[*] Legislative Staff Counsel, American Civil Liberties Union, Tallahassee, Florida. B.A., Vanderbilt University, 1964; J.D., Vanderbilt University, 1967; LL.M., Southern Methodist University, 1968. Law Clerk to the Honorable Irving L. Goldberg, United States Court of Appeals for the Fifth Circuit, Dallas, Texas 1967-68. The author gratefully acknowledges the research assistance of Joshua A. Munn, Boca Raton, Florida, a second-year law student at Stanford University and intern for the ACLU of Florida during the summer of 1997. Return to text.

[1] See, e.g., Kimberly A. Peters, Comment, Chemical Castration: An Alternative to Incarceration, 31 DUQ. L. REV. 307, 308-09 (1993) (describing the historical uses of castration). Return to text.

[2] See generally id.; Karl A. Vanderzyl, Comment, Castration as an Alternative to Incarceration: An Impotent Approach to the Punishment of Sex Offenders, 15 N. ILL. U. L. REV. 107, 109-13 (1994) (describing the eugenics movement of the early twentieth century in the United States); Sheldon Gelman, The Biological Alternative Cases, 36 WM. & MARY L. REV. 1203, 1203-15 (1995) (chronicling the Supreme Court's treatment of four types of biological alteration controversies); Connie S. Rosati, A Study of Internal Punishment, 1994 WIS. L. REV. 123, 165-66 (1994) (presenting a philosophical discussion of the effort to move from voluntary choice to involuntary imposition of drug therapy); Stacy Russell, Comment, Castration of Repeat Sexual Offenders: An International Comparative Analysis, 19 HOUS. J. INT'L L. 425, 438-40 (1997) (discussing the international history and debate over the use of chemical castration). Return to text.

[3] Act effective Oct. 1, 1997, ch. 97-184, § 1, 1997 Fla. Laws 3455 (codified at FLA. STAT. § 794.0235 (1997)). Return to text.

[4] The term "chemical castration" was first used in reference to a punitive measure for sex offenders in 1982 by the Arizona Supreme Court. See State v. Christopher, 652 P.2d 1031, 1031 (Ariz. 1982) (explaining a probationary treatment alternative recommended by a psychiatrist, but not ordered by the trial court). The media also described the court-imposed administration of medroxyprogesterone acetate (MPA) to sex offenders as "chemical castration." See Margaret Talev, Reaction Mixed on Chemical Castration, TAMPA TRIB., June 1, 1997, § 2, at 1. Return to text.

[5] Medroxyprogesterone acetate (MPA) is a synthetic progesterone more commonly known as the female contraceptive Depo-Provera, the brand name used by the manufacturer, the Upjohn Company. See PHYSICIANS' DESK REFERENCE 2083 (51st ed., 1997). Return to text.

[6] See FLA. STAT. § 794.0235 (1997). The statute provides that the court "[s]hall sentence a defendant to be treated with medroxyprogesterone acetate (MPA), according to a schedule of administration monitored by the Department of Corrections, if the defendant is convicted of sexual battery as described in s. 794.011, Florida Statutes." Id. § 794.0235(1)(b). Notably, the statute holds that "in lieu of treatment with . . . (MPA), the court may order the defendant to undergo physical castration upon written motion by the defendant providing the defendant's intelligent, knowing, and voluntary consent to physical castration as an alternative penalty." Id. Return to text.

[7] See id. § 794.0235(1)(a). Return to text.

[8] See T. Christian Miller, Chemical Castration for Rapists Gets Committee Okay, ST. PETE. TIMES, Mar. 26, 1997, at B7; Gordon Russell, Bills Would Allow Chemical Castration, SARASOTA HERALD TRIB., Apr. 2, 1997, at A1; see also Kenneth B. Fromson, Comment, Beyond an Eye for an Eye: Castration as an Alternative Sentencing Measure, 11 N.Y.L. SCH. J. HUM. RTS. 311, 331 (1994) (arguing that castration is a creative sentencing alternative that is necessary to alleviate the growing sexual offense rate in the United States). Representative Mark Ogles (Repub., Bradenton), who introduced House Bill 83, and Senator Anna Cowin (Repub., Leesburg), who sponsored Senate Bill 774, believe that the new law will greatly decrease the number of repeat sex offenses in Florida. See Miller, supra; Russell, supra. Return to text.

[9] See Sandra G. Boodman, Does Castration Stop Sex Crimes?: An Old Punishment Gains New Attention, but Experts Doubt Its Value, WASH. POST, Mar. 17, 1992, Weekly Journal of Medicine, Health, Science and Society, at 7. Return to text.

