You were careful before to use the term " an irreversible imposition on a person's physical being" however now in the post above it is a punishment. I also note the debate has shifted from the European theatre to a US constitutional one. The main point being "punishment" as your 8th Amendment relates to this.
Because the discussion moved to the US topic. The aforementioned point still holds, as it's "an irreversible imposition on a person's physical being" regardless of where we are.
From what I've also read, the the term "punishment" is subjective. Where castration (chemical) is involved in the US (including Mr Jindal's signing into law) it becomes a mandatory punishment after 2nd offence - although I've read that there is talk of it being a 1st offence punishment too.
In the European example (Czech republic) first discussed - it is/was an offer of an alternative i.e. incarceration or castration. In other parts of europe where it is being discussed it is chemical castration - which is not permanent anyway. If the offender stops his treatment he is not "castrated" anymore.
I don't have as much of a problem with chemical castration as I do with surgical castration.
But going back to punishment - prison is punishment, the way I see it, the surgical castration being offered to Czech paedophiles can also be seen as treatment and thus in the same light as treatment for any other tissue that causes a problem.
Prison is widely accepted as a proper form of punishment. Surgical castration, imo, is about as close to cruel and unusual punishment as you can get, hence the 8th Amendment problems.
The only difference is that the tissue removed from a paedophile that willingly undergoes the treatment removes a threat from other people whereas most tissue removal treats the subject himself. Besides, the question of choice negates the argument of coercion. There is no obligation yet in the European examples of enforced castration. That however is what I read is being talked about in Louisiana's laws.
Louisiana is proposing mandatory chemical castration, like several states have. European countries are talking about incentivized surgical castration, which raises problems of state coercion and improper influence. Were a US state to pass a law allowing the state to incentivize surgical castration, I believe that law would be invalidated by the court.
Personally, while the treatment is an offer that can be turned down then I cannot see it as punishment. When it becomes mandatory then it is - but is it cruel and unusual?
My general rule of thumb is that anything outlawed by Britain in the 13th century as being cruel and unusual is probably still cruel and unusual today.
That is another matter and it is still highly subjective - but there are some (maybe not many) paedophiles who have asked for relief from their condition. That much is known - and I see no reason to deny them this. If a suspected paedophile is actually innocent then it is unlikely they would take an offer of castration but would fight their case to prove their innocence. That is the only area where I have problems with mandatory castration - but I am not resolved in my mind yet - we don't have the Death Penalty in Europe however one area I have previously agreed with the Death Penalty was dangerous recidivist paedophiles.
If a pedophile wants to be castrated and is making that choice freely, I don't have a problem with that. States can offer that option without constitutional problems. Where it becomes an issue is where the state is incentivizing that practice.
Think about this: If NYC wanted to create a program where it would offer complimentary sterilization to any who wanted it, there would be no problem with that. But if NYC created a program where it would pay people $5,000 to get sterilized, there would be a massive uproar because it would be (rightly) seen as paying poor people to get sterilized.
The alternative is incarceration for a long period of time. Does THAT not call into question personal autonomy?
Of course, but they're simply different. You can't deny that surgical castration carries a much harsher connotation.
The difference is that you have a constitutional right to an attorney and to a fair trial. You don't have a constitutional right to a pair of testicles. In fact, over 50% of the population doesn't have them. Furthermore, I don't see how it can be considered "cruel" as long as it's done with anesthesia and no negative health consequences result.
Do you have an explicit constitutional right to not have your hand cut off for stealing (so long as they used anesthesia)? Of course not, but such a law would be immediately invalidated.
Sexual reproduction is even more protected, given that it falls within the penumbra of **** that Roe gave us.
The problem in Skinner v Oklahoma was that the state was doling out very different punishments for roughly comparable crimes (larceny/embezzlement) without offering any justification for doing so.
Do you think that if the OK law had offered a justification, the court would have decided to uphold it? I don't. The language of the decision made it pretty clear, imo, that even though they were only ruling on the EP issue, it would have been overturned regardless.
This case touches a sensitive and important area of human rights. Oklahoma deprives certain individuals of a right which is basic to the perpetuation of a race-the right to have offspring.
Several objections to the constitutionality of the Act have been pressed upon us. It is urged that the Act cannot be sustained as an exercise of the police power in view of the state of scientific authorities respecting inheritability of criminal traits. It is argued that due process is lacking because under this Act, unlike the act upheld in Buck v. Bell, the defendant is given no opportunity to be heard on the issue as to whether he is the probable potential parent of socially undesirable offspring. It is also suggested that the Act is penal in character and that the sterilization provided for is cruel and unusual punishment and violative of the Fourteenth Amendment. We pass those points without intimating an opinion on them, for there is a feature of the Act which clearly condemns it. That is its failure to meet the requirements of the equal protection clause of the Fourteenth Amendment.
We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, farreaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.
All these indications are dicta, but every single state court that has addressed the issue has held that it's unconstitutional and I very much doubt that any case would come out differently today, as it would face challenges under both the state and federal constitution.
In this case, the class of crimes for which an offender can be castrated (rape / molestation / sometimes murder) would NOT be roughly comparable to the crimes for which an offender could not be castrated (stealing a TV), and there WOULD be a justification for doing so: Namely, that castration will tame the offender's sexual urges and greatly reduce the risk of recidivism.
And I think that regardless of what level of scrutiny the court would apply, the plan would fail because it's not the least restrictive alternative. If chemical castration works as well as surgical castration, I don't see the justification for allowing the state to incentivize surgical.