1. Copyright (c) 1997 Albany Law Review
Albany Law Review
1997
61 Alb. L. Rev. 285
LENGTH: 29647 words
COMMENT: A WELCOME RETURN TO DRACONIA: CALIFORNIA PENAL LAW 645, THE CASTRATION OF
SEX OFFENDERS AND THE CONSTITUTION
NAME: Kris W. Druhm*
BIO: * The author wishes to thank his wife, Heather MacDonald-Druhm, for her assistance and patience and the staff of
the Albany Law Review for their hard work on this Comment.
LEXISNEXIS SUMMARY:
... "If one experiences sexual hungers of the sort that might cause problems, for example, a hunger for children, one is
better off being less hungry." ... The judge took into account that the defendant was not a violent rapist or serial child
molester and sentenced him to five years probation subject to his submission to chemical castration with the
experimental drug Depo-Provera. ... Judging by a purely therapeutic value analysis, even surgical castration could pass
the Rennie test's first prong, as it is proven to reduce the sex offender's sex drive and allow him a measure of sexual
self-control previously unavailable, thus allowing him to function as a law abiding citizen. ... California Code 645
mandates treatment only with Depo-Provera and does not require the criminal to submit to surgical castration, although
he is free to elect that option; it is possible that the Rennie analysis need not deal with the surgical castration issue
because it is not imposed upon the offender. ... Simply put, chemical castration for sex offenses is the very archetype of
proportional punishment. ... It should be observed that the use of chemical castration to reduce the sex offender's
recidivism does not interfere with the right to procreate in the same way as the sterilization program struck down in
Skinner. ...
TEXT:
[*285]
"If one experiences sexual hungers of the sort that might cause problems, for example, a hunger for children, one is
better off being less hungry." n1
Introduction
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2. "Cut off their balls...that really fixes the guy." n2 When it comes to sex offenders and child molesters, is this a
disturbing sentiment, logical solution, or a little bit of both? This novel variation to biblical "eye for an eye" justice may
be shocking to some, but the concept is gaining a following on streets and in legislatures across the nation. n3 A case
in point is the California bill calling for the castration of repeat sex offenders that was signed into law on September 17,
1996 by Governor Pete Wilson. n4 Several other states have already tried to pass such laws; n5 Alabama, Colorado,
Florida, Iowa, Louisiana, Massachusetts, Michigan, Nevada, South Carolina, Tennessee, Texas, and Washington are
currently considering them. n6 Although these new laws are gaining states' interest, it is unclear whether any of these
bills or laws can withstand the constitutional [*286challen] that will inevitably result. Currently, relevant case law from
high courts is quite limited.
This Comment addresses the legal implications involved in castration laws. Part I provides a brief examination of
the history of sterilization and castration to provide the framework for analysis of our nation's burgeoning legislation.
n7 Part II explains what surgical and chemical castration involves and what results have been observed, including their
degrees of effectiveness. n8 Part III addresses the various common law and Constitutional issues that are raised by
California Penal Law 645 (645), treating it as representative of all the new bills favoring castration, and discussing its
chances of withstanding a court challenge. n9 Part IV examines some potential problems and shortcomings with 645,
and some unresolved issues that need to be addressed. n10
I. The History of Castration and Its Rise in America
The idea of state imposed castration is by no means a new one in America or elsewhere, as it has been used by different
cultures for centuries both for punishment and for other practical reasons. n11 Beyond its punitive applications,
castration was even used to create higher singing voices for the Sistine Choir. n12 As a point of historical fact,
legalized castration of prisoners originated in the United States in 1899 with the work of Dr. Harry Sharp of Indiana,
n13 although the practice canbe traced back even earlier. For example, during the American colonial period and the
early 1800s, slaves were routinely castrated as punishment if suspected of having relations [*287] with white women.
n14 Castration as punishment also finds its roots in the popular yet misguided eugenics movement America endured in
the early 1900s, which sought to sterilize criminals and the mentally deficient alike n15 to preserve the future integrity
of society by drying up inferior gene pools. n16 This movement was based on the genetic studies of men like Charles
Darwin and Gregor Mendel, who believed all character traits, including criminality, were passed on to offspring. n17
The eugenics movement in America eventually led to the sterilization of roughly 60,000 incarcerated and mentally
handicapped women. n18 Criminals fared no better during the eugenics movement, although some of the resulting
criminal castration laws were struck down in federal courts as cruel and unusual punishment. n19 Ironically, it was
America's obsession with [*288] eugenics in the early 1900s that inspired Adolf Hitler's theories of the master race and
triggered a campaign of castration experiments in Germany. n20
The American eugenics craze and legalized sterilization movement reached their zeniths when they received
express approval from the United States Supreme Court. In Buck v. Bell, n21 Justice Holmes authored his famous
opinion upholding a Virginia statute n22 that authorized sterilization of incompetents to prevent them from having
incompetent children, who would in turn become a burden to the state. n23
Fifteen years later, as popular sentiment began to shift away from eugenics and theories of heredity began to be
discredited, the Supreme Court began a retreat from sterilization as applied to criminals. In Skinner v. Oklahoma, n24
the Court examined Oklahoma's "Habitual Criminal Sterilization Act," n25 which imposed vasectomies on those
convicted of certain crimes. n26 The Court found this state provision violated the Fourteenth Amendment on equal
protection grounds. n27 The Court went on to hold that sterilization interfered with the right to procreate which was
"one of the basic civil rights of man." n28
Despite the strong disapproval of criminal sterilization voiced in Skinner, the Supreme Court never overruled Buck
v. Bell explicitly, and many states still have statutes on their books allowing for [*289] sterilization of mental
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3. incompetents and criminals. n29 Whenever a showing can be made that sterilization is in the best interests of an
incompetent person, some states will still allow it. n30 As recently as 1992, a Pennsylvania superior court authorized
the sterilization of a twenty-four year old woman with a mental age of five. n31
The renewed interest in castration as a means of dealing with sex crimes started to manifest itself in the 1980s. In
several courts across the country, prosecutors and judges sought to impose castration by both surgical and chemical
means on convicts as a condition of parole or probation. In State v. Brown, n32 three defendants pled guilty to a
vicious gang rape before a South Carolina court. n33 They were sentenced to the maximum penalty of thirty years, but
if they agreed to undergo surgical castration, the sentence would be suspended after surgery. n34 No South Carolina
statute required castration at the time; instead, the judge was using his discretion to suspend sentences subject to
court-imposed conditions. n35 On appeal, the South Carolina Supreme Court struck down this condition of parole as
cruel and unusual punishment under the state constitution. n36 Ironically, two of the defendants sought to [*290] have
their appeals waived so that they could submit to the castration rather than face thirty years in prison. n37
Courts around the country have also sought to make use of castration by chemical means to deal with sex
offenders. In People v. Gauntlett, n38 the defendant entered a plea of nolo contendre to charges of sexually abusing his
stepchildren. n39 The judge took into account that the defendant was not a violent rapist or serial child molester n40
and sentenced him to five years probation subject to his submission to chemical castration n41 with the experimental
drug Depo-Provera. n42
On appeal, Gauntlett challenged this condition of parole as cruel and unusual punishment, a violation of his
fundamental rights of liberty, privacy, and bodily integrity, as well as equal protection and due process. n43 Although
faced with this rich menu of constitutional grounds, the Michigan Court of Appeals chose to strike down Gauntlett's
sentence as an unlawful probationary condition beyond [*291] the power of the trial judge to impose, without ever
reaching any constitutional grounds. n44 Again, an ironic twist played out in this case as Gauntlett was a member of
the Upjohn family, whose company had created Depo-Provera in the 1950s. n45
In 1992, accused rapist Steven Allen Butler requested a Texas judge have him surgically castrated instead of
sentencing him to life in prison. n46 Judge Michael T. McSpadden agreed to the proposal, and even had a surgeon
willing to perform it for free, n47 but the resulting public outcry turned the case into a nationwide spectacle. n48 This
agreement was so unpopular that it led to Texas State Representative Ron Wilson's call for Judge McSpadden's
impeachment should the castration be carried out. n49 Ultimately, the surgeon who had volunteered backed out, and
no other physicians could be found to perform the operation, so Butler was sentenced to life in prison. n50 Judge
McSpadden, however, has since become an outspoken proponent of castration as a sentencing tool. n51
In 1996, Texas once again faced a controversy when Larry Don McQuay, a convicted child molester who boasted
of molesting 240 children, asked the State to castrate him so he would not harm [*292] anyone else upon his impending
parole. n52 Because of McQuay's inevitable parole and his statements to the effect that he would re-offend upon
release, the outcry against castration that greeted Steven Allen Butler's request only two years earlier was replaced by
public pressure on the State to allow the castration. n53 Unlike McQuay, Butler's sentence had been pending when he
made his request, so he did not represent the immediate threat McQuay did. Faced with a very difficult situation, the
state encouraged McQuay to undergo surgical castration. n54
Most of the instances above, in which courts sought to impose a form of castration on a sex offender, have failed.
n55 However, this failure was not because castration lacked support or was unconstitutional. Failure resulted because
these cases were ad hoc attempts to use an innovative sentencing tool, without any statutory authority or scheme in
place to support them. Lacking such legislative support, the imposition of either chemical or surgical castration becomes
very difficult to implement.