[10] See ACLU OF FLA., ACLU POSITION STATEMENT ON CHEMICAL CASTRATION (on file with the ACLU of Florida, Tallahassee, Fla.) [hereinafter ACLU POSITION STATEMENT]; Dana Peck, Chemical Castration Advances: Senate Panel OKs Rape Punishment, FLA. TIMES- UNION, Mar. 26, 1997, at B3. Return to text.

[11] See Vanderzyl, supra note 2, at 109-13. Return to text.

[12] See, e.g., Skinner v. Oklahoma, 316 U.S. 535, 536 (1942) (striking down an Oklahoma statute that authorized the sterilization of recidivist criminals). Although Skinner is often cited as the leading case on sterilization, the Court did not address castration as a constitutionally impermissible, barbarous punishment. Instead, the Court held that the Oklahoma law permitting the sterilization of habitual criminals violated the Equal Protection Clause of the Fourteenth Amendment. The state law invidiously discriminated against the indigent by exempting defendants who had repeatedly been found guilty of white collar crimes. See id. at 537. However, other courts have held that surgical castration is cruel and unusual punishment. See State v. Brown, 326 S.E.2d 410, 412 (S.C. 1985) (holding that surgical castration is a form of mutilation and, therefore, cruel and unusual under the South Carolina Constitution); Davis v. Berry, 216 F. 413, 417 (S.D. Iowa 1914), rev'd on other grounds, 242 U.S. 468 (1917) (striking down an Iowa statute authorizing vasectomies for repeat felons as violative of the Eighth Amendment prohibition against cruel and unusual punishment because vasectomies, like castration, inflict shame, humiliation, degradation, and mental torture on the defendant); Whitten v. State, 47 Ga. 297, 302 (1872) (explaining that the Cruel and Unusual Punishment Clause of the Eighth Amendment was intended to prohibit barbaric penal practices, such as quartering, hanging in chains, and castration). Return to text.

[13] See Russell, supra note 2, at 439-40 (noting that knowledge of Nazi experimentation with castration and sterilization caused the public to disfavor these procedures as a means to adjust criminal behavior). Return to text.

[14] See William L. Baker, Castration of the Male Sex Offender: A Legally Permissible Alternative, 30 LOY. L. REV. 377, 379, 386 (1984). In 1966, researchers at the Biosexual Psychological Clinic of Johns Hopkins Hospital began conducting some of the first pharmacological studies of chemical castration in the United States. These studies served as a catalyst for laws providing for the chemical castration of sex offenders in this country. See William Green, Depo-Provera, Castration, and the Position of Rape Offenders: Statutory and Constitutional Issues, 12 U. DAYTON L. REV. 1, 5 (1986). California and Louisiana have chemical castration statutes. See CAL. PENAL CODE § 645 (West 1997); LA. REV. STAT. ANN. § 15.538(C) (West 1997). In addition, in 1996 and 1997, chemical castration bills were introduced in Alabama, Arizona, Colorado, Hawaii, Michigan, Mississippi, Missouri, New Jersey, New York, Oregon, and Tennessee. See S. 116, 1st Spec. Sess. (Ala. 1997); H.R. 8, Reg. Sess. (Ala. 1997); H.R. 2216, 43d Leg., 1st Reg. Sess. (Ariz. 1997); H.R. 1133, 61st Leg., 1st Reg. Sess. (Colo. 1997); S. 215, 19th Leg. (Haw. 1997); H.R. 4307, 89th Leg., Reg. Sess. (Mich. 1997); S. 2465, Reg. Sess. (Miss. 1997); H.R. 753, 89th Leg., 1st Reg. Gen. Assembly (Mo. 1997); S. 1568, 207th Leg., 1st Ann. Sess. (N.J. 1996); S. 4925, 220th Leg., Ann. Sess. (N.Y. 1997); H.R. 3672, 69th Leg. Assembly (Or. 1997); H.R. 482, 100th Gen. Assembly (Tenn. 1997); H.R. 483, 100th Gen. Assembly (Tenn. 1997); H.R. 585, 100th Gen. Assembly (Tenn. 1997); S. 1152, 100th Gen. Assembly (Tenn. 1997); S. 1153, 100th Gen. Assembly (Tenn. 1997). Return to text.

[15] See People v. Gauntlett, 352 N.W.2d 310, 313 (Mich. Ct. App.), modified, 419 N.W.2d 909 (Mich. 1984), appeal after remand, 394 N.W.2d 437 (Mich. Ct. App. 1986); Gauntlett v. Kelley, 658 F. Supp. 1483 (W.D. Mich. 1987) (denying the petition for a writ of habeas corpus), aff'd, 849 F.2d 213 (6th Cir. 1988). Return to text.

[16] See Gauntlett, 352 N.W.2d at 317 (explaining that the administration of MPA to sexual offenders had not gained acceptance in the medical community as a safe and effective use for males). Return to text.

