united-states constitutional-law eighth-amendment
How is chemical castration defended in regards to the 8th amendment?
<p>The 8th amendment prevents cruel and unusual punishments for crimes. How is forcing sex offenders to get chemically castrated not in violation of this law?</p>
<p>This punishment seem cruel and unusual to me.</p>

<p>So long as a punishment is expressly authorized by statute as punishment for a crime, and approved in a conviction after a trial, in which there is a right to a jury, states have broad discretion to authorize punishments, and &quot;corporal punishment&quot; (i.e. punishment involving harm to the physical body of the convicted criminal) isn't categorically forbidden.</p>
<p>Indeed, corporal punishment in the context of military justice, which is in theory subject to the 8th Amendment, is routine.</p>
<p>Generally speaking, states have been afforded extremely broad discretion under the 8th Amendment, although prohibitions on specific types of punishments have been established by case law more often than prohibitions on disproportionate punishments.</p>
<p>For example, the courts have not categorically prohibited solitary confinement, even in cases where it persists for more than a decade, with very little due process or review, in the discretion of prison officials, and without express authorization as a punishment different in kind from ordinary incarceration, from a jury or a sentencing statute. Yet, it is not hard to argue that a very long period of solitary confinement, or a life in prison without parole sentence for shoplifting for someone with three prior felony convictions (both of which have withstood 8th Amendment challenges) are far more cruel.</p>
<p>Cruelty has largely been construed to involve gratuitous infliction of pain for no legitimate criminal justice related reason, but in the case of chemical castration, preventing recidivism (which the limited available data suggests that this is very effective at doing), would be a legitimate criminal justice related reason, and chemical castration would not generally involve significant infliction of pain in the act of doing it.</p>
<p>This said, while there is a great deal of academic literature on the topic, mostly arguing that it does indeed violate the 8th Amendment, <em>see, e.g.</em> <a href="https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3378&amp;context=flr" rel="nofollow noreferrer">here</a>, and <a href="https://scholarship.law.ufl.edu/facultypub/215/" rel="nofollow noreferrer">here</a>, there is a dearth of case law on point to support that argument.</p>
<p>Chemical castration laws are on the books and have not been struck down in <a href="https://www.vox.com/identities/2019/6/11/18661514/alabama-chemical-castration-bill-kay-ivey-effects" rel="nofollow noreferrer">at least eight states</a>, some of which, like California's have been on the books since 1996 (more than 25 years ago). Also, as more states enact laws authorizing the punishment, the claim that this punishment is &quot;unusual&quot; which is part of the cruel and unusual analysis, is undermined.</p>
<p>In part, these statutes have escaped review or being struck down because the convicted offender, especially in the earlier statutes, often has to consent to the treatment in exchange for leniency on some other aspect of a sentence that has withstood 8th Amendment review. But, the fact that a significant number of convicted offenders have now consented to this punishment under laws where it is a choice, when it was voluntary in a given state, in order to obtain other favorable treatment in the criminal justice system, also mitigates against a determination that this is an 8th Amendment violation.</p>
<p>Certainly, &quot;This punishment seem cruel and unusual to me,&quot; is not the relevant legal standard. But, this issue is still not definitively resolved. And, certainly, given the 6-3 conservative majority on the U.S. Supreme Court, it seems unlikely that a nation rule prohibiting this punishment as a matter of constitutional law will be imposed by the U.S. Supreme Court at this time.</p>