While Texas found itself struggling with the controversies involved in castration, by 1994 both California and
Florida had attempted to pass castration legislation. n56 Both were rejected before becoming law. California's bill was
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4. similar to 645 in language. n57 Florida's bill (dubbed the "Bobbitt Bill" n58 after John Wayne Bobbitt who gained
dubious notoriety when his wife cut off his penis in retaliation for his abusive behavior) n59 was somewhat similar to
California's 645. n60 It called for chemical castration of rapists guilty of a second offense, while the third offense was
punishable by electrocu- [*293] tion. n61 Although surrounded by controversy, this proposed law easily made it
through Florida's Senate before it died in the House. n62
In contrast to the United States, where castration of sex offenders has not yet been implemented, countries such as
Denmark, Germany and Switzerland have used surgical castration in treating sex offenders for years, n63 although as
of late its use has decreased. n64 A sizable portion of the information on castration and its effects on sex offenders
comes from Denmark, a hotbed of castration related research, because the "Access to Sterilization" law of June 1, 1929
included a right to be voluntarily castrated. n65 Norway, Sweden, Switzerland, and Germany also have statutes
allowing for voluntary castration of sex offenders. n66 Its popularity in Europe is demonstrated by the fact that over
10,000 men were castrated in Zurich alone between 1910 and 1961. n67
II. Techniques of Castration and their Effects
Two different methods of castration are available for use today, each with different effects and considerations.
California's 645 [*294] deals with both of these methods, but in dramatically different ways. Each is addressed below;
however, surgical castration is given less attention because under the scheme of 645, it is not imposed involuntarily, and
it is thus unlikely to be as controversial as chemical castration.
A. Surgical Castration
The basic premise behind castration is simple. When the subject is prone to violent sex crimes, he can be helped and
society can be protected by removing or decreasing his sex drive. Castration is a means to accomplish that objective.
The process of surgical castration, called orchiectomy, n68 involves the removal of the testes, which are the source of
testosterone and the male sex drive. n69 The modern theory behind this procedure is based less on the idea of robbing
the offender of his genitalia, his source of manhood, and more on simple pragmatism. When the testes are removed, the
resulting loss of testosterone causes a drastic reduction in sexual desire and an inability to respond to sexual stimulus.
n70 The hope is that the loss of libido will result in a sharp decline in recidivism by sex offenders upon release because
their desires and abilities are hamstrung. n71 Substantial research evidence supports the claim that surgical castration
is effective in reducing recidivism among sex offenders, with many of the studies coming from Europe. n72 Some
research suggests that recidivism rates drop from 84% to as low as 2.2% after surgical castration. n73 Dr. Georg
St<um u>rup, a leading [*295] researcher in the use of castration on sex offenders, stated that "we have not seen a
rapist...rape again after castration." n74 A study in Denmark examined 900 sex offenders that were surgically castrated
between 1929 and 1959 and found a recidivism rate of 2.4% as opposed to 9.7% for uncastrated offenders. n75 This is
an over 75% drop in recidivism among castrated sex offenders. n76 Norway's and Switzerland's own studies show a
recidivism rate as low as 7%. n77 Another Swiss study is also impressive, with facts suggesting a 72% reduction in
recidivism. n78 These facts alone provide solid support for dealing with repeat sex offenders via castration, but there
are other considerations.
Surgical castration is an irreversible procedure, n79 but it does not necessarily render the person impotent, so
there is a slight possibility he could rape again. n80 There is also a possibility that the offender, once released, could
obtain synthetic testosterone (steroids) to restore his sexual abilities. n81 The procedure itself is fairly simple,
involving a small incision made in the scrotum so the testes can be removed; it is not considered major surgery n82
and can be done on an outpatient basis. n83 However, there are side effects of the surgery that include premature
aging, loss of body and facial [*296] hair, an increase in head hair, n84 decrease of muscle mass, weight gain, and
softening and thinning of the skin. n85
In many of the cases reported by St<um u>rup, the offenders who were castrated reported very positive results and
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5. a general contentment with their new found freedom from unnatural sexual urges. n86 Despite this high success rate
among surgically castrated sex offenders, there are recorded instances where subjects became even more violent and
dangerous after treatment, and cases where castration aggravated an existing psychosis. n87 Furthermore, some
research suggests that surgically castrated men may be more likely to commit suicide following the operation. n88
However, no concrete evidence links suicide to castration, and suicide rates among criminals tend to be higher than in
the general population. n89
Despite the evidence indicating its effectiveness, surgical castration as a treatment is not widely accepted,
especially in America, and is regarded by many in the medical community as too harsh a procedure. n90 This view
was reflected in the Texas state court's inability to find a doctor willing to perform surgical castration on Steven Allen
Butler after he was sentenced to undergo the procedure. n91 It is also apparent from the language of California law 645
itself, which states that "nothing in the protocols shall [*297] require an employee of the Department of Corrections
who is a physician and surgeon...to participate against his or her will in the administration of the provisions of this
section." n92 Dr. Fred Berlin, a recognized expert in treating sexual disorders, stated, "the idea that physicians would
be used by the criminal justice system to perform mutilation on prisoners in order to effect punishment would be against
a doctor's ethics as well as the Hippocratic Oath." n93
B. Chemical Castration
A less extreme alternative to surgical castration is the use of Depo-Provera, a drug composed of a synthetic form of the
female hormone progesterone. n94 When given to men, it lowers the levels of testosterone in much the same way as
surgical castration does. n95 The subject will experience a decrease in sex drive, as well as reductions in sperm
production, erections, and ejaculations while he is treated with Depo-Provera; as the dosage is increased, the level of
libido and the abilities to sustain erections and experience orgasms are reduced. n96 In essence, Depo-Provera lowers
the levels of testosterone in men to that of pre-pubescent boys. n97 Beyond these sex-related effects, Depo-Provera
also seems to have a relaxing effect on its subjects, resulting in a decrease in overall aggressive behavior. n98 [*298]
Despite the drastic decrease in sex drive, the subjects are not always rendered impotent. There have been reports of
men being treated with Depo-Provera impregnating women, but this can, of course, be altered by increasing the dosage.
n99 The goal of Depo-Provera is in fact not to create impotence or infertility, but to create "erotic apathy," n100 thus
making the subject lack interest, if not capacity, to have sex.
The chief advantage chemical castration has over surgical methods is that the effects of the chemical castration are
reversible, while those of surgical castration are not. n101 Once drug treatment ceases, sex drive and potency return to
normal within seven to ten days. n102 Because of this phenomenon, it is clear that Depo-Provera is not a permanent
cure, just a type of sex suppressant. n103 It does, however, allow the subject to return to society without being a threat
to others.
On the other hand, treatment with Depo-Provera has somewhat uncertain side effects. Most commonly
encountered are testicular atrophy, weight gain, nightmares, hot flashes, cold sweats, muscle weakness, insomnia, and
occasional instances of diabetes. n104 More importantly, some studies have suggested that Depo-Provera may be a
carcinogen. n105 If it is proven that Depo-Provera causes cancer [*299] after prolonged exposure, it may be unusable
to treat sex offenders, as they will need to remain on the drug until they are able to control their sexual urges, which
would be an indefinite period and may take years. n106
Another drawback is that the effects of Depo-Provera wear off quickly, thus the released offender must take his
medication faithfully, which could prove difficult to guarantee or enforce. n107 This is not a problem with surgical
castration because it is permanent. n108 On the positive side, there is some evidence to suggest that the effects of
Depo-Provera are more difficult to negate by the use of male hormones (steroids) than those of surgical castration.
n109
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6. A notable problem with both surgical and chemical castration is the lack of research that supports their
effectiveness. n110 Until recently, there were not any serious, controlled, group studies dealing with either type of
treatment. n111 One researcher discussing the problems with the older studies commented, "studies confuse differing
populations of sex offenders, are methodologically poor, employ weak outcome measures, and fail to adequately assess
long-term outcome." n112 These deficiencies weakened the validity of the claims of a reduced rate of recidivism in the
eyes of some experts. n113 However, research over the past six years has taken steps to improve this shortcoming by
using control groups. n114 These tests [*300] seem to reinforce the older less reliable conclusions, at least as far as
the effectiveness of Depo-Provera. n115 One example is a Canadian clinical double-blind test using cyproterone
acetate (similar to Depo-Provera) to reduce libido in sex offenders, which seemed effective. n116
Although the research is advancing, some of these studies still suffer from evaluative problems, leaving their
validity in doubt. One such test relied on the sex offenders themselves to report their daily sexual behavior to the
scientists, which renders the reliability of the data questionable. n117 In direct contradiction to the tests which show
the effectiveness of chemical and surgical castration is another Canadian study conducted in Quebec. In this study, only
forty out of forty-eight subjects treated with Depo-Provera responded with reduced sex drives. n118 The methodology
of this particular test may have had something to do with the poor results, because the scientists were trying to wean
some of the offenders off the drug during the test period. n119 Taking some of the offenders off Depo-Provera would
result in their sexual urges returning to normal, n120 which would probably explain the high rate of recidivism.