[17] See Act of Sept. 17, 1996, ch. 596, § 2, 1996 Cal. Stat. 92 (codified at CAL. PENAL CODE § 645 (West 1997)); see also Note, Constitutional Law—Due Process and Equal Protection—California Becomes First State to Require Chemical Castration of Certain Sex Offenders, 110 HARV. L. REV. 799, 799 (1997) [hereinafter Harvard Note]. Return to text.

[18] See Act effective Oct. 1, 1997, ch. 97-184, § 1, 1997 Fla. Laws 3455, 3456 (codified at FLA. STAT. § 794.0235 (1997)). Return to text.

[19] See FLA. STAT. § 794.0235(1)(a) (1997). Return to text.

[20] See id. § 794.0235(1)(b). Return to text.

[21] See id. § 794.0235(2)(a). Although the new law does not contemplate that a defendant will receive the MPA treatment until one week prior to his release from prison, the medical determination of "appropriate candidate for treatment" must be made no later than 60 days after the imposition of sentence. Id. Thus, the law provides for a medical diagnosis that could have a profound impact on an individual's health to be made, in most instances, years before the treatment is actually administered. See id. It is difficult to imagine that any competent health care professional would be willing to testify at an adversarial hearing on her diagnostic report that a defendant will be an "appropriate candidate for treatment" at some future date, possibly years in advance. Return to text.

[22] See id. This section of the statute clearly demonstrates the law is punitive, not therapeutic. Imagine a judge ordering someone to participate in a biological experiment for an indefinite period of time, to begin at some unspecified future date, based upon a diagnosis that as of today, with no guarantees about next month or next year, that individual is an appropriate candidate for the administration of the drug. Return to text.

[23] See id. § 794.0235(3). The statute does not state whether the physicians who administer the drug shall be state employees or private physicians operating under an employment contract. This decision will be made by the DOC. The DOC has the authority to adopt administrative rules applicable to the statute. See id. § 120.54; id. § 944.09. Return to text.

[24] See FLA. STAT. § 794.0235(5)(a)-(b). Return to text.

[25] See id. § 794.0235(1)(b). Return to text.

[26] See id. Return to text.

[27] See Douglas J. Besharov & Andrew Vachs, Sex Offenders: Is Castration an Acceptable Punishment?, A.B.A. J., July 1992, at 42, 42. Return to text.

[28] See Peters, supra note 1, at 309. Return to text.

[29] See supra note 5. Return to text.

[30] See Green, supra note 14, at 5 n.23. Return to text.

[31] See George R. Huggins & Anne Colston Wentz, Obstetrics and Gynecology, 270 JAMA 234, 235 (1993) (tracing the turbulent history of MPA approval in the United States). Until 1992 MPA was banned in the United States for use as a female contraceptive because of concerns linking the drug to breast and uterine cancer. See id. Return to text.

[32] See Edward A. Fitzgerald, Chemical Castration: MPA Treatment of the Sexual Offender, 18 AM. J. CRIM. L. 1, 3 (1990). Return to text.

[33] Id. at 6. It is important to note that the FDA does not approve of or regulate the use of MPA for chemical castration. Thus, while it is technically correct for proponents to claim that the drug is not experimental, those in opposition have a valid argument that the use of MPA to control the male sex drive is the latest development in a long tradition of dangerous experimentation by psychiatrists and clinical psychologists with biodeterministic and reductionist views of human sexuality. See Daniel C. Tsang, Policing Perversions: Depo-Provera and John Money's New Sexual Order, 28 J. HOMOSEXUALITY 397, 402 (1995). Return to text.

[34] See Raymond A. Lombardo, California's Unconstitutional Punishment for Heinous Crimes: Chemical Castration of Sex Offenders, 65 FORDHAM L. REV. 2611, 2613 (1997); Tsang, supra note 33, at 399. In adult males, studies have proven that the prolonged use of MPA can reduce testosterone to the level of a prepubescent boy. See id. Return to text.

[35] See Fitzgerald, supra note 32, at 6-7; Fred S. Berlin & Carl F. Meinecke, Treatment of Sex Offenders with Antiandrogenic Medication: Conceptualization, Review of Treatment Modalities, and Preliminary Findings, 138 AM. J. PSYCHIATRY 601, 603 (1981). Return to text.

