If you were convicted of a drug crime, would you choose between jail time and the ability to have children? This might seem a faux choice, but this is the choice that repetitive criminal defendants in White County, Tennessee face. On May 15, 2017, Judge Sam Benningfield signed an order allowing inmates to receive 30 days credit towards jail time if they would agree to undergo a birth control procedure. Women could “volunteer” for a free Nexplanon implant while men can “volunteer” for a free Vasectomy, a procedure which surgically prevents men from releasing sperm.
Judge Benningfield justifies the option by saying: “I hope to encourage them to take personal responsibility and give them a chance, when they do get out, to not to be burdened with children. This gives them a chance to get on their feet and make something of themselves.” District Attorneys and the ACLU have voiced their objections to what they see as an immoral and potentially illegal choice.
The Dark Past of Compulsive Birth Control
Judge Benninfield is not the first judge to suggest that inmates might be subjected to birth control. In 1927, the Supreme Court legalized compulsory sterilization of the unfit; particularly people deemed “intellectually unfit,” i.e. the mentally ill and those considered retarded. The Buck case opened the door for eugenics and forced sterilization in the United States. Before Buck, only California permitted forced sterilization. Afterwards, many states began legalizing sterilization on prisoners. The practice lost support after Nazi Germany revealed where this line of thinking ended. Subsequently, in 1942, the Supreme Court ruled that a law requiring forced sterilization violated the 14th amendment because it excluded white-collar crimes. However, the original 1927 case which permits legal sterilization was not officially overturned and thus remains “good law” today.
Tennessee’s law is more merciful than the original sterilization laws of the 1920’s and 1930’s. Defendants have a choice of staying in jail for another month or getting out early if they agree to a birth control procedure, a far cry from the forced sterilization which occurred last century. The rationale is also different; where the eugenics of the 20th century believed that crime was in the genes, Judge Benninfield believes birth control would allow defendants to build a stable life without the burden of children that impulsive sex might create.
Despite these differences though, Judge Benninfield’s practices should not be legal. First, why are drug crimes singled out? The 1942 Skinner case struck down a law for an Equal Protections violation because it excluded white-collar crimes. The same logic could be applied here; why are drug crime defendants given this preferential option when sex criminals are not? Although Judge Benninfield’s logic is not based on eugenics and genes like the sterilization proponents of last century, the Judge’s logic seems rooted in assumptions about drug crime defendants. Benninfield’s experience in the courtroom might lend itself to the conclusion that drug users will have babies they cannot take care of, but it is hardly an established fact that an entire county can base public policy on.
Second, the state should not promoting a “choice” where a citizen can lose a fundamental right. A choice implies free will, but if the defendants face jail time, free will is probably already removed from the equation. After Griswold and Roe vs. Wade, privacy and reproduction were established as fundamental rights. Citizens cannot be forced to choose between additional jail time and losing a fundamental right. Even if Judge Benninfield doesn’t believe there is any coercion here, the mere perception of state coercion ought to be enough to shut this program down. This is not to say that a defendant who is older and does understand the consequences of
Third, it is not a judge’s responsibility to instill personal responsibility in a defendant. Judges are not life coaches. Judges are supposed to apply the law to a case and then determine whether the law is being complied with. Everything else is potentially legislating and should be left to the actual legislatures. Even if it were part of a judge’s role to promote personal responsibility, offering state sanctioned birth control is not a form of personal responsibility. Personal responsibility, in part, means accepting the consequences of your actions. Shrinking jail time or not having a child after unprotected sex is skirting personal responsibility, not promotion of personal responsibility.
Why Are the Guys Given More Severe Birth Control?
There is also an equal protection issue based on sex. While women are given Nexplanon, men undergo a Vasectomy. For those not well-versed in birth control procedures, Nexplanon is a type of hormone inserted in a woman’s arm that creates a wall around the woman’s eggs, preventing sperm from entering the egg. Nexplanon is good for about four years, when the effects expire.
Vasectomy, on the other hand, is a surgical procedure where a vessel near a man’s testicle is surgically cut, thereby preventing the man from releasing sperm when he has an erection. Vasectomy is considered permanent birth control, although there are some procedures which can reverse it. An appeal court should ask, why are women given a temporary form of birth control while the men are subject to a more permanent one? There is no reasonable justification why one sex is given a more permanent form of birth control when the crimes are all similar. Although the differences between male and female bodies might demand different types of birth control, one sex should not be subjected to a more permanent form then the other sex.