III. California Law 645 and Its Legal Implications
On September 17, 1996, California amended its penal law to include a provision for chemical castration which became
effective January 1, 1997. n121 The amended provision applies only to sex offenders who commit crimes against
children under the age of [*301] thirteen. n122 Although limited to victims under thirteen years of age, there is
already pressure from women's groups to extend the statute's reach to include all sex offenders and rapists. n123
The statute itself is simple in design. It calls for those offenders within its reach to undergo chemical castration
with Depo-Provera, but allows the criminal to choose surgical castration as an alternative. n124 In the case of a
first-time offender, the court may, at its discretion, impose chemical treatment as a condition of parole. n125 As for
those who repeat sex offenses against children under thirteen, the treatment with Depo-Provera becomes a mandatory
condition of parole. n126 The sentencing judge will therefore lack discretionary power under 645 when dealing with
repeat sex offenders. If Depo-Provera is imposed on the offender, the chemical treatment will consist of weekly
injections beginning one week prior to the offender's release on parole. n127 This one-week period is needed to give
the Depo-Provera time to take effect. n128
These treatments will be continued until the Department of Corrections can show the Board of Prison Terms that
the treatments [*302] are unnecessary. The criteria or standards behind this determination are undefined in the statute.
n129 The statute further provides that the offender must be informed about the basic effects of Depo-Provera treatment
as well as all potential side effects. n130 This is to allow for some modicum of informed consent by the offender as
required by law. n131
The statute makes it clear that treatment with Depo-Provera or voluntary surgical castration is not the only sanction
or penalty the offender receives and that any other punishment applicable to their offense will be imposed in addition to
those under 645. n132 Because 645 is imposed upon parole, it appears that the prison terms normally accompanying
the offense are not disturbed by its application, although the statute may be interpreted to allow the sentencing judge to
use his discretion in these matters. If a prison term accompanies the application of 645, Depo-Provera treatment would
not be at issue until a week before release. This may have been a safeguard against what some critics might perceive as
too lenient a treatment of the sex offender, castrating him and then releasing him without jail time. In State v. Brown, a
South Carolina court proposed straight surgical castration and immediate release on five years probation. n133
Whether the fact that the offender is subject to 645 would work as a factor in reducing the normal prison sentence is
unclear at this time. Section 645 will only be applied to sex offenders convicted after January 1, 1997, and actual
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7. chemical castration will not occur until their release approaches, so it may be a few years before an offender is actually
subjected to its program. n134 California's Department of Corrections estimates that approximately 230 sex offenders
are paroled each year and, in turn, fall within the scope of 645. n135
There is no doubt that the constitutionality of this legislation will be heavily challenged at the first available
opportunity. A press release from the ACLU concerning 645 stated that the "bill poses [*303] serious, unresolved legal
problems regarding some very fundamental constitutional rights, including the right to privacy, the right to procreate,
and the right to exercise control over one's body." n136 One writer likened 645 to the "experimentation of Third Reich
doctors in Nazi Germany[,]" calling the legislation a "return[] to the dark ages of sexual psychopath laws and unfettered
collusion between psychiatry and the state." n137
Below, the major constitutional issues likely to arise upon a court challenge are addressed. A strong argument
could be made that California's 645 should pass constitutional muster, but there are several problems with 645 that leave
it vulnerable to constitutional challenge and need to be corrected if it is to survive constitutional analysis.
A. Effectiveness and Candidates
Perhaps the biggest question facing 645, or any chemical castration bill or law, concerns castration's actual effects.
Many critics of the legislation argue that rape and child abuse are crimes of violence, not crimes of sexuality, so
reducing sex drive will have no effect. n138 One commentator expressed his opposition to proposed castration bills by
stating that he knew "from experience that if we cut the balls off an offender as punishment, the first thing he would be
likely to do when we release him is to castrate or mutilate another child. It's simply a question of anger." n139 This
argument is well taken since there is convincing evidence that for some sex offenders, sex itself is not the primary
motivation. n140 Many rapists actually suffer from some form of sexual dysfunction. n141 These types will still be a
threat to society even after castration. Cassandra Thomas, director of Houston's Rape Crisis Center, suggested that
[*304] taking away a rapist's sex drive does not necessarily take away the desire to rape, since they are not always
intertwined. n142 In the case of a true antisocial offender, it is highly doubtful castration of any type will make him
suitable to return to society. n143 For these personality types, rape is an expression of rage and hostility, and sexual
apathy or even impotence would not necessarily be a barrier to further assaults. n144 There is some evidence,
however, that by reducing the testosterone levels of the offender by either surgical or chemical castration, overall
aggressive behavior is reduced, n145 so there may be some benefit for even the most violent subject.
There appears to be a general consensus that those sex offenders who commit rape primarily for compulsive sexual
release or gratification are proper subjects for castration. n146 These offenders, clinically referred to as paraphiliacs,
appear to be highly suitable for the type of treatment imposed by 645. n147 Because the paraphiliac is driven to
commit sex crimes by an overactive sex drive and recurrent erotic imagery, chemical castration attacks the root of the
disorder by reducing the libido. When the sex drive is reduced, the subject will have fewer of the erotic fantasies which
fuel his need to commit sex crimes, and he will be able to control his behavior as a result. n148 The language of 645
contains no mention of any screening or review to determine who is suitable for Depo-Provera treatment. n149 It is
doubtful, however, that a statute such as 645 can be effectively imposed across the board without such consideration.
n150 If California does not amend its statute to allow for some [*305] screening function, the entire integrity of the law
comes into question, and the chances of it ultimately being struck down as unconstitutional are much improved. There is
evidence that suitable candidates for Depo-Provera treatment can be extracted from the mass of sex offenders, n151
while at the same time, some offenders are clearly in no position to be helped by the treatment. n152 Castration's
utility for more traditional rapists or those with more violent dispositions is a much debated, unclear area at this
juncture, and beyond the scope of this Comment, but it does appear at this stage that for these offenders, 645 may not be
useful. n153
If California adopts some method of screening men who will be castrated under 645 based on recent research, the
constitutionality of the statute should be greatly enhanced. n154 For the purposes of this Comment, it should be
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8. assumed that some standard of selectivity will be created and administered by the legislature or Corrections Department
of California.
B. Informed Consent
Another potential problem with 645 concerns informed consent. American jurisprudence has established the principle
of informed consent, which requires that before a person submits to medical treatment, the treating physician must
inform the patient of all relevant consequential benefits, potential risks and side effects, as well as any alternative
treatment options. n155 This allows the patient to give his or her informed consent to the course of treatment with full
knowledge of all relevant considerations. If the treating physician fails to fully inform the patient of all the relevant
[*306] information, the physician is open to civil liability if some harm results from treatment. n156
This need to obtain the patient's informed consent would apply to those sex offenders who fall under 645 as well.
The language of 645 itself requires the sex offender be notified of all risks and results of treatment with Depo-Provera
prior to its administration. n157 The statute does not expressly impose the requirement of informed consent to the
voluntary surgical castration, but because the surgery is purely elective under 645, n158 the normal requirements of
informed consent would apply regardless of any statutory language. n159
In order to properly inform the sex offender of the results of treatment with Depo-Provera, the State would be
required to discuss with the offender the likely benefits that will be received through treatment, including increased
control of his sexual urges and an ability to live as a law abiding citizen. n160 The offender should also be informed
that Depo-Provera has been shown to make the subject more amenable to other types of psychotherapy which may
provide long-term solutions to his disorder. n161 The most commonly encountered side effects of Depo-Provera must
also be discussed with them, including such things as weight gain, nightmares, and fatigue. n162
Critics of mandatory castration laws have argued that because all the long-term side effects of Depo-Provera
treatment are not yet known, there cannot be any true informed consent. n163 The strongest of these arguments
focuses on the uncertain long-term side [*307] effects of Depo-Provera and its possible link to cancer. n164 While it
is true that all the side effects of Depo-Provera are not yet known, and some slight risk of cancer may exist, n165 this
does not mean the requirements of informed consent cannot be met. The doctrine of informed consent as it stands today
only requires the physician to make the patient aware of all known consequences and side effects. n166 In modern
medicine and surgery there is always some degree of uncertainty as to what may result, and there is always the
possibility that what is considered a safe treatment may be found unsafe years later. n167 If a lack of absolute certainty
as to all possible results barred informed consent, then such consent would be truly impossible. The FDA approves new
drugs after clinical testing, but the agency does not stand by as a guarantor that no adverse effects will ever be
associated with the drug. Many of the drugs used by the average citizen today have not had their long-term effects
conclusively proven. n168 As of now, enough is known about the side effects and risks involved with Depo-Provera to
allow a patient to be informed adequately. n169 Depo-Provera has met with FDA approval for use as a contraceptive,
and has also been used for treating sex offenders since the 1960s. n170 Even though there is no definitive proof that
Depo-Provera causes cancer, n171 the possibility can be made known to the offender, thus satisfying informed
consent. [*308]
The real problem with informed consent under 645 involves whether the consent is voluntary in nature. Although
the offender may be given the information needed to decide whether to submit to the procedure, the question becomes,
does he really have a choice? When castration is imposed as a condition of parole as it is under 645, the sex offender is
faced with a choice between submitting to the castration or staying in prison for the remainder of his prison term. n172
Some would argue that since his freedom from incarceration depends on submitting to the treatment, the consent is
coerced and not voluntary. n173 There is merit to the argument that any consent given in the face of prolonged
confinement has an element of coercion, but there is authority upholding consent in such situations. n174 In Bailey v.