[36] See Fitzgerald, supra note 32, at 5; Daniel L. Icenogle, Sentencing Male Offenders to the Use of Biological Treatments: A Constitutional Analysis, 15 J. LEGAL MED. 279, 285, 288-93 (1994). Paraphiliacs include, but are not limited to, people suffering from pedophilia, exhibitionism, fetishism, sadism, and other psychosexual disorders, including some forms of rape. See Fitzgerald, supra note 32, at 5. The medical community considers paraphilia to be a psychiatric syndrome. See Berlin & Meinecke, supra note 35, at 603. The success of MPA treatment is, according to studies, contingent upon the following conditions being met: the offender must volunteer for the treatment; the offender must not have an anti-social personality pathology; the offender must not have a severe substance abuse problem; the dosage must be sufficient to suppress testosterone production; and a consenting pair-bonded partner must be available. See Fitzgerald, supra note 32, at 9 (citing Paul A. Walker et al., Antiandrogenic Treatment of the Paraphilias, in GUIDELINES FOR THE USE OF PSYCHOTROPIC DRUGS 427, 435 (Harvey C. Stancer et al. eds., 1984)). Further, "the treatment should be accompanied by psychotherapy to help the offender readjust to a new lifestyle." Id. The treatment has been successful with most paraphiliacs in controlled situations where hormone therapy was coupled with appropriate counseling. See Icenogle, supra. Recidivism rates were under five percent. See id.

As the bills proceeded through the committee process, the primary sponsors of the legislation, Representative Ogles and Senator Cowin, argued that scientific trials over the past 20 years have conclusively shown that the drug leads to a dramatic decrease in sexual thoughts and fantasies in most men. See Fla. H.R. Comm. on Crime & Pun., tape recording of proceedings (Feb. 25, 1997) (on file with comm.) (discussion of HB 83). Return to text.

[37] See Fitzgerald, supra note 32, at 4. Return to text.

[38] See FLA. STAT. § 794.0235 (1997) (sentencing a defendant to MPA injections for a number of sexual offenses, including pedophilia, committing a sexual battery that causes serious physical injury, and committing a sexual battery upon a physically or mentally incompetent person). The Florida law is broader in application than its California counterpart. See CAL. PENAL CODE § 645 (West 1997) (mandating chemical castration for child molesters only). Return to text.

[39] FLA. STAT. § 794.0235(2)(a) (1997). Return to text.

[40] See generally Fred S. Berlin, The Paraphiliac and Depo-Provera: Some Medical, Ethical and Legal Considerations, 17 BULL. AM. ACAD. PSYCHIATRY L. 233, 234-36 (1989) (advocating the use of MPA as mandatory treatment, but not as punishment, for willing sex offenders). Return to text.

[41] See id. at 236-39; Pamela K. Hicks, Castration of Sexual Offenders: Legal and Ethical Issues, 14 J. LEGAL MED. 641, 665-66 (1993) (noting opposition from the medical community on medical and ethical grounds). Return to text.

[42] Of course, there is an ethical and professional obligation for any treating physician to advise her patient of the risks of a particular treatment. Under the mandated guidelines of the Omnibus Budget Reconciliation Act (OBRA), every person receiving medication, whether Medicaid-funded or not, must be informed of the side effects. See 42 U.S.C. § 1396r-8(g)(2)(A)(ii)(I)(dd) (1994). Further, under FDA guidelines regarding experimental drugs or use of drugs, a detailed form must be completed by the patient and signed and witnessed, before the patient may receive the treatment. See 21 C.F.R. §§ 50.20, .27 (1997).

However, the circumstances are somewhat different here. The plain language of the legislation shows a clear intent to limit the defendant's choices between chemical or surgical castration. He may not refuse, if found to be an "appropriate candidate for treatment," without severe consequences. See FLA. STAT. § 794.0235(5)(a)-(b) (1997) (charging a probationer who refuses or fails to appear at the DOC for MPA treatment with a second degree felony). Return to text.

[43] See Diane Rado, Late Abortion Ban Sent to Gov. Chiles, ST. PETE. TIMES, May 2, 1997, at A1 (highlighting some viewpoints expressed in the debate on the Woman's Right-to-Know Act). Return to text.

[44] Act effective July 1, 1997, ch. 97-151, §§ 1-13, 1997 Fla. Laws 2501 (amending FLA. STAT. ch. 390 (1995 & Supp. 1996) (mandating that certain physicians provide detailed information, including a brochure with graphics, about the risks of terminating a pregnancy and the alternatives to the procedure).

Of course, there are few prisoners' rights advocacy groups compared to the numerous organizations that lobby at the Florida Capitol as part of the right-to-life movement. Moreover, legislators are aware that pro-life constituents have a strong political voice, while convicted sex offenders are not only disenfranchised, they are often a despised minority even within the prison community. Return to text.

[45] See Fitzgerald, supra note 32, at 7 (explaining that the drug suppresses spontaneous erections but does not cause total sexual impotence); John T. Melella et al., Legal and Ethical Issues in the Use of Antiandrogens in Treating Sex Offenders, 17 BULL. AM. ACAD. PSYCHIATRY L. 223, 225 (1989). Return to text.

