, not to impose conditions of punishment that inherently impose a severe risk
of harm to the offender’s health and physical well-being.250 Chemical castration subjects sex
offenders to severe immediate and long-term physical harm. As noted above, the intended effect
of chemical castration is to impose a severe impairment to body and brain function, reducing or
eliminating the offender’s capacity to think, perceive or perform sexually. Chemical castration
also imposes severe side effects on many recipients, including testicular atrophy251 dramatic
reduction in sperm production,252 pulmonary embolisms, diabetes mellitus, depression,
nightmares, weight gain, headaches, muscular cramps, dyspepsia and gallstones.253
As the symptoms listed above indicate, chemical castration imposes severe, immediate
detriments to the offender’s health, as well as significant long-term risks. But most significant of
all may be its demonstrated impact on bone mineral density. As noted above, MPA’s
manufacturer have warned women not to use it over the long term (more than two years) because
it deprives the body – at least partly irreversibly – of bone mineral density, a loss that could
ultimately result in crippling osteoporosis or bone fracture. Even the most lenient sentence
involving chemical castration will likely require that it be imposed for more than two years.
Many offenders will be required to take MPA for life. Moreover, as noted above, the dosages
given to men are anywhere from 8 to 43 times greater than the dosages given to women.
250

See, e.g., Estelle v. Gamble, 429 U.S. 97 (deliberate indifference to serious medical needs); Hutto v. Finney, 437
U.S. 678 (personal safety and security); Helling v. McKinney, 509 U.S. 25 (exposure to severe risk of future health
problems).
251
See Fitzgerald, supra note 16, at 6-7.
252

Saleh & Berlin, supra note 71, at 241 (noting that MPA “decreases spermatogenesis.”); Stone, et al., supra note
53, at 96 (chemical castration has the effect of “decreasing morning erections, ejaculation, and spermato-genesis.”);
Fitzgerald, supra note 16, at 6-7 (chemical castration results in “dramatic decrease in sperm count”).
253
Rösler & Witztum, supra note 37, at 47. See also Saleh & Berlin, supra note 71, at 241 (“MPA can cause a
number of potentially serious and less serious adverse effects, including depressive symptoms, breast tenderness and
galactorrhea . . . weight gain—apparently secondarily to increased fat deposition . . . nausea, abdominal pain,
nightmares, hot flashes, acne, alopecia [hair loss], hirsutism, hyperglycemia, diabetes mellitus, gallstones . . .
hypogonadism, hypospermatogenesis, and hypertension.”); Stone, et al., supra note 53, at 97 (“Side effects include
weight gain, fatigue, depression, hot and cold flashes, elevated blood glucose, nausea and gynecomastia, and
reduction of spermatogenesis.”).

34

Therefore, although there are no long-term studies regarding the health effects of MPA treatment
on men,254 it appears likely that they will be very severe indeed. The deliberate infliction of such
short-and-long-term physical suffering on sex offenders is inconsistent with the idea of human
dignity that lies at the heart of the Eighth Amendment.
Chemical castration is also inconsistent with human dignity because it imposes
pharmacological means to manipulate the thought processes of offenders, and thereby
incapacitate them. As the Supreme Court declared in Trop v. Dulles, “[f]ines, imprisonment and
even execution may be imposed depending on the enormity of the crime, but any technique
outside the bounds of these traditional penalties is constitutionally suspect.”255 If the coercive
imposition of medication is not both medically appropriate and necessary to achieve a
compelling government interest, it violates the Fourteenth Amendment’s Due Process Clause. If
the medication is imposed solely to incapacitate the offender, it constitutes cruel and unusual
punishment.
The chemical castration laws do not even arguably provide for “medically appropriate”
treatment. In most states, the imposition of chemical castration is determined primarily by
offense of conviction, age of victim, and recidivism. In Oregon, it is determined solely on the
basis of the commission of a “sex offense” combined with a determination that the defendant
poses a relatively high risk of recidivism. In Wisconsin, the statute prescribes no substantive
standards other than offense of conviction. All states provide for either minimal or no medical
review, usually given years or decades before the treatment actually starts.
Not one state statute requires a determination that the offender suffer from a sexual
disorder. Indeed, as the discussion in Part II.C., supra, of Florida and Oregon’s attempts to
implement their castration laws indicates, those responsible for imposing chemical castration on
sex offenders appear to be focusing solely on offense of conviction and/or risk of reoffense.
Because there is absolutely no effort to restrict the use of chemical castration to those who have a
sexual disorder, it cannot be justified as a form of medical treatment.
Because the chemical castration laws do not even attempt to administer MPA on the basis
of medical need, their only purpose must be incapacitation. But it violates the Eighth
Amendment to use pharmacological means to incapacitate defendants. Using medical
technology in this manner has the potential of transforming criminal punishment into mere
biological manipulation. This practice is particularly troubling where, as here, the drug being
coercively administered operates directly on the brain. Governmental manipulation of thought
processes is inconsistent with the notion of human dignity that lies at the base, not only of the
Eighth Amendment, but of the very idea of a free society.
Ironically, the only state that appears to take the human dignity of sex offenders seriously
is Texas, which offers the option of surgical rather than chemical castration. In Texas, castration
may be performed only at the instigation of the defendant. The courts and the prison system are
forbidden from either requiring castration as a condition of release, or offering benefits such as
early release in exchange for undergoing the operation. Moreover, several rounds of screening
254
255

See, e.g., Saleh & Berlin, supra note 71, at 240; Fitzgerald, supra note 16, at 9.
356 U.S. at 100.

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are involved, to ensure that the offender has not been subjected to coercion, and understands the
medical, legal and ethical implications of the procedure. If the “chemical castration” states
adopted the procedures employed by Texas for surgical castration, there would be no question as
to whether they violated the Eighth Amendment.
CONCLUSION
The chemical castration laws deny human dignity, and thus violate the Eighth
Amendment, because they treat sex offenders as things rather than persons, as means to an end
rather than ends in themselves. Chemical castration disables the offender in body and mind, and
exposes him to severe short-term and long-term health consequences. Moreover, the avowed
purpose of chemical castration is not to make sex offenders more whole, but to maim them, and
thus to incapacitate them. These laws require the imposition of chemical castration in the
absence of any evidence that the offender who undergoes this procedure even has a sexual
disorder, much less a sexual disorder for which MPA treatment may provide therapeutic value.
The Eighth Amendment does not permit us to maim dangerous offenders in order to render them
harmless.

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