Lally, the consent given by prisoners volunteering for non-therapeutic medical experiments was upheld despite the fact
that it was made while incarcerated. n175 The court went on to hold that confinement does not remove the capacity to
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9. consent to experiments and treatment. n176 The consent to undergo treatment with Depo-Provera should also be
upheld since it is in fact therapeutic unlike the experiments in Bailey. n177
While some cases have held that consent given while involuntarily confined is invalid, those cases should be
limited to the facts upon which they were based and not applied as a general principle. In Kaimowitz v. Michigan
Department of Mental Health, n178 a Michigan court held an involuntarily committed mental patient's consent to a
therapeutic but dangerous brain operation (psychosurgery) was invalid because of the coercive environment he was in,
the fact that his release depended on the surgery, and the high degree of danger involved therein. n179 The operation at
issue was truly experimental and called for removing sections of the brain, which clearly involved [*309] dangerous
risks. n180 The court's refusal to find consent in this case should not affect the ability for informed consent to
treatment under 645. The dangers involved in Depo-Provera treatment are not nearly as severe as those encountered in
Kaimowitz, n181 and unlike a mental patient, the sex offender will generally have the presence of mind and ability to
make decisions. n182 Another major distinction between the psychosurgery in Kaimowitz and the use of
Depo-Provera is its overall degree of intrusiveness. Courts have been more inclined to find consent voluntary in cases
with less invasive treatments, and less inclined as the invasiveness increases. n183 Since Depo-Provera is not overly
invasive, consisting merely of a periodic injection, n184 and has been proven effective in treating sex offenders, n185
it should not be difficult to find voluntary consent, even though the subject is incarcerated.
The fact that the offender's choice is not a pleasant one to make should not render it automatically coerced or
involuntary. If the courts insist that incarcerated offenders cannot voluntarily consent to treatment with Depo-Provera,
they are not upholding the rights of the offender, rather they are reducing them by taking away the option of being
treated and helped.
C. Constitutional Implications
1. Eighth Amendment Cruel and Unusual Punishment
One of the most obvious grounds that 645 can expect to be challenged under is the Eighth Amendment's ban on cruel
and unusual punishment. n186 Eighth Amendment case law as it stands today is not entirely well defined, with several
competing tests applicable. These various tests of what constitutes cruel and [*310] unusual only apply to sentences
designed as punishment, n187 and California could try to avoid that label altogether by arguing 645 is treatment rather
than punishment.
In the widely cited case of Rennie v. Klein, n188 the District Court of New Jersey set out a four-prong test to
evaluate whether a specific drug therapy should be classified as treatment or punishment before applying the tests for
cruel and unusual punishment. These prongs are: (1) does the drug possess any therapeutic value; (2) is the drug one
that is accepted within the medical community as effective; (3) is the drug in question part of a continuous/ongoing
therapy program; and (4) if negative long-term side effects result from the drug therapy, are they too harsh in light of
the benefits received. n189
Under this analysis, the first prong, requiring therapeutic value, would seem easily satisfied, at least as to chemical
castration with Depo-Provera. Treatment with Depo-Provera has been proven effective in treating sex offenders,
although experts widely disagree as to the extent of its effectiveness. n190 It is not an exaggeration to say that
Depo-Provera has therapeutic value and, therefore, is currently the most effective treatment for sex offenders. n191
Judging by a purely therapeutic value analysis, even surgical castration could pass the Rennie test's first prong, as it is
proven to reduce the sex offender's sex drive and allow him a measure of sexual self-control previously unavailable,
thus allowing him to function as a law abiding citizen. n192 [*311]
The second prong, dealing with the drug's acceptance as effective, is more difficult to negotiate. Depo-Provera has
been accepted to some degree as a means of reducing the male sex drive. n193 As a hormonal suppressant, it has an
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10. effect on sex drive that is concrete, although its overall level of effectiveness is in dispute. n194 While using
Depo-Provera to treat sex offenders is still an experimental technique not yet supported by a vast field of clinical
research, Depo-Provera itself is not considered an experimental drug and can be freely prescribed by physicians under
FDA guidelines. n195 In Knecht v. Gillman, n196 the Eighth Circuit Court of Appeals rejected an attempt to classify
drug therapy as treatment rather than punishment under the Eighth Amendment, and held that an Iowa mental institution
could not administer Apomorphine, a drug that induces extreme bouts of prolonged vomiting, to inmates as part of an
aversion therapy program. It was adjudged highly experimental in nature and punitive in application. n197
A similar result was reached in Mackey v. Procunier n198 concerning the fright-inducing drug Succinycholine.
n199 It should be noted that both cases suggest that if the inmates had consented to the drug use, the issue would not be
subject to constitutional challenge. n200
Unlike Knecht's and Mackey's aversion therapies, a colorable argument exists that Depo-Provera has achieved
acceptance as a safe drug. Several studies demonstrate its effectiveness in treating sex [*312] offenders, n201 as well
as the FDA's approval of its use for other purposes. n202 Treatment with Depo-Provera also differs from the rejected
therapy in Knecht because it lacks a clear punitive aspect and functions more as an actual therapy to help the subject sex
offender. In Rennie, the treatment argument proved successful as to the use of the drug Prolixin as part of ongoing
therapy to keep the patient calm when he had psychotic outbursts. n203 The court found that its occasional use was
purely therapeutic in nature and not designed or applied as punishment, so it did not violate the Eighth Amendment.
n204 Surgical castration, however, is not an accepted method for treating sex offenders in the United States, and its use
throughout our history was plainly punitive in nature, rather than therapeutic. n205 California Code 645 mandates
treatment only with Depo-Provera and does not require the criminal to submit to surgical castration, although he is free
to elect that option; n206 it is possible that the Rennie analysis need not deal with the surgical castration issue because
it is not imposed upon the offender.
The third prong of the Rennie test is satisfied because the Depo-Provera treatment called for under 645 represents a
continuous effort to reduce the criminal's sex drive and sexual abilities to keep him from re-offending. n207 The
ongoing treatment itself will be handled under medical supervision, although 645 does not spell out exactly what form
this supervision will take. For the same reasons, even surgical castration might qualify for treatment under this prong,
but its irreversible nature makes surgical castration more difficult to justify as treatment rather than punishment.
The final prong presents some difficulties in application in deciding whether Depo-Provera's benefits outweigh its
side effects. There is a myriad of somewhat minor side effects that result from use of [*313] Depo-Provera by males.
n208 For the most part, the common side effects are not so unduly harsh as to outweigh the benefits the sex offender
receives in the form of self-control and freedom from overblown libidinous desires. There is, however, the unresolved
issue as to whether Depo-Provera is a carcinogen. Some older studies suggest it may be a cancer-causing agent in
women. n209 These tests resulted in the FDA postponing approval of Depo-Provera as a female contraceptive until
1992. n210 However, there is little, if any, evidence that Depo-Provera would act as a carcinogen when administered
to males, with previous tests focusing solely on the drug's effects on women. n211 Even these tests have been
dismissed by many experts as inapplicable to humans. As one commentator pointed out, "how does one weigh a
research finding that monkeys given fifty times the comparable human dose of Depo-Provera for 10 years have
developed malignancies, while after 15 years on the market in developed and developing countries, there is no evidence
that the same drug induces cancer in people." n212 On this point, it is basically a matter of which side can find the
most convincing evidence, keeping in mind that in order for treatment to work, the typical sex offender will have to be
administered Depo-Provera over the course of several years, n213 thus increasing the likelihood of harm from any
serious side effects that may exist. As it stands now, however, claims that Depo-Provera is a carcinogen are not strongly
supported by scientific studies.
It is possible to support the argument that 645 imposes treatment rather than punishment by an analysis of its
actual wording. Section 645 states, "the parolee shall begin medroxyprogesterone acetate treatment one week prior to
his or her release from confinement...and shall continue treatments until the Department of Corrections demonstrates to
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11. the Board...that this treatment is no [*314] longer necessary." n214 By labeling the Depo-Provera injections as
treatments and providing that they will continue until no longer necessary, the statute suggests it is in fact trying to treat
the subject rather than punish him. It can also be advanced that since the chemical or surgical treatments are to begin
after the sex offender serves his prison sentence, it is not part of the punishment but a separate treatment to help the
subject upon release. n215
Conversely, certain language in 645 can be interpreted as suggesting the purpose of the castration is punitive in
nature. Section 645(b) states, "[the sex offender] shall, upon parole, undergo medroxyprogesterone acetate treatment or
its chemical equivalent, in addition to any other punishment prescribed for that offense or any other provision of law."
n216 This language suggests that the chemical castration is also intended as punishment.
It should be noted that merely labeling a statute a treatment rather than a punishment will not be dispositive as to
its eventual classification by the court, and the court will look to what the statute actually accomplishes. In Trop v.
Dulles, Justice Warren observed, "how simple would be the tasks of constitutional adjudication...if specific problems
could be solved by inspection of the labels pasted on them!" n217
If an argument that 645 is treatment rather than punishment proves unsuccessful, there is still a good chance the
statute could be defended against claims that it violates the Eighth Amendment's prohibition against cruel and unusual
punishment. Under the major tests for cruel and unusual punishment, the Supreme Court has inquired into whether the
sentence was: (1) greatly disproportionate to the crime; n218 (2) inherently cruel; n219 or (3) in excess of what was
required to satisfy the state's aims. n220 The most common measuring stick in recent Supreme Court jurisprudence
appears to be some form [*315] of proportionality review. In Solem v. Helm, n221 the Court created a set of objective
criteria with which to analyze proportionality of noncapital cases. n222 Although proportionality for noncapital
offenses was later expressly rejected by Justice Scalia in Harmelin v. Michigan, n223 it appears at least seven of the
justices adhered to using some degree of proportionality between the crime and the punishment imposed. n224 Since
Harmelin, it appears that most courts still apply at least the gross disproportionality standard that was suggested by
Justice Kennedy. n225
Surgical castration is very severe and unlikely to pass any Eighth Amendment analysis because it is permanent and
disfiguring. In State v. Brown, the Supreme Court of South Carolina struck down the imposition of surgical castration
as a form of mutilation. n226 Because surgical castration is only performed on a voluntary basis under 645, it should
not play a factor in determining 645's constitutionality under the Eighth Amendment.