[46] See Melella et al., supra note 45; John McD. W. Bradford, The Hormonal Treatment of Sexual Offenders, 11 BULL. AM. ACAD. PSYCHIATRY L. 159, 163 (1983). Return to text.

[47] See FLA. STAT. § 794.0235(2)(a) (1997). Return to text.

[48] 386 U.S. 605 (1967) (finding that Colorado's Sex Offenders Act, which permitted a court to sentence a sexual offender to an indeterminate sentence not specified in the criminal statute, violated the Due Process Clause of the Fourteenth Amendment). Return to text.

[49] See id. at 608 (explaining that pursuant to Colorado's Sex Offenders Act, a sex offender would be sentenced based upon a report made by a court-designated psychiatrist without permitting the defendant an opportunity to rebut the psychiatrist's findings). Return to text.

[50] See id. at 610. Return to text.

[51] See generally Fitzgerald, supra note 32, at 12 (explaining Allen v. Illinois, 478 U.S. 364 (1986), which held that the introduction of a psychiatric report in a civil commitment proceeding does not violate the Fifth Amendment privilege against self-incrimination because those safeguards are designed to protect the defendant's due process rights in a criminal proceeding only). In practice, the medical expert is more likely than not to be the state's witness, appointed by the court because the expert believes in the use of MPA for almost all sexual offenders subject to section 794.0235, Florida Statutes, a criminal statute. In such a circumstance, the defendant should be afforded the opportunity to rebut the adverse findings of the medical expert. Conversely, if the court selects a medical expert who is not predisposed to the state's position, the prosecutor should have the opportunity to present expert testimony expressing a different opinion. Return to text.

[52] See ACLU POSITION STATEMENT, supra note 10. Return to text.

[53] See FLA. STAT. § 794.0235 (1997). Return to text.

[54] See Talev, supra note 4; supra Part III.A. Return to text.

[55] See Fitzgerald, supra note 32, at 9. Return to text.

[56] See id. Return to text.

[57] The explanation is probably more fiscal than philosophical. The current cost of an MPA 400 mg intramuscular injection is $40.00 per week. See Fla. S. Comm. on Crim. Just., CS for SB 774 (1997) Staff Analysis 7 (Apr. 22, 1997) (on file with comm.). The Legislature did not analyze the cost for psychotherapy. However, it is not unreasonable to project the cost at several thousand dollars for each individual ordered to undergo weekly MPA injections. Return to text.

[58] See supra text accompanying note 37. Return to text.

[59] See Fitzgerald, supra note 32, at 18-25 (discussing informed consent). Return to text.

[60] See Cruzan v. Missouri Dep't of Health, 497 U.S. 261, 277 (1990) (holding that an incompetent person's wishes to withhold medical treatment must be proven by clear and convincing evidence); see also Thor v. Superior Court, 855 P.2d 375, 383 (Cal. 1993) (balancing a prisoner's right to be free from non-consensual intrusions into his bodily integrity against the countervailing state interests of the preservation of life, prevention of suicide, integrity of the medical profession, and protection of innocent third parties); Singletary v. Costello, 665 So. 2d 1099, 1104 (Fla. 4th DCA 1996) (recognizing a prisoner's fundamental right to refuse medical treatment after he engaged in a hunger strike). Return to text.

[61] See Washington v. Harper, 494 U.S. 210, 227 (1990) (holding that antipsychotic medication may be administered to a mentally ill state inmate only after determining that the inmate was dangerous and that the drug was in the inmate's best interest); Mills v. Rogers, 457 U.S. 291, 299 n.16 (1982) ("[I]nvoluntarily committed mental patients do retain liberty interests protected directly by the constitution . . . and these interests are implicated by the involuntary administration of antipsychotic drugs."); Vitek v. Jones, 445 U.S. 480, 493-94 (1980) ("A criminal conviction and sentence of imprisonment extinguish an individual's right to freedom from confinement for the term of his sentence, but they do not authorize the State to . . . subject him to involuntary psychiatric treatment without affording him additional due process protections."); Rogers v. Okin, 634 F.2d 650, 653 (1st Cir. 1980) ("[A] person has a constitutionally protected interest in being left free by the state to decide for himself whether to submit to the serious and potentially harmful medical treatment . . . as part of the penumbral right to privacy, bodily integrity, or personal security."); Runnels v. Rosendale, 499 F.2d 733, 735 (9th Cir. 1974) (performing a hemorrhoidectomy without the prisoner's consent implicated the prisoner's right to refuse medical treatment); Singletary v. Costello, 665 So. 2d 1099, 1104 (Fla. 4th DCA 1996) (recognizing a prisoner's right to refuse medical treatment after he engaged in a hunger strike); In re K.K.B., 609 P.2d 747, 751 (Okla. 1980) (holding that a legally competent patient has the right to refuse treatment with antipsychotic drugs). Return to text.

