Is female sterilization OK or creepy?

(CNN) — Recently, Nashville’s district attorney banned prosecutors from offering female sterilization in plea deals. Believe it or not, Nashville prosecutors have offered this option four times in the past five years.

There has been public outrage at the notion that a defendant in America in 2015 would be offered a choice of sterilization as part of a plea deal.

Except, it happens all the time.

Some have claimed this practice “evokes a dark corner of American history” where the mentally ill or “deficient” were forced to undergo sterilization.

Yeah, that’s true. We did that. And it was bad. Except this isn’t quite that.

Female sterilization is linked to the controversial “eugenics” movement, which advocated for the notion that the human race can be improved by selective breeding of people with superior genes.

There is even a 1927 Supreme Court case, Buck v. Bell, in which the justices ruled that a state statute permitting compulsory sterilization of the unfit and “imbeciles,” “for the protection and health of the state,” was constitutional. The opinion in the case is stunning, especially because the Supreme Court has never technically overruled it. But Buck v. Bell dealt with involuntary sterilization of people because of their mental disabilities, not because they were being punished for a crime.

You can hate sterilization, and the Tennessee case may have the creepy feel of the antiquated practice of eugenics, but it’s not that. Present-day sterilization plea deals involve a voluntary choice of sterilization by persons accused of a crime, and for whom sterilization will be part of their punishment.

Others may argue that the Supreme Court has already spoken on the issue of compulsory sterilization as punishment, and struck it down. That’s true too, sort of.

In Skinner v. Oklahoma, the court struck down a law permitting compulsory sterilization of criminals as unconstitutional, but not because it was cruel and unusual. Instead, the law was struck down because the law was unequally applied for similar crimes.

So the question remains: Is sterilization as a punishment unconstitutional?

The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Practically, however, punishments are rarely deemed cruel and unusual by the judiciary. We have executed people with hangings and by firing squad. Sterilization has to be somewhere below that, right? Ultimately, however, the constitutionality of sterilization may be a red herring in this analysis, because it appears that even if a punishment violates the Constitution, it is permissible, if you willingly choose it.

Suppose arguendo (for argument’s sake) that sterilization is judicially labeled a cruel and unusual punishment, violating the Eighth Amendment. This is where it gets interesting: It still might be an appropriate and constitutional part of a plea deal. Shocked? You shouldn’t be.

As citizens, we validly waive our constitutional rights all the time. You waive your Fourth Amendment protections against search and seizure when you answer “yes” to an officer’s “Mind if I look in your trunk?” You waive your Fifth Amendment privilege against self-incrimination when you try to explain to the detective in the interrogation room how that body got in your vehicle’s trunk. So then, if we can validly waive our other constitutional rights, can we waive our Eighth Amendment rights and choose a cruel and unusual punishment, .even if it would otherwise be unconstitutional? And are people outraged because this is a new step in punishment or a new frontier and a slippery slope in the world of plea deals?


Sterilization statutes have been around for a while as punishment for defendants all over the country, and defendants have willingly chosen the procedure.

If sterilization plea deals are likely constitutional, and we’ve been doing it for a while, then that begs the question: Why the outrage now? Why the story that a Tennessee prosecutor was fired for a plea bargain that appears to be widely practiced?

There are really only two possibilities. First, some people just had no idea that this was going on until this story hit the news. Second, even if we knew about it, we didn’t mind the practice until now because of one fundamental difference.

Most of the sterilization defendants are men.

Search your feelings, Luke. When we talk about castrating men who are recidivist sexual predators and child molesters, the idea of castration as punishment doesn’t sound so bad right? Be honest: Let go of your “we’re-all-equal-in-all-ways” banner for a moment. After all, not too long ago, execution was a legal punishment for nonhomicide sex crimes in some jurisdictions. So if we’re OK with the gas chamber, we’re probably OK with a snip. It’s OK. You can admit it; we are all hardwired with a modicum of gender bias, whether we like it or not.

Still not convinced? Watch this parlor trick: What if I suggested sterilization for a person convicted of having sex with a minor? So far you’re not ruling it out.

And what if it’s a young female high school teacher having sex with her 17-year-old student? Most of our gut feelings shifted from “maybe” to “no” just now. It’s OK to admit that, too. Of course, sterilization won’t prevent a female sex offender from offending again, no more than sterilization will prevent a male offender from offending again. But the point is, somehow, the notion of sterilizing a male criminal somehow sits better with us than sterilizing a female criminal.

