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August 28, 2011

If castration was a good idea for Thomas Jefferson, why not for Richard Graves?

We concluded our first week's class discussion with questions about whether and why castration (either physical or chemical) could and would be a fitting punishment for convicted rapist Richard Graves.  As a preview of second week topics, I encouraged considering whether answers to these questions might be changed or significantly influenced if (a) Graves' victim urged this punishment, and/or (b) Graves himself embraced this punishment (perhaps in lieu of additional years in prison).  

For those with a visceral negative reaction to castration as a form of punishment, I suggest reflection on Michel Foucault's astute insight that, in modern times, we seem far more content to "torture the soul" through long terms of imprisonment than to "torture the body" through physical punishment.  In addition, for those with a legalistic negative reaction that the US Constitution would never permit such a punishment, I suggest reflection on the fact that few forms of punishment have ever been the subject of Supreme Court review.

Moreover, for anyone drawn to an originalist approach to constitutional interpretation, a fascinating document authored by Thomas Jefferson suggests at least some Framers approved and endorsed castration as a punishment for some crimes.  This Jeffersonian document, titled "A Bill for Proportioning Crimes and Punishments," includes these notable passages:

Whereas it frequently happens that wicked and dissolute men resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in it's principal purpose were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears at the same time equally deducible from the purposes of society that a member thereof, committing an inferior injury, does not wholy forfiet the protection of his fellow citizens, but, after suffering a punishment in proportion to his offence is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange in a proper scale the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.

And whereas the reformation of offenders, tho' an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens, which also weaken the state by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.

And forasmuch the experience of all ages and countries hath shewn that cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed.

For rendering crimes and punishments therefore more proportionate to each other: Be it enacted by the General assembly that no crime shall be henceforth punished by deprivation of life or limb except those hereinafter ordained to be so punished....

Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least....

All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15, stripes....

I highly encourage everyone to read the entire Jefferson punishments bill: it provides not only a perspective on crime and sentencing at the time of the Founding, but it also spotlights the array of punishments used before the birth of modern prisons.

August 28, 2011 in Alternatives to imprisonment, Who decides | Permalink


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My thoughts about castrating Richard Graves stemmed not from the severity of the punishment compared to the degree of the crime, but rather the fact that I did not want to impose a permanent sentence on Graves from what seemed to be a case determined on drunken "he said, she said." I was unsure that Graves actually did engage in non-consensual sex. In addition, I did not consider the fact pattern to warrant such harsh punishment.

(a) Just as I would not impose a permanent mental sentence (life in prison) on Graves, likewise, I would not impose a permanent physical sentence (castration) on Graves even if Graves' victim urged this punishment.

(b) I have no idea how to respond to Graves' desire to receive such a punishment: first because I do not think any man would voluntarily part with his private part, and second because I was under the impression that the defendant's desire of punishment had no bearing on sentencing. I, myself, would not allow it because I think men make irrational decisions based on present desires with no future consideration as to how it will affect themselves or those around them. :) However, I am curious to know what others would do in the situation...

Posted by: Crystal M | Aug 28, 2011 9:31:46 PM

Regarding torture v. long imprisonment generally as punishment tactics, my limited work with prisoners over the summer leads me to believe that putting prisoners in solitary confinement for weeks, months, or years at a time can potentially be a worse punishment than even castration. Inmates lose touch with reality, and it can be long-term mental torture. In Florida at least, inmates can receive solitary confinement for a variety of reasons (kicking a cell door, internal investigation) and the prison doesn't have to offer detailed explanations for their security assignment.

My guess is that first-time prisoners would still choose imprisonment with the possibility of solitary confinement at certain points over castration. However, let's say Richard Graves has been in prison before and knew how awful confinement was, and would rather be castrated before he had the possibility of going back into confinement if he ever was perceived as misbehaving while in general population. I don't think Graves should be able to make that choice. I also don't think the victim should choose. The judge should be the one to make the decision based on what she feels is the appropriate punishment for the person convicted. However, the attorney for Graves should of course be able to argue for a particular punishment and the judge should factor in Graves' preference as well as the victim's preference of type of punishment.

Posted by: Maureen F | Aug 28, 2011 10:57:11 PM

And where persons, meaning to commit a trespass only, or larceny, or other unlawful deed, and doing an act from which involuntary homicide hath ensued, have heretofore been adjudged guilty of manslaughter, or of murder, by transferring such their unlawful intention to an act much more penal than they could have in probable contemplation; no such case shall hereafter be deemed manslaughter, unless manslaughter was intended, nor murder, unless murder was intended.

Is this Thomas Jefferson getting rid of the felony-murder rule?