[62] See Washington, 494 U.S. at 223 (citing Turner v. Safley, 482 U.S. 78, 79 (1987)). But see Singletary, 665 So. 2d at 1105 (applying strict scrutiny analysis and holding that the prisoner retained the constitutional right to privacy, despite the state's interest in the preservation of prison security, safety, and rehabilitation). Return to text.

[63] See Washington, 494 U.S. at 229 (recognizing a significant liberty interest in avoiding the unwanted administration of an antipsychotic drug); Thor, 855 P.2d at 383 (upholding an inmate's right to refuse life-sustaining treatment); see also Skinner v. Oklahoma, 316 U.S. 535 (1942) (striking down a forced sterilization statute). Return to text.

[64] 464 F.2d 772 (D.C. Cir. 1972) (discussing a patient-initiated action against a surgeon). Return to text.

[65] Id. at 780. Return to text.

[66] See supra text accompanying note 46. Return to text.

[67] See generally Green, supra note 14, at 17. Return to text.

[68] See Fitzgerald, supra note 32, at 22 (arguing that if the defendant is permitted the option of accepting the treatment as a condition of probation or parole, then it is voluntary because there has been a rational decision to undergo treatment rather than remain in prison). Return to text.

[69] See FLA. STAT. § 794.0235(5)(a)-(b) (1997). Return to text.

[70] See Griswold v. Connecticut, 381 U.S. 479, 484-86 (1965) (holding that a state law forbidding the use of contraceptives was unconstitutional because the statute intruded upon the right of marital privacy and was not supported by a compelling state interest). When a statute infringes on a fundamental right or appears to invidiously discriminate against a suspect class, the court applies a strict scrutiny analysis, requiring that the action be justified by a compelling state interest, and that it be the least restrictive means for achieving the state's asserted goal. See Washington v. Glucksberg, 117 S. Ct. 2258, 2268 (1997) (upholding a statutory ban on assisted suicide). Return to text.

[71] See Carey v. Population Serv. Int'l, 431 U.S. 678, 684-85 (1978) (recognizing that the constitutional privacy protection implicit in the Fourteenth Amendment extends to individual childbearing decisions); Eisenstadt v. Baird, 405 U.S. 438, 453-54 (1972) (holding that the privacy right encompasses the right of unmarried persons to use contraception); Roe v. Wade, 410 U.S. 179, 211-13 (1973) (Douglas, J., concurring) (describing the privacy right as encompassing the freedom from bodily restraint and compulsion, the liberty of caring for one's own health and person, and the freedom to decide fundamental issues of one's life, such as procreation and child-rearing). Return to text.

[72] See Peters, supra note 1, at 322-23 (discussing the right to procreative freedom). Return to text.

[73] 316 U.S. 535 (1942). Return to text.

[74] See id. at 541. Return to text.

[75] Bowers v. Hardwick, 478 U.S. 186, 195 (1986) (upholding a sodomy statute). Return to text.

[76] Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (footnote omitted) (upholding a California statute establishing paternity). Return to text.

[77] Stanley v. Illinois, 405 U.S. 645, 651 (1972) (holding that an unwed father was entitled to a hearing on his fitness as a parent before his children could be removed in a dependency proceeding) (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); May v. Anderson, 345 U.S. 528, 533 (1953)). Return to text.

[78] 424 U.S. 693 (1976). The Court clarified the scope of privacy deserving constitutional protection and held that without more, damage to reputation alone does not implicate a fundamental liberty interest. See id. at 713. Return to text.

[79] See id. at 713. Return to text.

[80] Skinner, 316 U.S. at 541. Return to text.

[81] See FLA. STAT. § 794.0235(2)(a) (1997). Given the current levels of concern about sexual predators, the author believes that a sentence of weekly drug injections "for life" will be the norm, rather than the exception, should the new law be held constitutional. Return to text.

[82] See Trop v. Dulles, 356 U.S. 86, 100 (1958) (holding that the expatriation of a U.S. Army deserter exceeded Congress' war power). Return to text.

[83] See Knecht v. Gillman, 488 F.2d 1136, 1140 (8th Cir. 1973) (disallowing the administration of a vomit-inducing drug to nonconsenting mental institution inmates); Mackey v. Procunier, 477 F.2d 877, 877-78 (9th Cir. 1973) (holding that a prisoner challenging the use of a fright drug as aversive therapy had sufficiently alleged a claim of cruel and unusual punishment); Rennie v. Klein, 462 F. Supp. 1131, 1143 (D. N.J. 1978) (finding that the forcible administration of psychotropic medication was a treatment plan and not punishment because the medication had therapeutic value, was recognized as an acceptable medical practice, did not cause unnecessarily harsh side effects, and was part of a continuing psychotherapeutic program). Return to text.

