Surgical castration and other post-sentence punishments

From the June 2024 Criminal Defense Newsletter

For some, the penalty of surgical castration of a sex offender is deeply troubling. I’m not referring to chemical castration, outlawed in Michigan in People v Gauntlet,1 but rather the surgical removal of the testes or ovaries of a convicted sex offender following completion of the sentence. So provides a law passed by the Louisiana Legislature for certain sex crimes against children under the age of 13. The punishment is discretionary, but upon order of the court and a finding by a medical expert (appointed by the court) that the “offender is an appropriate candidate for surgery,” the only way to avoid the procedure is to serve an additional three to five years in prison.

Why mention what does not exist in Michigan? I was struck by the difference between the two states. Is there something unique going on in Louisiana? It appears the state engaged in significant criminal justice system reform in 2017, sending far fewer non-violent offenders to prison, but this law seems to move the needle in the opposite direction. Perhaps the motivation is tied to a particular fear of sex offenders (as a New York Times article reports), but whatever the incentive Louisiana now holds the title of first state to allow the surgical castration of sex offenders.

Michigan may not permit surgical or chemical castration, but we do have some very punitive provisions for our most serious sex crime (first degree criminal sexual conduct) with a 25-year mandatory minimum term and discretionary consecutive sentencing in some instances. There are also post-incarceration punishments that take a significant toll on sex offenders (sex offender registration and lifetime electronic monitoring). But interestingly, there is now an opportunity to reconsider two of these post-incarceration punishments. Although lifetime electronic monitoring and sex offender registration laws survived multiple legal challenges in the early aughts, we are again revisiting the sex offender registration scheme (declared invalid in 2021, although the present challenge attacks the newest version of SORA) and also the constitutionality of lifetime electronic monitoring. The Michigan Supreme Court has agreed to hear oral argument in three cases challenging these post-sentence penalties. See People v Lymon (Docket No. 164685, 1/11/23); People v Kardasz (Docket No. 165008, 5/31/24); People v Martin (Docket No. 166339, 5/31/24).

The comparison to Louisiana laws may be imperfect, but it does raise important questions about sentencing and bodily integrity. Is surgical castration, a form of state-sanctioned mutilation leading to involuntary sterilization, a constitutional penalty? Is the requirement of wearing an electronic monitoring device until death, with no individualized assessment of risk and no method to remove the requirement, cruel and/or unusual punishment? Is it an unreasonable search? These are the cutting-edge arguments of the day . . . at least until some new punishment takes center stage.

Anne Yantus
Michigan Sentencing PLLC
Copyright Anne Yantus 2024

Anne Yantus is a sentence consultant working with attorneys to promote more favorable sentencing outcomes. Anne credits her knowledge of Michigan sentencing law to the many years she spent handling plea and sentencing appeals with the State Appellate Defender Office. Following her time with SADO, Anne taught a criminal sentencing course at University of Detroit Mercy School of Law and subsequently continued to write and speak on felony sentencing law while serving as pro bono counsel with Bodman PLC. Anne welcomes your Michigan felony sentencing questions and is happy to arrange a consultation where appropriate. Due to the volume of inquiries, the author is not able to respond to pro bono requests for assistance or analysis of individual fact situations.

Endnote

1 People v Gauntlett, 134 Mich App 737 (1984), modified on other grounds, 419 Mich 909 (1984).