Depo-Provera is mandatory, however, and must be analyzed under the Eighth Amendment. In examining 645
under a proportionality standard, it seems that it could pass constitutional muster. In Coker v. Georgia, n227 the
Supreme Court found a Georgia law imposing the death penalty for the crime of rape to be disproportionate, n228 but
at least three justices disagreed and felt it would not be in some cases. n229 It is instructive to note that in the majority
opinion, [*316] Justice White observed that at the time the case was being heard, Florida, Tennessee, and Mississippi
had statutes imposing death sentences for rape of a child. n230 He drew a distinction between their laws and Georgia's,
seeming to suggest that these statutes imposed punishments that were perhaps proportional to the crimes committed.
n231 While death may be considered a disproportionate sentence for rape, imposing chemical castration upon a second
offense of sex crimes against children should not be considered disproportionate. The offender has shown he cannot
control his urges and, therefore, the state steps in to do it for him. Depo-Provera's effects are temporary in nature; the
subject is not permanently impaired and may end treatment if he can prove he is able to conform his behavior to the
law. n232 The use of Depo-Provera involves the infliction of no physical pain on the subject, and its side effects are
largely innocuous. n233
It seems fair to argue that the only alternatives to the program under 645 are a lengthy prison term or, perhaps, a
life sentence under habitual criminal or "three strikes" systems. Given the leeway that courts allow state legislatures in
determining non-capital prison sentences, and recognizing "degrees of evil," n234 life terms for repeat child molesters
are very likely. n235 California and Wisconsin have already enacted statutes providing for such contingencies with
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12. their "sexual predator laws," which provide for indefinite civil commitment of repeat sex offenders. n236 Such
long-term civil commitments for [*317] sexual predators received the express approval of the Supreme Court in Kansas
v. Hendricks. n237 However, even if these statutes were struck down, it would be of little consequence because states
are free to simply expand the criminal sentences imposed on repeat sex offenders to ensure that they never regain their
freedom. Under Harmelin, there is little doubt states have the power to do so, since the sentence the Supreme Court
upheld in that case was life imprisonment without hope of parole for the possession of 672 grams of cocaine. n238
Because child molestation is an even more severe crime than drug possession, it doubtlessly calls for more severe
penalties. Given the heinous nature of the crime, it seems that anything short of death is arguably proportionate; n239
atleast castration seeks to address the problem itself. Simply put, chemical castration for sex offenses is the very
archetype of proportional punishment. After all, what could be more appropriate?
Even if the court analyzed 645 under the "inherently cruel" standard set out in Trop v. Dulles, n240 a logical
defense would seem possible. Because surgical castration is not at issue unless consented to, opponents of 645 have to
argue that requiring a sex offender to submit to chemical control of his sex drive until he learns self-control is crueler
than long-term confinement. It would seem far less cruel to regulate the sex drive and let the offender back into society
than to avoid the issue and impose a lifelong prison term. Aside from loss of sexual ability and desire, no physical harm
is inflicted, and there is no mutilation of the body. All the offender must withstand is an injection every week. Keeping
these facts in mind, it is difficult to imagine a court finding weekly injections inherently cruel in nature.
Under the test of whether the punishment exceeds what is necessary to accomplish legitimate state aims advanced
in Furman [*318] v. Georgia, n241 again it appears that chemical castration should pass as constitutional. In his
concurrence in Furman, Justice Brennan expressed the relevant standard by stating, "if there is a significantly less
severe punishment adequate to achieve the purpose for which the punishment is inflicted, the punishment inflicted
is...therefore excessive." n242 Chemical castration with Depo-Provera is a pragmatic effort to stop criminal behavior,
obviously a valid aim, and at the same time, it allows the offender a chance to return to society. This is hardly
overreaching by the state. If anything, 645 is creating a less severe sanction than the long prison terms that will result if
chemical castration proves unconstitutional. The offender is allowed his personal freedom after a much shorter jail term,
even if it is without full sexual capability. When considering this, it seems impossible to argue that the imposition of
Depo-Provera is excessive.
The Supreme Court has always taken pains to emphasize that the Eighth Amendment is fluid in scope and subject
to flux with the times. In Trop, Chief Justice Warren wrote, "the Amendment must draw its meaning from the evolving
standards of decency that mark the progress of a maturing society." n243 As science advances and new treatments like
Depo-Provera become possible, it is crucial that the Eighth Amendment adapt and allow states to try creative sentencing
when it can be demonstrated as useful in dealing with repeat sex offenders. Holding 645's program of treatment
disproportionate merely because it differs from the more traditional prison sentence only stagnates our system of
criminal justice and frustrates a truly worthwhile and useful reform. Unless this point is lost on the Supreme Court when
645 is challenged, the law should have a legitimate hope of satisfying the Eighth Amendment, despite its new approach
to time honored penological traditions.
On a tangential but related note, it is arguable that the mandatory imposition of Depo-Provera on all repeat sex
offenders must follow the same procedural rules of application as the death penalty and therefore, may not be imposed
on all found guilty of child molestation. n244 If this becomes an issue, it would not be difficult to modify [*319]
Section 645 to include a necessary finding of aggravating or mitigating circumstances to determine who is most
deserving of castration. The modification seems unlikely in the case of repeat offenders because by implication, the fact
that the offender has repeated his crime supplies the aggravating circumstance. It may become an issue as to the
application of 645 to first time offenders, however, since the statute provides for the court's discretion in imposing
castration upon these offenders as well.
The need for modifications of this type is slight because chemical castration is not as grave or final as the
imposition of death. It is a form of treatment, and there should be no need to measure aggravating circumstances before
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13. imposing therapy.
2. Fourteenth Amendment
Perhaps the biggest constitutional hurdle that 645 will have to clear comes from the Fourteenth Amendment's Due
Process clause and its various privacy interests. Because mandatory drug treatment could run afoul of several different
liberty rights, it is important to briefly analyze each in turn.
The Fourteenth Amendment is said to protect various personal liberties under the heading of the right to privacy.
n245 Within this right to privacy are several important personal liberties including the right to procreate n246 and the
right to refuse medical treatment. n247 Because these liberty interests are considered fundamental in our concept of
democracy, any state action which interferes with or restricts them comes under strict scrutiny, requiring the state to
show a compelling state interest and prove that the statute is narrowly drawn to be the least restrictive means available
to accomplish this interest. n248 [*320]
a. Right To Procreate
In Skinner v. Oklahoma, the Supreme Court declared that "marriage and procreation are fundamental to the very
existence and survival of the race," n249 and they are fundamental civil rights of man. n250 Because the Court found
a fundamental liberty involved, it struck down Oklahoma's program of sterilizing individuals convicted for committing
crimes of moral turpitude. Although this conclusion was reached on Equal Protection grounds, n251 it could have also
been done under the Due Process protection of privacy. Cases following Skinner have expanded and reinforced the idea
that procreation is an area of one's life where the state must tread lightly. In Griswold v. Connecticut, the Court held that
married couples may make their own choices concerning use of contraceptives without interference by the state. n252
This freedom was in turn extended to unmarried individuals in Eisenstadt v. Baird. n253 Perhaps the most notable
extension of the freedom of procreation doctrine came in Roe v. Wade, where the Court upheld a woman's right to
legally terminate a pregnancy. n254
Although the concept of freedom of procreation is firmly rooted within our constitutional jurisprudence, the Court
has held that the individual does not possess any absolute liberty interest that can never be restricted by law. n255 The
issue here revolves around whether 645 is interfering with the right to procreate, and if so, whether the state may justify
this interference as furthering a compelling and important state objective and as being the least restrictive means of
accomplishing this interest. n256
Critics have been quick to argue that chemical castration renders the subject infertile and, therefore, is
unconstitutional under Skinner. It should be observed that the use of chemical castration to reduce the sex offender's
recidivism does not interfere with the [*321] right to procreate in the same way as the sterilization program struck
down in Skinner. Sterilization, which is accomplished by a vasectomy (the tying off of the sperm ducts), renders the
subject not impotent but infertile. n257 Although the effects of this operation may be reversed by another surgery, it
inhibits the fathering of children and, therefore, directly interferes with the subject's ability to procreate in a way
Depo-Provera does not. Treatment with Depo-Provera as mandated by 645 is not sterilization. Depo-Provera is a
hormone suppressant that acts to reduce the subject's libido, and in higher level doses, will inhibit sexual capability.
n258 The key difference is that, although the subject's libido is reduced, creating a state of "erotic apathy," he has not
been rendered infertile. n259 The offender still has the power to make procreative choices and is able to father
offspring even during treatment. n260 Depo-Provera is also far less invasive in application than the surgical procedure
called for in Skinner, consisting merely of weekly injections of a drug that has not been shown to have serious side
effects or pose a major threat to health. n261
Even if the subject experiences a total loss of sexual functioning while on Depo-Provera, which is unlikely and can
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14. be remedied by adjusting the dosage, n262 the effects are still temporary in nature; reproductive ability will return
within seven to ten days upon cessation of treatment. n263 This is in stark contrast to the steriliza- [*322] tions
performed in cases like Skinner, where the effects were more permanent. n264
Another point of distinction between 645 and the habitual criminal sterilization act struck down in Skinner
involves the underlying purpose of these laws and their value to the public. While Oklahoma's law sought to render
criminals infertile so the public would not be troubled by a second generation of criminals n265 (the hereditary nature
of the criminal disposition was a widely supported belief at the time), n266 645 was designed to protect the public
from a much more immediate danger, the sex offender recently released from prison. As such, 645 serves a crucial
purpose that cannot be disputed and should be seen as necessary for the public good.