[84] Skinner, 316 U.S. at 546 (Jackson, J., concurring). Return to text.

[85] 352 N.W.2d 310 (Mich. Ct. App. 1984), modified, 419 N.W.2d 909 (Mich. 1984), appeal after remand, 394 N.W.2d 437 (Mich. Ct. App. 1986); Gauntlett v. Kelley, 658 F. Supp. 1483 (W.D. Mich. 1987) (denying the petition for writ of habeas corpus), aff'd, 849 F.2d 213 (6th Cir. 1988). Return to text.

[86] See Gauntlett, 352 N.W.2d at 315-17. The Gauntlett court explained it was not deciding the case on constitutional grounds because the case could be decided pursuant to state law. See id. at 314. Return to text.

[87] 47 Ga. 297 (1872). Return to text.

[88] See id. at 302. Return to text.

[89] 216 F. 413 (S.D. Iowa 1914), rev'd on other grounds, 242 U.S. 468 (1917). Return to text.

[90] See id. at 416. Return to text.

[91] See id. Return to text.

[92] Id. at 416-17. Return to text.

[93] See United States v. Stine, 521 F. Supp. 808, 809 (E.D. Pa. 1981), aff'd, 675 F.2d 69 (3d Cir. 1982) (holding that a condition of probation requiring convicted felons to submit to psychiatric counseling satisfied the reasonable relationship test). Return to text.

[94] See United States v. Tonry, 605 F.2d 144, 148 (5th Cir. 1979) (affirming the condition that the probationer not participate in any political activities because the restriction was reasonably related to his conviction of illegally accepting campaign contributions); Higdon v. United States, 627 F.2d 893, 897 (9th Cir. 1980) (holding that the probationary conditions requiring the forfeiture of assets and charitable work were not intended as rehabilitative); M.C.L. v. State, 682 So. 2d 1209, 1213 (Fla. 1st DCA 1996) (upholding the moral probation requirement because it was reasonably related to the crime); Fernandez v. State, 677 So. 2d 332, 335 (Fla. 4th DCA 1996) (invalidating a probation requirement that the defendant submit to and pay for random alcohol tests); Howland v. State, 420 So. 2d 918, 919-20 (Fla. 1st DCA 1982) (holding a condition of probation prohibiting a convicted child abuser from fathering a child invalid because it interfered with noncriminal conduct and was not reasonably related to past or future criminality). Return to text.

[95] See Hughes v. State, 667 So. 2d 910, 912 (Fla. 4th DCA 1996) (striking down as overbroad a probationary condition that forbid the defendant from coming within 250 miles of the victim); Williams v. State, 661 So. 2d 59, 61 (Fla. 2d DCA 1995) (invalidating a probationary condition that the defendant waive confidentiality of random blood and urine tests because it was overbroad); People v. Zaring, 8 Cal. App. 4th 362, 371 (Cal. Ct. App. 1992) (invalidating a condition of probation that the defendant not become pregnant because it was not reasonably related to the crime committed or to future criminal behavior). Return to text.

[96] Higdon, 627 F.2d at 898; see also Brodus v. State, 449 So. 2d 941, 942 (Fla. 2d DCA 1984) (invalidating the condition prohibiting a drug user from living with an unrelated female); Rodriguez v. State, 378 So. 2d 7, 10 (Fla. 2d DCA 1979) (invalidating a condition prohibiting a convicted child abuser from marrying or becoming pregnant). Return to text.

[97] See Russell, supra note 2, at 426-59; Fitzgerald, supra note 32, at 4-5; Icenogle, supra note 36, at 285, 288-93. Return to text.

[98] See Komisky v. State, 330 So. 2d 800, 801-02 (Fla. 1st DCA 1976) (finding that the purpose of probation is primarily to rehabilitate, not to punish). Return to text.

[99] See FLA. STAT. § 794.0235(1)(b) (1997). Return to text.

[100] See Washington v. Harper, 494 U.S. 210, 227 (1990) (allowing antipsychotic medication to be administered only after a determination that an inmate is dangerous and that the drug is in the inmate's best medical interest); Vitek v. Jones, 445 U.S. 480, 493-94 (1980) ("A criminal conviction and sentence of imprisonment extinguish an individual's right to freedom from confinement for the term of his sentence, but they do not authorize the State . . . to subject him to involuntary psychiatric treatment without affording him additional due process protections."). The author does not doubt that some prosecutors and some trial judges will read section 794.0235, Florida Statutes, to require "the weekly administration of injections of MPA for the natural life of the defendant" based upon the finding of a "medical expert" who has never treated a sex offender with MPA. The "expert" will likely predict that the defendant will not have an allergic reaction to MPA nor will he experience any unanticipated side effects. Return to text.