Maybe it’s that on a primal, unconscious level, what feels cruel and unusual punishment for a woman just feels less so for a man. Even if you’re offended by this theory of why an old practice is now a “shocking” news story, you must concede it fits. Why else has castration of men not been a blip on the radar, but offering a woman the option of sterilization is suddenly a travesty? Of course, we have to consider the related justification. Overall, a lot more men commit acts that merit sterilization than do women. Just ask any domestic violence prosecutor.

Are sterilization plea deals morally right? It’s hard to say. For now, they appear to be constitutional, but controversial. If we know a mother is likely to kill or seriously hurt her current children or her unborn child, should the government step in? If so, to what degree? Fortunately, we can avoid a final decision and continue to attack the problem in a way that seems to be more acceptable for now: just keep neutering the men.

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Does Alabama law put minors seeking abortion on trial?

(CNN) — The American Civil Liberties Union is challenging an Alabama law that will force those under 18 seeking an abortion to go through an adversarial process that’s akin to a trial.

Generally, laws in the United States require parental consent for a minor to obtain an abortion. But for some children, parental consent is impossible or even dangerous. This class of minors must seek a judicial bypass. While the bypass is a common feature of abortion laws in other states, this Alabama law may have gone too far. Here are the suspect provisions of this “bypass by trial”:

  • Alabama has turned what is supposed to be an informal, child-centered hearing into more of a trial.
  • The court can appoint a Guardian ad Litem — normally an appointed lawyer for a child in, say, a divorce proceeding or a hearing involving unfit parents — for the fetus.
  • The minor may be cross-examined by the district attorney and possibly the minor’s parents.
  • Information about the minor’s pregnancy may be disclosed to her family, friends and employers, and they might even be brought to court to testify — against the minor.

When it comes to abortion, minors are supposed to enjoy the same constitutional right of privacyas adults, free from undue state interference. However, the Supreme Court has also specifically articulated reasons why the constitutional rights of children are not identical to the rights of adults. Children are vulnerable and unable to make critical decisions and, of course, parents have a right to participate in raising their child.

States may pass laws that subject minors seeking an abortion to an additional requirement: parental involvement. However, if the state chooses to require parental consent for a pregnant minor to get an abortion, the state also must provide an alternative procedure for obtaining that authorization — one that “bypasses” having to get Mom and Dad’s permission.

The Supreme Court has required that these hearings “must assure that resolution … be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained.” Plus, and perhaps most importantly, the procedure bypassing parental consent cannot be a thinly veiled mechanism for an “absolute, and possibly arbitrary, veto.” In plain language, hearings must be quick and quiet, and they cannot be held in kangaroo court.

The problem is, this does not give a lot of detailed direction to courts about how exactly to conduct these hearings. It’s not surprising that court procedures vary wildly, and that sooner or later, a state like Alabama would experiment with state abortion law. Our system was specifically designed to allow states to experiment with social and economic legislation. Of course, that state prerogative is also tempered by a federal court’s power to strike these laws down if they are unconstitutional.

In this case, the ACLU’s position is that creating an adversarial hearing goes too far. A hearing is fine, it seems, but something approaching a trial rises to the level of an impermissible “undue burden” on the right to have an abortion. This has been defined by the courts as placing a substantial obstacle in the path of the adult, or minor child seeking the abortion.

The federal court that reviews these state statutes will be charged with determining whether Alabama’s law violates established Supreme Court bypass requirements.

But what about the actual bypass requirements themselves? They are a creation of the Supreme Court. Striking down an act of a state legislature is one thing — challenging settled Supreme Court precedent is entirely another.

What if the constitutional standards for bypass procedures contain something of an intrinsic paradox? Consider how it applies in this case.

In Alabama, a judge at one of these hearings is required to waive the parental consent requirement if the judge finds either:

  1. that the minor is mature and well-informed enough to make the abortion decision on her own; or
  2. that performance of the abortion would be in the best interest of the minor.

Abstract concepts like “mature” and “best interest” are rather amorphous at best. (True story: A respected law professor advised many classes of students that when confronted on the bar exam with a question about a child, do the following: Write “best interest of the child” somewhere in the first sentence; then write “whatever the heck you want” for the rest of the answer.)

So then, the court must determine whether the minor is mature — mature enough that she may have the court’s permission to have an abortion. This means the court can then arrive at this Kafkaesque, perplexing alternative: A particular minor is too immature to have an abortion — with the result being that this immature minor … should therefore be … a parent of an infant? It gets stranger: What about a finding that it is in the best interest of the young mother to have the baby, even though she is deemed too immature to have an abortion? How would it be in the best interest of the immature mother to have a child?

State courts and legislatures are not completely to blame; after all, the law of minors and juveniles is always going to be about some difficult but arbitrary line-drawing. Whether we’re considering the drinking age, the driving age or the voting age, we’ve learned over the centuries that kids mature at different ages. Plus there is no easy legal formula to address the myriad situations of messed-up families.

