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.

Endnote

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

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