Anyway, also of interest is this link:


where the author creepily points out that the Worldwide 24/7 Panopticon is already here. A corollary discussion would be to ponder the conservative critique that "there is no right to privacy" and what that would mean if humiliation were to come back in style as a form of punishment. If, say, we decided that someone should have to consume something disgusting in front of an audience, which would then watch it over and over again on YouTube, is that punishment or the latest reality show?

Posted by: Steven Druckenmiller | Aug 29, 2011 9:46:05 PM

To me imposing castration as opposed to a prison sentence is not simply a matter of a torture of the soul and torture of the body. Castration is irreversible and it alters the being of a person. It seems that such punishment has two purposes to prevent the person from taking the same action again and to give pleasure to the victim. However, such a permanent punishment assumes that people cannot and will not change their course of action and cannot be rehabilitated. I am well aware that our justice system does not have a track record of actually rehabilitating anyone and that statistics show that most people that commit these type of crimes will act again, however I still believe there should be a possibility of hope. I do not think anyone should be punished based on what statistics and research show. Each should be given a chance to change and castration does not leave that chance available. Also, despite the feeling of satisfaction I do not think we should allow castration even to please the victim. While it may make the victim feel better outside of that it serves no purpose and I do not think punishment should be about making the victim feel better. I find it interesting that such punishment was a permitted in the past and included in the Jefferson document, however, this also demonstrates that we tried it before and decided to stop it. The fact that the practice was not continued leaves me with an inference that it did not work or that the flaws outweighed the benefits. Therefore we should learn from the past and not reinstitute that which we already decided to discontinue.

Posted by: Carmen Smith | Aug 29, 2011 9:53:04 PM

Cool article Steven

Posted by: Colin P | Aug 30, 2011 9:43:49 AM

In the Graves case, I do not believe that castration is appropriate given what I believe to be a dearth of solid evidence: it really becomes a he said, she said situation. That said, in certain other cases, I believe that castration is wholly necessary -- the serial rapist, the child molesters, even those who are partial to child pornography (and I say this because, even if they have not actually violated a child, their moral propensities are clearly unacceptable in our society).

Another thing to consider in the punishment of soul v. body is that the victim's soul is often brutalized far more than his/her body. Physical wounds can heal (for the most part), but the psychological pains reverberate for years after. In the vein of retributivism, I believe it is logical to have the punishment fit the crime in this manner.

One last thought, which might be controversial, but it seems that the US is bound far too much by what other countries think of it. Of course, there is tension between our civil rights/frowning upon other nations that maintain corporal punishment and our imposing harsh sentences (like castration); however, trying to look humane to avoid flak from the UN, etc., does a disservice to the goals of the legal system -- just because another country thinks we are treating people with more dignity does not mean that our penalties are effective.

Posted by: Heather W | Aug 30, 2011 11:13:26 AM

Also, I found this article and wasn't sure where to post it: http://www.huffingtonpost.com/2011/08/29/alberto-luis-alvarez-man-_n_941018.html?ir=Crime

It is interesting that, despite the seeming horror conveyed by the author regarding an individual arrested almost 100 times, the ultimate sentence this man received was only 18 months. While his crimes, individually, may not have been incredibly serious, in aggregate, coupled with his obvious disregard for the law, I would think they warrant a harsher sentence.

Posted by: Heather W | Aug 30, 2011 11:16:00 AM

I admire rehabilitation as a worthy goal. But it is just that--a goal. Not everyone is capable of rehabilitation. Where rehabilitation is not possible, incapacitation should take its place. That said, however, at what point do we deem someone so incapable of rehabilitation? After committing the same crime twice? Three times? Fifty times? What about different crimes of a similar nature? Or different crimes of a wholly different nature? It seems to be a question that is largely internal to each individual person. It is because of that complexity that I oppose such bodily punishment as castration.

Posted by: Krystin Brehm | Aug 30, 2011 12:16:48 PM

After today’s class discussion, I am more in favor of using some sort of reversible chemical castration method that would prevent a convicted rapist from having sex for a period of time. Therefore, rather than being sentenced to a period of 10 years incarceration, Graves would be sentenced to a period of 10 years of ingesting the “little pink pill”.

I feel this type of sentence makes more sense than incarceration because it would allow Graves to still potentially be a productive member of society, while incapacitating him from raping anyone else. Presumably, incarcerated male prisoners will not be having sex during the time of their imprisonment anyways, so any argument that chemical castration is too harsh, or deprives one’s right over his physical body is weakened. Another argument against reversible chemical castration could be that it deprives one’s liberty, and thus it would be unconstitutional to deprive one of his physical response to sexual arousal. My initial opinion is that locking one up in a cell for 10 years deprives far more personal liberties than removing one’s libido.