Unfortunately, legislatures must draw some lines — lines that will not always be workable in every situation. And there are surely situations where the bypass might actually be effective: for example, a very young pregnant minor with completely absent parents, who needs court intervention. The problem is, if it creates an undue burden in one situation, then it’s constitutionally suspect.

But ultimately, building up the procedural hurdles for a pregnant minor almost by definition encroaches upon the limits set some time ago by the Supreme Court. It’s a procedure that needs to be defined; teen pregnancy certainly isn’t going anywhere anytime soon. Neither are lousy families, unfortunately. Whether the boundary lines of judicial bypass ebb toward the autonomy of minors, or back toward the state interest in the fetus, the broader social “findings” of judicial bypass proceedings will always remain the same: It’s all very sad.

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Snakes and church vs. state

(CNN) — The recent death of the “snake-handling” pastor of a small Pentecostal church in Kentucky has raised an age-old conflict between church and state.

Jamie Coots, the pastor of the Full Gospel Tabernacle in Jesus Name in Middlesboro, Kentucky, died after being bitten on his right hand by a rattlesnake during a weekend church service where he was handling rattlesnakes willingly, it seems.

It has been reported that the late pastor’s son Cody Coots has continued the snake-handling tradition even after his father’s death.

People handle snakes at church for the same reason that people do lots of things: the Bible tells them so.

“And these signs shall follow them that believe; In my name shall they cast out devils; they shall speak with new tongues; They shall take up serpents; and if they drink any deadly thing, it shall not hurt them; they shall lay hands on the sick, and they shall recover.”
Mark 16:17-18

This biblical passage is the genesis of serpent-handling for churches of the Holiness movement and the Pentecostal Church of God. For the faithful, those two verses are the authority for dancing with or passing around poisonous snakes during church services. Moreover, if bitten, they are likely to refuse medical treatment and rely upon God to heal them. There’s just one problem with this Biblical authority. Another authority, known as the Commonwealth of Kentucky.

In Kentucky, the practice is illegal.

Well, barely.

Under the applicable section KRS §437.060, any person who displays, handles or uses a snake in connection with any religious gathering shall be fined $50 to 100. Hardly a capital offense. The Kentucky legislature has sent a message: poisonous snake-handling is marginally illegal — but not as illegal as drugs or other crimes. The legislature’s assigned penalty appears to fall somewhere between a speeding ticket and an overdue library book.

This illegal practice persists so openly that a reality TV show flouts the law by filming a crime in progress. When a network has a series based primarily on filming people breaking the law in your state, it’s fair to say your law has lost some of its bite.

Ultimately, the issue is whether a state even has authority to regulate a practice that is primarily faith-based. The First Amendment to the United States Constitution declares “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The 14th Amendment, in turn, prohibits state legislatures from doing the same.

However, equally as formidable is the state’s constitutionally reserved “police power.” The name itself is a misnomer; the power is much more than your local police officer’s ability to make an arrest. The states’ traditional police power is their exclusive authority to regulate the public health, safety and morals of their residents.

Kentucky’s authority to outlaw snake-handling derives from this police power. The issue here is whether a state has the power to regulate religious activity; so the two constitutional authorities meet head-to-head.

In Jones v. City of Opelika, the Supreme Court addressed the conflict between freedom of religion and the police power of a state.

The court articulated an important but still misunderstood concept about religious freedom: the First Amendment embraces two distinct concepts — the freedom to believe and the freedom to act.

The first is absolute, but the second cannot be absolute. This makes sense.

Your thoughts alone, without speech or any action, are never criminal, even if of the most prurient, vile nature (at least for now — once Apple figures out an app to download your thoughts, they may someday be criminalized).

Your conduct, on the other hand, can be regulated for the protection of society. While citizens of the United States have an unlimited right to our religious beliefs, our right to act within those beliefs is tempered by a state’s duty to protect its citizens.

In Lawson v. Commonwealth, Kentucky’s Supreme Court considered a direct challenge to its snake-handling statute, using the guidance of the Supreme Court in the Jones case. The court held that the state could properly regulate the time, place and manner of religious exercise — such as passing snakes around at church — where the regulation is necessary for the safeguarding of the health, good order and comfort of the community.

Legally, Kentucky’s interest in protecting its residents outweighs a Kentuckian’s interest in celebrating his religion by handling rattlesnakes. According to the courts, the state can prohibit this practice.

But Kentucky still barely criminalizes the practice. Handling poisonous snakes is potentially more dangerous than other regularly prosecuted activities, such as drug use. Ask yourself: Would you rather your child be at a party where someone is passing around a water bong or a water moccasin?