Although it is an exercise in semantics to suggest that reducing a person's sex drive does not have some impact on
his right to procreate, to justify the imposition of Depo-Provera on sex offenders, the state has two indisputably
compelling interests. One is protecting its citizens from sex offenders. The other is an interest in being able to
rehabilitate its criminals.
As for the interest in public safety, it is clear that the program of mandatory treatment with Depo-Provera interferes
with the offender's right of procreative freedom to a significantly lesser degree than the only alternative, long-term
incarceration like that provided for under California's or Wisconsin's "sexual predator laws." n267 It is a truism within
the United States that upon commission of a crime, the offender forfeits some of his liberty interest. There is clearly no
constitutional objection to imposing lengthy prison terms on sex offenders (a discretion left to the various state
legislatures and rarely disturbed), n268 which obviously strips the offender of a large percentage of his liberty and
destroys his freedom to make procreative choices. It seems logical then that allowing him back into society with a
reduced yet not annihilated libido, as 645 proposes, should not be a constitutionally proscribed interference of his
liberty interest, since it is a much less restrictive method of [*323] protecting the public. The subject may still make
procreative choices, to a limited degree, and Depo-Provera is proven effective, at least with the paraphiliac offender.
n269 Section 645 should be considered the least restrictive means of achieving the legitimate state aims, even under the
searching standard of strict scrutiny.
As for the state's interest in rehabilitating its criminals, Depo-Provera has proven much more effective than other
less intrusive methods in treating sex offenders and allowing them to get on with their lives. n270 Because traditional
models of treatment like psychotherapy and group counseling lack the immediate effectiveness of Depo-Provera, there
is no other less restrictive means available to the state. In addition, incarceration itself is not an effective method of
rehabilitation. n271 In many cases, the time in prison serves to harden the prisoner and make him more likely to
re-offend. n272
It is also worth remembering that although Skinner struck down a program of sterilizing criminals, sterilization of
the mentally incompetent is still carried out in several states to this day. n273 This sterilization is carried out when in
the "best interests" of the subject, even though it is a direct and intrusive interference in their right to procreate. n274 If
our court system continues to allow sterilization of the mental patient when it benefits what we perceive to be his or her
best interest, a state should not be barred from treating a sex offender with Depo-Provera, since it is also in the best
interests of the sex offender to be able to lead a normal, law abiding life. [*324]
Taking this a step further, the forced sterilization approved by the Supreme Court in Buck v. Bell was justified as
benefiting the public good by preventing incompetent people from burdening society with incompetent children. n275
Because this holding has never been overturned, it seems that because the sex offender is a much greater threat to
society than a slow child, the public good is an even more compelling justification for mandatory treatment of a sex
offender.
Aside from serving the state's interest in public safety and rehabilitation, Depo-Provera is also the most
cost-effective means of treating sex offenders. n276 California's Office of the Senate Floor Analyses estimated the
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15. annual cost to administer the medication would be approximately $ 2380 per person. n277 Other studies put the cost at
$ 7000. n278 In either case, Depo-Provera would be considerably less expensive than warehousing the offender in a
state prison for an extended sentence, because at least one study has estimated the costs of constructing new prisons to
address the problem of overcrowding at $ 50,000 per bed. n279 One commentator has suggested that since the
offender can be returned safely to society after beginning treatment, he can obtain employment and contribute toward
the expense of his own treatment. n280
In the final analysis, states' handling of sex offenders will increasingly focus on eliminating the pattern of
recidivism common in sex crimes. If programs such as 645, which allow the offender to return to society, fail, then
states will simply make sure the offender never gets out of prison. Based on these alternatives, it is difficult to argue that
the state's compelling interests in protecting the public and rehabilitating its criminals are not sufficient to justify the
limited degree of intrusion into the offender's freedom to procreate necessary under 645. [*325]
b. Right to Refuse Medical Treatment
The Supreme Court has recognized a competent person's general right to refuse medical treatment. In Vitek v. Jones,
n281 the Court asserted that mandatory behavioral therapy administered in a mental hospital compromised the subject's
liberty interests. n282 In Washington v. Harper, n283 Justice Kennedy wrote, "the forcible injection of medication
into a nonconsenting person's body represents a substantial interference with that person's liberty." n284 The Court
went on, however, to approve the state's use of forced medication on prisoners when needed to protect those around
them. n285
Washington v. Harper demonstrates that although the courts have found a right to refuse treatment under the
Fourteenth Amendment's Due Process Clause, this, like the right to procreate, is not absolute. In Jacobson v.
Massachusetts, n286 the Court ruled that an individual could be compelled against his will to submit to a smallpox
vaccination. n287 The Court balanced the right of the individual to be free from this unwanted smallpox vaccination
against the public interest in inoculating the population and safeguarding public health. n288 The Court concluded that
the right to force individuals to submit to these inoculations was within the state's inherent police power to protect the
"safety and health of the people." n289 In examining the balance between the state's police power and the individual's
liberty interest, Justice Harlan wrote, "the liberty secured by the Constitution of the United States to every person within
its jurisdiction does not import an absolute right in [*326] each person to be, at all times...wholly freed from restraint."
n290 He further commented that, "there are manifold restraints to which every person is necessarily subject for the
common good." n291
Any argument against 645 based on the right to refuse treatment should fail, for while it is clear that there is a
liberty interest in being free from unwanted medical invasions, this freedom must end where the interest in protecting
public safety begins. In Jacobson, the threat of a smallpox outbreak was sufficient to subvert the individual's liberty.
n292 Clearly the threat a sex offender poses to society is an even more compelling reason to subordinate the individuals'
liberty interest.
When a sex offender is released after serving his prison term, society's interest in freedom from assaults on their
children must outweigh the offender's interest in refusing Depo-Provera. In Rennie, the court set out general conditions
in which the liberty interests of inmates in mental hospitals could be subordinated to the state's, and they could be
forced to undergo drug treatment against their will. n293 In Washington v. Harper, the Supreme Court held that
psychotropic drugs could be forced on an inmate if he had a mental disorder and was either extremely disabled or posed
a serious threat to himself or others. n294 While both of these cases dealt with an inmate involuntarily confined to a
mental hospital, there is no logical basis to limit the holdings to these cases. In Rennie, the court stated that "the fact that
the patient is dangerous in free society may give the state power to confine, but standing alone it does not give the
power to treat involuntarily. Once confined, the patient cannot hurt those outside." n295 While it is true that, once
confined, a sex offender is no threat, he clearly is a threat upon release. Therefore, the rulings in Washington and
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16. Rennie should apply equally when a repeat sex offender is released back into society. He is treated with Depo-Provera
to protect society as well as himself.
The individual challenging the mandatory vaccinations in Jacobson may not have been entirely civic minded, but
he was not a convicted criminal. Section 645 seeks only to override the right to refuse [*327] medical treatment in
those proven to be a menace to the public; n296 those challenging the statute will be convicted sex offenders. The
liberty interest of a convicted prisoner is altogether different in nature from that of a mental patient. There is a greater
degree of state police power that applies to a prisoner as compared to a mental patient. n297 In addition, the state has
more power to restrict the rights of a prisoner than those of a law abiding citizen. n298 In Turner v. Safley, n299 the
Supreme Court held that severe restrictions on a prisoner's right to marry, a fundamental freedom, needed only to meet a
reasonableness test rather than the more stringent standard of strict scrutiny. n300 Increased police power is also
evident in the state's authority to force prisoners to work and participate in any treatment programs deemed appropriate
for their rehabilitation. n301 Because precedent holds that prisoners have fewer constitutional protections than the
average citizen, the state has greater police power; because the public safety is at stake, 645 should not be held to
interfere unduly with the offender's right to refuse treatment.
The fact that potential dangers are associated with the treatment need not work against enforcement. The
challenger in Jacobson refused to submit to vaccination based on the possible danger of sickness or even death inherent
in the early use of vaccinations. n302 Despite the dangers, the Court still held that the state could legally compel the
individual to submit to inoculation. n303 Unlike the [*328] vaccination in question in Jacobson, Depo-Provera hasnot
been shown to have similarly extreme side effects, and there is no risk of death. n304 In Washington, the Court
concluded that the administration of psychotropic drugs carried a risk of contracting tardive dyskinesia, a chronic
neurological disorder, in ten to twenty-five percent of subjects exposed to it. n305 Despite this relatively high risk and
the sometimes irreversible nature of dyskinesia, the Court still found the forced use of psychotropic drugs to be
acceptable in some cases. n306 Considering that Depo-Provera treats the offender and allows him a chance at
normalcy without unnecessarily adverse side effects, under Jacobson and Washington there is strong support for
upholding 645.
Critics may argue that even if the sex offender's interests may be subordinated, it is entirely speculative whether
any particular offender will re-offend upon release and, therefore, no reasonable basis for imposing Depo-Provera under
645 exists. The answer to this again can be found in Washington, which held that the determination of who posed a
threat to others could be made by a treating psychiatrist, and if the determination was challenged, by a special
committee. n307 In most cases the administration of 645 will make case by case determination unnecessary because it
imposes mandatory Depo-Provera treatment only upon individuals guilty of a second conviction for child molestation.
n308 This proven recidivist tendency, coupled with the extremely high re-offense rates among sex offenders, n309
makes the issue of an offender's probable threat to the public much less speculative in nature.