At the end of the class, we talked briefly about gender disparity in a sentencing scheme that involves castration. However, I would argue that something like the “little pink pill” that does not actually physically multilate any part of the body, but merely creates some sort of chemical imbalance that removes sexual arousal does not necessarily create a gender divide. At the same time, differences in the male and female anatomy can make sex impossible for men while taking the “little pink pill”, but still possible for women.

Posted by: Biru C. | Aug 30, 2011 8:11:58 PM

I frankly don't care about the alleged "gender disparity". Just because the sentence would happen to fall more on men is because men commit rape more than women does not convince me that it is somehow "unfair". The same charge could be levied against prison, or death sentences: most prisoners and death-row inmates are male.

I also think it pertinent to take note that, if the rape counselors and MSWs are to be believed, rape is about power and control rather than sex and sexuality. The "pink pill" solution does not prevent oral rape, digital or other-object types of forcible sodomy, etc. Therefore, depriving someone of their sexual urges may not make them less of a predator if one ascribes to the notion that rape is a power crime rather than a sex crime.

Posted by: Steven Druckenmiller | Aug 31, 2011 11:11:01 AM

Both of these links I stumbled across while researching for my paper seemed relevant:



Posted by: Steven Druckenmiller | Aug 31, 2011 9:06:29 PM

I think I am with Biru on this one. Chemical castration, with all of it's reversible-ness, I think could be a great idea. Other than the benefits we discussed in class, I thought of a couple of other advantages to this punishment in regard to empirical questions.

First, it's super-efficient. I don't have numbers in front of me, but I know as a general matter it's really expensive to lock someone up for 10 years (or whatever sentence you gave Graves). It would presumably be much cheaper to give him a pill and some trips to a therapist, and all the while he is living among us in society. He has a chance to be a productive member of society while out of prison rather than a drain on the inside. Maybe it's crass, but it would save us a load of money.

Second, the question of aggression was brought up both in class and here. I grew up on a farm, and one of the major reasons you castrate animals is so they aren't as aggressive. Bulls are much more aggressive than castrated steers, and the same goes for dogs and horses and others. Without regular testosterone production, they are more docile. Empirical question again, but I am fairly sure the same is true of humans.

Posted by: Colin P | Sep 1, 2011 9:02:37 AM

Going along with Colin's post, another advantage I can see with using reversible chemical castration is its strong rehabilitative effect. I personally did not choose rehabilitation as my #1 purpose for punishment, but it certainly is a factor in determining the type and extent of a sentence.

I believe that using reversible chemical castration as the punishment for rape, rather than incarceration, would prove to be a strong rehabilitative practice for convicted rapists. Unfortunately in today's society, prison has become a common, almost expected place of residence for a large sector of the population. Realistically, prison is not a useful tool in rehabilitating criminals. In fact, prison is the "easy way out" for many people, for it allows convicted rapists to be hidden from society and not have to deal with the underlying purpose and reason for committing the offense. For many rapists, they will not have to face their issues with drug, alcohol, or sex addiction. Then, when they are released from prison, they have no idea how to function in society. Chemical castration, on the other hand, forces convicted rapists to deal and potentially be treated for their issues. This may not be a viable option for violent rapists, but for people like Graves -- it may be far more rehabilitative than incarceration can be.

Posted by: Biru C. | Sep 1, 2011 9:59:35 AM

While I believe castration certainly is a barbaric course of action, and one we should not have to stoop down to in this day and age, at the same time I ask myself if it’s the lesser of two evils when all is said and done? Although there have been numerous articles questioning castration in Europe, in terms of both surgical and chemical procedures as well as the issue revolving around “consent” (please see articles below), at the same time I have heard, and do believe, that even if a sexual offender doesn’t rape another individual, he/she will still have urges and those urges can be transferred to the realm of porn, especially child porn. By using child porn wet their appetites, they can either directly or indirectly, promote sexual imposition and/or abuse to more victims, just in a different capacity. The result is the same to me though — the innocence, dignity, and freedom of young children are being stripped because of the sick and twisted individuals who choose to feed their urges rather than learn how to control themselves and get help. So this leads me to question at the end of the day whether castration is not such a bad idea after all? Although I’m inclined to say of course it is, is it really? I’ll leave with this quote that stuck out in my mind after reading it from the New York Times article I’ve included:

“My personal tragedy is that my son is in heaven and he is never coming back, and all I have left of him is 1.5 kilograms of ashes,” [said the father of 9-year old victim who was raped and murdered]. “No one wants to touch the rights of the pedophiles, but what about the rights of a 9-year-old boy with his life ahead of him?”




Posted by: Isabella | Sep 6, 2011 10:03:27 PM

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