[101] See Vanderzyl, supra note 2, at 133. Return to text.

[102] See id. Return to text.

[103] See Harvard Note, supra note 17, at 803. Return to text.

[104] See Fitzgerald, supra note 32, at 9. Return to text.

[105] See Berlin & Meinecke, supra note 35, at 601. Return to text.

[106] U.S. CONST. amend. V. Return to text.

[107] See Arizona v. Manypenny, 451 U.S. 232, 246 (1981) (holding that a criminal appeal by the prosecution is permissible when such an appeal is permitted by federal statute); Brown v. Ohio, 432 U.S. 161, 165 (1977) (finding that a trial court divided a charge into separate parts, resulting in multiple convictions and subjecting a defendant to double jeopardy); Lippman v. State, 633 So. 2d 1061, 1064 (Fla. 1994) (holding that a modification of probation that has a punitive effect is double jeopardy). Return to text.

[108] 602 So. 2d 554 (Fla. 4th DCA 1992). Return to text.

[109] See id. at 555. Return to text.

[110] See FLA. STAT. § 794.0235 (1997). Return to text.

[111] See id. § 794.0235(5)(a)-(b). Return to text.

[112] See Poore v. State, 531 So. 2d 161, 164 (Fla. 1988). Return to text.

[113] See Green v. State, 463 So. 2d 1139, 1139 (Fla. 1985) (holding that the state can try the probationer for a crime that triggered probation revocation proceedings, even though there was insufficient evidence to revoke the probation). Return to text.

[114] See FLA. STAT. § 775.082(3)(c) (1997). Return to text.

[115] Green v. United States, 355 U.S. 184, 187 (1957). Return to text.

[116] See Memorandum from the Due Process Committee to the ACLU Board of Directors (Mar. 28, 1991) (on file with the ACLU of Florida, Tallahassee, Fla.) [hereinafter Due Process Memo]. Return to text.

[117] MPA effectively suppresses the paraphiliac's erotic fantasies. See Berlin & Meinecke, supra note 35, at 603. In this way, one could argue, the drug interferes with the paraphiliac's thought processes. See Melella et al., supra note 45, at 227. The U.S. Supreme Court has held that the state has no right to control an individual's thoughts even if they are immoral. See Stanley v. Georgia, 394 U.S. 557, 565-66 (1969) ("Whatever the power of the state to control public dissemination of ideas inimical to public immorality, it cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts."). In Rogers v. Orkin, 478 F. Supp. 1342 (D. Mass. 1979), the court enjoined doctors from forcibly medicating patients in a mental institution because the capacity to think and decide unencumbered by the state is a fundamental right. See id. at 1366-67. Return to text.

[118] See Due Process Memo, supra note 116. Return to text.

[119] See id. Return to text.

[120] See id. Return to text.

[121] See supra Part IV.C. Return to text.

[122] See ACLU POSITION STATEMENT, supra note 10. Return to text.

[123] Subsequent to the announcement by Governor Chiles that he would allow House Bill 83 to become law without his signature, the ACLU of Florida state legal panel requested authorization to file a constitutional challenge to the new law, based upon the principles set forth in this policy statement. The request was approved by the ACLU Affiliate Board of Directors at its spring meeting in West Palm Beach, Florida, on May 17, 1997. The ACLU cannot challenge the statute until someone who committed a sex offense on or after October 1, 1997, is sentenced under the statute. See FLA. STAT. § 794.0235 (1997). Much of the language of the policy statement was adapted from the Report of the National ACLU Due Process Committee, dated September 24, 1993. The Due Process Committee studied the use of antiandrogen drugs as an alternative to incarceration in sex offender cases for over three years. However, the National ACLU Board of Directors was not able to reach a consensus as to a specific policy on the issue. Return to text.

[124] See Due Process Memo, supra note 116. Return to text.

[125] See supra note 8. Return to text.

[126] See Fitzgerald, supra note 32, at 9. Return to text.

[127] See id. Absent a more proven and effective treatment for the causes of acts of sexual battery, incarceration will always provide greater protection to the public because it removes the offender from society. Chemical castration, improperly prescribed, allows the offender greater access to potential victims without eliminating the hostility and rage that precipitates most criminal sexual conduct. In addition, chemical castration subjects an offender to immediate, potentially adverse physiological effects and significant future health risks. Since continued incarceration does not expose a convicted sex offender to these varied risks, it constitutes a less restrictive means of dealing with sex offenders. Return to text.

[128] See Fred S. Berlin, The Case for Castration, Part 2, Wash. Monthly, May 1994, at 28, 29. Return to text.

[129] See supra note 36. Return to text.