Forcing the offender to undergo treatment with Depo-Provera should no more be considered constitutionally
prohibited than locking him up for an extended period in an attempt to alter his [*329] behavior. While incarceration is
not medical treatment, it is an expression of the state taking permissible steps to protect the public safety. The program
imposed by 645 works to protect the public safety adequately and, at the same time, is less intrusive to the offender's
liberty, since the Depo-Provera treatment is concurrent with the offender regaining his day-to-day freedom. Any holding
by the courts that 645 is an unconstitutional invasion of the offender's right to refuse medical treatment will only result
in a greater deprivation of the sex offender's liberty - i.e., long-term prison sentences.
c. Equal Protection
It is unlikely that 645 will be successfully challenged under an equal protection argument, although it would be
possible to attack 645 as unlawful gender discrimination. While the language of 645 includes both men and women, it is
clear that treatment with Depo-Provera and the alternative surgical castration are meant to apply only to men. In fact,
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17. the treatments imposed under 645 would be largely ineffectual against women, as reduction of their sex drives would
occur in only the rarest of cases. n310 Women exposed to Depo-Provera under 645 would merely be rendered
temporarily infertile, like the millions of women around the world who take Depo-Provera voluntarily as a
contraceptive. There is, therefore, clearly a difference in 645's application to a man and a woman. Most likely, 645 is
not intended for women because they are not common perpetrators of child molestation and actually make up only a
minute percentage of those arrested for the offense. n311 The fact that this statute treats men and women differently
will not automatically mean it is unconstitutional. Because gender discrimination warrants only intermediate scrutiny,
the state only needs to show an important government objective and that the statute is substantially related to that
objective. n312 Michael M. v. Superior Court n313 addressed a California statutory rape law that punished men and
not [*330] women, yet the Supreme Court upheld the law. n314 The Court reasoned that states need not pretend that
differences between men and women do not exist when fashioning their laws. n315 Here, the difference is reflected in
the low incidents of repeat child molestation committed by women. Based on this fact, California should be able to
show that 645's program is substantially related to the important interest in preventing sex offenses against children. In
addition, 645 does not help advance any unacceptable gender stereotypes concerning women, a key factor that has led
laws to meet their ends in the past. n316 Given the fact that only an intermediate scrutiny standard is involved and
there is no recognized way to remove the sex drives of women, the courts should uphold 645 on equal protection
grounds. Section 645 represents an attempt to use medical advances effectively in dealing with crime, and the fact that
current technology only allows us to reduce the sex drive in males, the chief perpetrators of sex crimes, is no reason to
strike it down.
A more difficult issue is presented by the different treatments imposed on different sex offenders. As 645 stands
now, all repeat child molesters receive mandatory Depo-Provera treatment. This presents no problem under the Equal
Protection Clause because all people who are similarly situated are treated equally. As previously mentioned, however,
it is unlikely that Depo-Provera will be effective for all sex offenders, n317 and a classification system may need to be
established to determine who could be helped by the treatment. This classification system would impose treatment on
those identified as paraphiliac type offenders, but not for more violent offenders whose conduct is motivated by a
hostile disposition. It is here that an equal protection problem manifests itself.
Under a classification system, even though 645 would mandate different treatments for those guilty of the same
offense, it should satisfy constitutional review. Convicted felons as a class have not received suspect class status from
the courts and, therefore, 645 would only face a rational basis standard of review. This will require California to show,
or the courts to speculate, a rational reason for [*331] the statute. n318 The medical studies would support the fact
that paraphiliac subjects are amendable to Depo-Provera treatment while others are not. This would seem to satisfy the
low threshold of rational review. If 645 has a flaw, it is underinclusive in nature by not applying to all sex offenders,
just to child molesters. The courts, however, are more inclined to tolerate underinclusive measures because they
recognize that legislatures may want to attack a problem in piecemeal fashion. n319
Treating members of the overall class of sex offenders differently is not a new development in California law.
California Penal Code 1203.066, which deals with probation for child molesters, holds that probation is not available for
most offenders within this section. n320 An exception is made, however, when the offender is the child victim's
natural, adoptive or step-parent, relative, or a member of the victim's household, and when rehabilitation for the
offender is "feasible." n321 It is clear then that California law has already been treating certain sex offenders
differently, here depending on their relation to the victim and on the likelihood of successful rehabilitation. The
program under 645 does not go beyond what has already been done in California for years.
It should be pointed out that 645 differs from the sterilization program struck down in Skinner for violating the
Equal Protection Clause. n322 Skinner's habitual offender sterilization program was struck down for imposing
sterilization on those convicted of a crime like larceny, yet not on those convicted of embezzlement, although to the
Supreme Court, there was little distinction between the crimes. n323 Section 645 does not draw such arbitrary lines.
As it stands now, all repeat sex offenders receive Depo-Provera. Even if a classification system was installed, it would
operate only on those [*332] sex offenders that Depo-Provera could actually help and, thus, have a rational basis and
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18. serve the state's interests.
3. First Amendment Freedoms
Section 645 may also face attack under the First Amendment, which protects the individual's right to express his or her
thoughts and to share in the marketplace of ideas essential to a democratic country. Included in these rights is the right
to be free from government intrusion into one's thoughts, or mental autonomy. n324 Necessarily implicated in the
protection of the right to receive and express ideas must be the freedom to generate one's own ideas, or the First
Amendment would be quite a hollow right indeed. The court in Kaimowitz v. Michigan Department of Mental Health
supported this self-evident truth by stating, "to the extent that the First Amendment protects the dissemination of ideas
and expression of thoughts, it equally must protect the individual's right to generate ideas." n325 Kaimowitz was
concerned with the use of psychosurgery (an experimental form of brain surgery with uncertain results) on inmates who
either did not or could not consent to such treatment. n326 This treatment was ruled an overly intrusive invasion into
the individual's right to think, and because it was experimental in nature and irreversible, the state's interest in treating
the inmates and making them well could not justify the psychosurgery. n327
Other cases have dealt with less severe procedures to treat inmates and prisoners against their will, mainly the use
of psychotropic drugs. One example is Rogers v. Okin, n328 where a federal court barred a hospital from forcefully
administering psychotropic drugs because it violated inmates' freedom of individual thought. n329
As with other rights granted by the Constitution, freedoms of thought and expression are not eternally beyond the
reach of the state. There are instances when some degree of intrusion is [*333] permissible. In Rennie v. Klein (also
involving psychotropic drugs), the court held that whether forced treatment is an undue invasion into one's freedom of
thought must depend on an analysis of both the length and persistence of the treatment's effect on thought processes.
n330 The court went on to find that forced treatment with the drug Proxilin was acceptable and not overly intrusive.
n331 By setting up this test, it is clear that some interference into one's thought process is tolerable when serving a
legitimate state interest.
Clearly, the surgical procedure encountered in Kaimowitz was too extreme to pass the Rennie test as it had both
uncertain effects on thoughts and the added dimension of permanence. n332 The degree of mental intrusion called for
under 645 by the use of Depo-Provera should be able to pass muster under the analysis set out by Rennie. The effects of
Depo-Provera on the subject are not fraught with scientific uncertainty like the experimental psychosurgery in
Kaimowitz, thus there is no danger of harming or damaging the subject's ability to think. n333 Because the effects are
more certain and controllable, 645 is much more closely linked to accomplishing the state's interests, in both helping the
subject and making society safe from him, than forms of psychotherapy.
In Rennie's holding that the intrusion into a subject's thought processes is acceptable on First Amendment grounds,
the court pointed out that the drug Prolixin did not affect the subject's ability to perform on intelligence tests. n334
This seemed important to the court because it demonstrated that the person was still in possession of a clear, lucid mind
and not impaired in his high level thinking. n335 Depo-Provera would also allow the subject's thought process to
function normally by removing the obstacle of sexual compulsion much as Proxilin removed suicidal impulses in
Rennie. n336 Unlike the psychotropic drug treatments seen in Rennie and Rogers, Depo-Provera does not directly alter
the subject's thought patterns, but instead suppresses the hormonal level which is directly responsible [*334] for the
sexual fantasies the subject cannot control. n337 Any interference with ability to think is slight and indirect. n338 The
subject is still free to think about sex, as such thoughts are not eradicated, the intensity is merely lowered. n339 Some
commentators have suggested that the interference with the offender's thoughts is negligible, since Depo-Provera acts to
return their degree of erotic fantasy to a level of "normalcy." n340 This may be the case, but it is more likely that the
offender's degree of sexual fantasy is reduced below that of the normal person. Either way, the treatment under 645 is
not unduly disruptive to the offender's life or daily existence, since it only serves to free him from an overpowering
sexual obsession, thus allowing him to function as a healthy individual. Even the occasional side effects of
Depo-Provera, like nightmares, cold sweats, and insomnia, n341 although not pleasant, seem favorable compared to a
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19. lifetime burdened by uncontrollable and socially stigmatizing sexual compulsions. With this in mind, it seems
reasonable to argue that, for many, 645 will act less as a vehicle by which the state tramples child molesters' rights and
more as a benign system that gives them back a normal life.
Besides being minimally intrusive into the individual's psyche, the effects of Depo-Provera are temporary; upon
cessation of treatment, all related effects fade within a week. There is no evidence of permanent or long-term effects
inherent in the use of Depo-Provera. n342 Under the persistence prong of the Rennie test, this would heavily weigh in
favor of a finding of permissible interference. It is true that the subject will have to remain on Depo-Provera for an
indefinite period, but given the low level of intrusion involved, that should not necessitate a finding of undue intrusion.