Whatever the reason for not aggressively prosecuting the already-illegal practice, the fact is that it presents a known danger. Kentucky is one of the states that has seen fit to criminalize the practice, and it has the power to do so.

Unfortunately, if Kentucky doesn’t exercise its police power and impose stricter penalties, then the snakes will continue to impose their own punishment, which is often the death penalty.

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Should American Samoans be citizens?

(CNN) — The United States laid claim to these eastern islands of a South Pacific archipelago in 1900, and since that time, American Samoans have served in the U.S. military, including the wars in Iraq and Afghanistan.

Yet, those born in American Samoa receive passports declaring the holder is only a U.S. national, not a U.S. citizen. Noncitizen residents complain they are unable to vote in national elections or to work in jobs that require citizenship status. They also claim their birth status renders them ineligible for federal work-study programs in college, firearm permits and travel/immigration visas.

If they want to become citizens, American Samoans must relocate to another part of the United States to initiate the naturalization process, pay a $680 fee and be subjected to a moral character assessment, fingerprinting and the English/civics examination. Quite a process to become citizens of the nation that they consider their home.

American Samoans indeed have every right to be frustrated.

However, they have zero legal right to be U.S. citizens.

While it’s true that they would likely win their case in nearly every court of public opinion, they will ultimately lose in all the courts that count: actual courts of law. As with many things, when it comes to citizenship, little is guaranteed to residents of the Territories.

American Samoans have challenged federal laws and policy that decline to grant citizenship. The federal district court in the District of Columbia granted the government’s motion to dismiss the lawsuit, but the D.C. Circuit, the appellate court, is giving the American Samoans another chance to argue their case.

The last American frontier

The U.S. Territories are the last American frontier. They are as rugged as the Wild West and arguably as picturesque. Because of patchwork governance and varying isolation from the mainland, their outward appearances run the gamut: from teeming, vibrant quasi-state to desolated, sun-blasted rock, all scattered to the corners of the globe. ​

So what of the residents of these Territories? They are people like you or me. Are they U.S. citizens? Or — like the soil on which they live — are they considered another “possession” of the United States?

The short answer is: They are whatever Congress wants them to be. Whether that sounds fair or not, there’s little to dispute legally.

Territorial residents are not without any constitutional protections. The Supreme Court defined the extent to which the Constitution applies in Territories in a series of cases known to those of us who live or work in the Territories as the Insular Cases. These cases held that only specific “fundamental” constitutional rights are guaranteed to Territorial inhabitants.

The question then is whether the Citizenship Clause of the 14th Amendment applies to American Samoans. The Citizenship Clause provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

American Samoa is certainly “subject to the jurisdiction” of the United States. But residents must also be born “in the United States” for the constitutional right to attach. Unfortunately, for 14th Amendment citizenship purposes, the Territories have never been considered “in the United States.”

No federal court has ever recognized birthright citizenship as a guarantee in unincorporated Territories. In fact, federal courts have held on many occasions that unincorporated Territories are not included within the “United States” for purposes of the Citizenship Clause. Because these residents have no Constitutional, automatic right to citizenship, Congress can pick and choose how they become citizens. In fact, it has done just that: granting citizenship at birth to residents of other Territories.

For example, residents of Puerto Rico and the U.S. Virgin Islands are citizens if born there. But that citizenship does not flow from any constitutional right. Rather, Congress has chosen to pass independent legislation giving those residents citizenship.

Indeed, Justice Ruth Bader Ginsburg of the Supreme Court observed in one opinion that the only remaining noncitizen nationals are residents of American Samoa and Swains Island. When it comes to citizenship in the Territories, Congress can giveth or it can choose not to giveth, and the Constitution gives those residents no recourse.

Annexation and inconvenience?

The public policy is clear. Courts have been reluctant to force Congress to grant citizenship to persons merely because the U.S. has annexed their homeland. Courts and the legislature alike cite the practical inconvenience to the federal government.

The theory: If the practice of acquiring Territories required endowing the inhabitants with citizenship of the United States, this would be too great an inconvenience to the government. Then again, imagine the inconvenience to the newly annexed inhabitants who suddenly find themselves without citizenship anywhere.

American Samoans have fought in our armed services for over a century, so it feels fundamentally unfair that they get short shrift when it comes to citizenship. The problem is, fairness cannot overcome the language of the Constitution and centuries of legal precedent.

Fair or not, American Samoans will likely lose this legal battle, even though the Court of Appeals has given them a glimmer of hope and a second chance, of sorts. Citizenship for them is not a constitutional right; it cannot be grafted onto them by any court.

Only Congress can choose to grant citizenship to Territorial inhabitants.

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