As with any protected freedom, when the public good is at stake, the tolerance for interference in the person's right
to mental [*335] autonomy should be increased. In Stanley v. Georgia, n343 a man's conviction for viewing
pornography in his home was overturned when the Supreme Court held that the First Amendment protected the
individual's right to receive ideas regardless of their "social worth" or their offensiveness to others. n344 Some would
argue that this logically extends to the freedom of sex offenders to fantasize about child molestation and rape. There is,
however, a difference between an idea that is distasteful to another and a fantasy that is so powerful it drives the subject
to crimes against society. In the latter case, surely the safety of the public enables the state to step in to control these
fantasies that result in harm to others. The precedent in Stanley has itself been eroded over time, since some forms of
information and ideas are illegal to receive, such as child pornography. In cases like this, when the idea or information
is harmful or dangerous to others, First Amendment protection is lost. In New York v. Ferber, n345 the Supreme Court
held that child pornography was a clear danger and not protected by the freedom of expression. n346 Justice White
explained this exception to free speech, stating, "within the confines of the given classification, the evil to be restricted
so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is
required." n347 In light of this holding, the states clearly have the authority to regulate and criminalize these types of
dangerous ideas present in the mind of the repeat sex offender. No diminution in our freedoms of expression and
thought would result from such a policy. Under 645, the only people who will be affected are those who have
demonstrated that they lack mastery over their fantasies and, therefore, possess ideas that have become a clear danger to
others. n348
Although the specter of Big Brother and a dark Orwellian future n349 easily comes to mind when one discusses
state control of thought or behavior, nothing so extreme is heralded by 645. The law only seeks to protect the public
from dangerous sexual predators, [*336] most often repeat offenders, by removing their desire to sexually abuse
others.
IV. Unresolved Issues and Problems: Some Suggestions
California's 645 is on the cutting edge relative to our standard notions of criminal law and punishment. Because it is
potentially a trend-setting piece of legislation, there are many questions raised about how it will work and what
implications will result. Some of these questions will have to be addressed fairly soon by the California legislature and
courts if 645 is to survive.
A. Differences Between 645 and the European Studies Supporting It
One major issue bound to arise concerns the original European studies on castration that influenced the California
legislature. n350 These studies, most notably the work of Georg St<um u>rup, show a strong link between castration
and lowered recidivism of sex offenses. n351 In none of these studies, however, was castration by chemical or surgical
means imposed on the sex offender against his will, as it is under 645. The frequently cited studies were all based on
subjects who volunteered for the treatment. In fact, Denmark's "Access to Sterilization" law requires that the offender
must petition for a permit in order to be castrated. n352
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20. St<um u>rup's program at his Herstedvester Institute for Abnormal Criminals was designed so those burdened
with sexual disorders leading them to commit crimes could seek surgical intervention. No one was forced to go to the
institute by the state. n353 No similar option is offered to the repeat offender under 645, which states that "[the
offender] shall, upon parole, undergo medroxyprogesterone [*337] acetate treatment." n354 Although it is not yet
clear how the law will function, the language of 645 suggeststhat the offender has the option of refusing treatment,
thereby forfeiting his parole eligibility and remaining incarcerated. The only other option for the offender is to submit to
surgical castration instead of chemical treatment.
While these European studies focused on surgical castration for the most part, the more recent studies on
Depo-Provera conducted both here and abroad have also involved volunteers. The noted work of Dr. Fred Berlin and
Dr. John Money utilized sex offenders who agreed to participate in the treatment.
Obviously, castrating one who requests it and legitimately hopes to change his ways differs from castrating one
who is forced to undergo the treatment. How this difference will affect the results of chemical castration in California
when compared to the results in Europe remains to be seen.
Another feature of the European experiments in castration that appears to be lacking under 645 is a complex
screening procedure to determine which candidates will benefit from the surgical or chemical intervention. n355 As
mentioned before, the language of 645 implies that all repeat sex offenders will be treated with Depo-Provera,
regardless of other considerations. n356 It is very unlikely that treatment with Depo-Provera will prove effective on
those offenders whose crimes are driven by hostility or the need to dominate. n357 Even Dr. Fred Berlin, one of the
leading experts in treating sex offenders with Depo-Provera, is opposed to 645 because it fails to discriminate between
types of offenders, n358 whereas his own program at Johns Hopkins University involves a [*338] detailed screening
to determine amenability to treatment. n359 It would appear that California needs to incorporate some form of
screening procedure into 645, allowing the state to distinguish between those who offend due to sexual urges and those
motivated by forces Depo-Provera will not help. n360
The California legislature should take every possible step to increase 645's effectiveness in order to keep it on the
books. If offenders who were not helped by Depo-Provera slip through an ineffective system and re-offend, it could
sound the death knell for 645.
Another important issue concerning 645 is the failure to make provisions for some form of therapy or post-release
counseling to accompany the Depo-Provera treatments. The language of 645 does not mention any therapy or
psychological aid for the released sex offender, a fact which has drawn criticism from some commentators. n361
At least one opponent, the California Psychiatric Association, has supported the use of Depo-Provera as part of a
wider therapy program, but is critical of 645. n362 This concern seems legitimate, considering 645's goal is to reduce
the threat a sex offender poses to the public. It makes sense that an ongoing therapy program designed to modify
antisocial behavior would be desirable. [*339]
The Danish programs of therapeutic castration conducted by St<um u>rup included an intensive therapy
component that he referred to as individualized integrating growth therapy. n363 The focus of this therapy was largely
supportive in function and stressed the subject's plans for the future. n364 It seems imminently sensible to include
therapy to help the offender deal with the effects the drug has on him, how he is adjusting to his return to society, and
other issues he will face. Section 645's failure to address these issues is unfortunate, especially since some studies
indicate that the sex offender is more amenable to therapy and psychological help while on Depo-Provera. n365 In
support of this inclusion to 645, Dr. Fred Berlin has posited that a combination of treatment with Depo-Provera and
counseling is the most effective modality. n366
Although 645 contains no counseling provision, the California Department of Corrections does require that most
paroled sex offenders receive some form of counseling. n367 It is possible this requirement will work hand in hand
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21. with the castration mandated under 645. Christine May, a spokeswoman for the Corrections Department, stated,
"because we figure we've got a couple of years before anyone coming out is subject to this, we still have staff looking at
how to implement it." n368 Whatever California eventually decides to do, it is interesting to note that several
castration bills appearing in other states mimic 645, but include a therapy or screening provision. n369
B. Administrative Problems of 645
Section 645 states that treatment "shall continue...until the Department of Corrections demonstrates to the Board of
Prison Terms that this treatment is no longer necessary." n370 If, as dis- [*340] cussed above, no therapy or
counseling is involved under this statutory scheme, how and by whom the decision will be made that a particular subject
no longer requires treatment is unclear. Because Depo-Provera is not a cure that will enable the offender to remain in
control even after treatment ceases, n371 the question of when an offender will be permitted to discontinue treatment
seems a very difficult evaluative decision to make without consulting some clinical therapy reports.
Regardless of how the Department of Corrections and the Board of Prison Terms will decide when an offender's
treatment terminates, another unanswered question remains: Can treatment under 645 be sustained indefinitely, or does
the state lose legal authority over the offender as the parole period ends? Because Depo-Provera by itself is not a cure
and merely suppresses the sexual disorder during treatment, n372 it seems that authority over the released offender
must be extended over a long time frame. As it stands now, however, the average parole period in California is three
years, n373 and it appears that both Depo-Provera treatment and counseling, if available, terminate at the end of the
parole period. n374
The length of the parole period obviously will present serious problems since the offender could potentially
become just as dangerous as he was before incarceration. It seems that some provision must be included allowing for
extended parole periods. This is not necessarily a major obstacle, as New York has a statute that provides for lifetime
probation of recidivist drug offenders. n375 Perhaps California can follow this example with its parole regulations.
Another issue that has not been addressed deals with the fact that 645 begins upon parole. If the offender does not
wish to submit to chemical or surgical castration, he can simply decline parole. n376 Although this will mean finishing
the remainder of his prison term, upon release, the state theoretically has no authority over him and [*341] cannot
impose conditions on his release. While it remains to be seen how many offenders would actually take this route, as of
now, it appears the option is available.
On a more practical issue, it is unclear from the language of 645 how the weekly Depo-Provera injections will be
administered to the released offenders. Because the effects of Depo-Provera are temporary, lasting only seven to ten
days, n377 it is essential that some enforcement mechanism is used to ensure the offender will report each week. A
report by the Office of Psychohormonal Research at Johns Hopkins School of Medicine stated, "it is imperative that
there be strict, failsafe [sic] supervision of the patient, should he eventually leave the prison system, regarding
compliance in obtaining treatment, until such time as it is legally terminable." n378 Because the imposition of
Depo-Provera is made a condition of parole, it seems likely that any failure to appear for treatment would result in
revocation of parole and a return to jail.
In the case of the repeat offender released and on Depo-Provera, it might be advisable to create tighter monitoring
systems, at least at the early stages of release, so it is easier to pick them up if they violate conditions of parole. The
parolees should also be tested periodically for synthetic hormones (steroids), which they could obtain in an attempt to
restore their sexual abilities and libido. Although synthetic hormones do not adversely effect Depo-Provera treatment,
n379 the fact that the offender attempted it should show that he is not satisfied with his reduced sex drive and may still
be a danger to the public.
C. State Liability to Those Castrated
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