“Tough on Crime” or Just Barbaric? Louisiana’s Surgical Castration Law and the Erosion of Constitutional Rights

In the past few months, a new tough-on-crime approach to justice has led Louisiana to pass legislation eliminating parole and resuming electric-chair executions — which have not been used since the state moved to lethal injections in 1991 [1] — but in June, the state enacted a new law that threatens to set ethical standards of criminal justice back centuries. As of August 1, 2024, Louisiana is the first state to allow surgical castration as a punishment for sex crimes. [2] 

The new law (Louisiana SLS 24RS–532) allows judges within the state to order the surgical castration of a sex offender above the age of 16 if convicted of a sex offense against a minor under 13. If the offender were to refuse the procedure, they would be charged with failure to comply with the court order and receive an additional sentence of three to five years in prison. [3] Proponents argue that the law is necessary to deter potential sex offenders from offending, but few other jurisdictions globally have resorted to similar castration laws, and those laws have already drawn strong criticism from human rights organizations, including Amnesty International. [4] The castration of sex offenders is not only unnecessary and draconian, but also legally unprecedented. The idea of imparting justice by mutilating criminals is not tough on crime — it is dangerously primitive and unconstitutional. 

The Eighth Amendment provides that “cruel and unusual punishments” shall not be inflicted, and the Supreme Court has applied that clause to the states since Robinson v. California (1962) — in which it held that states could not punish citizens for being addicted to narcotics because doing so violated the Eighth Amendment, which was incorporated by the Fourteenth Amendment. [5] The Eighth Amendment’s protections do not exist to be sympathetic or “soft” on crime, but because, as the Court wrote in Roper v. Simmons (2005), which deemed the execution of minors unconstitutional, by “protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.” [6]

Under Louisiana’s castration law, both men and women can be castrated, but in reality, nearly all castrations will be performed on men, who make up the overwhelming majority of sex offenders. [7] In men, castration is the removal of both testicles. Apart from gender reassignment, the procedure exists as a rare and extreme treatment option for advanced and metastatic testicular and prostate cancers, and it permanently stops most production of male sex hormones in individuals on whom the procedure is performed. [8] In a modern, medical context, surgical castration is either palliative or accompanied by hormonal replacement. It is seldom performed as a castration on an otherwise healthy man, and findings from 20th-century studies help explain why the practice has been largely abandoned today. The subjects, in the decades following their castration, developed prostate atrophy; enlargement of the pituitary gland, the part of the brain responsible for hormonal regulation; and osteoporosis, leading to bone diseases, fractures, and numerous other complications. [9] 

Yet the studies, despite demonstrating that surgically castrating men left them with life-long, debilitating health complications, did not examine the more concerning issue: the psychological effects of castration. Modern studies have found that men who undergo androgen deprivation therapy (ADT) — a prostate cancer treatment, colloquially referred to as “chemical” castration, that reduces sex hormone production to near-castration levels — suffer from major depressive disorder at a rate eight times higher than the male national average. [10] Surgical castration, which reduces androgen levels as much or more than ADT and leaves a person mutilated, is bound to cause depressive disorders at even higher rates. And given the complications that arise from depressive disorders, including suicidal ideation and action, there is no quantifying just how severe the mental health toll of castration would be.

The medical and psychological effects of surgical castration have led courts to mention the barbaric and unconstitutional nature of the punishment in Eighth Amendment decisions; castration, though not the subject of those decisions, has been referenced as a paradigm of cruel and unusual punishment. The Georgia State Constitution contains a clause identical to the cruel and unusual punishments clause of the United States Constitution, and in an 1872 decision, the Georgia Supreme Court held that the cruel and unusual punishments clause “was, doubtless, intended to prohibit … castration” along with other “barbarities.” [11] Decades later, the United States Supreme Court cited the Georgia decision in a landmark Eighth Amendment ruling, Weems v. United States (1910).

Weems examined a criminal case from the Philippines, an American colony at the time. The petitioner, Weems, had been convicted of falsifying public records and sentenced to 15 years of forced labor, a large fine, and the loss of his right to vote, among other penalties. He argued that the sentence was cruel and unusual under the Philippine Bill of Rights, which like Georgia’s constitution, contained a provision identical to the Eighth Amendment of the U.S. Constitution. The Court agreed with Weems but had to address an important legal issue: what “constitute[d] a cruel and unusual punishment ha[d] not been exactly decided.” [12] In response, the Court wrote that the Eighth Amendment would “acquire meaning as public opinion bec[ame] enlightened by a humane justice” and that the Amendment could not be interpreted with “impotent and lifeless formulas.” [13] In Weems’ case, the sentence was deemed cruel and unusual because it was so disproportionate to his offense. Importantly, however, the Court added that the Eighth Amendment had always been understood to protect against “inhuman and barbarous” punishments, and it named castration among the examples, which “made one shudder with horror to read of.” [14] Weems provided both a clear reference to the unconstitutionality of castration and a foundational precedent, establishing that the Eighth Amendment should always be interpreted in the context of current ideals of justice. 

Nearly 50 years later, the Court built upon Weems’ precedent. In Trop v. Dulles (1958) — which held that the government could not revoke citizenship as a form of punishment— the Court wrote that while “the state has the power to punish, the [Eighth] Amendment stands to assure that this power be exercised within the limits of civilized standards.” Like in Weems, it reasoned that what exactly constituted “civilized” standards — and conversely, what was cruel and unusual — would be determined by “the evolving standards of decency that mark the progress of a maturing society.” [15] Louisiana’s castration law violates the Supreme Court’s opinions in Weems and Trop. The Court used castration as an example of “doubtlessly” cruel and unusual punishment in Weems, deeming it unconstitutional over a century ago. And even though Weems did not formally address the issue of castration, the reference to its unconstitutionality back then guarantees that it would certainly be considered so now, as per Trop, the scope of the Eighth Amendment has only evolved.

Beyond violating the Eighth Amendment’s protection against cruel and unusual punishments, however, Louisiana’s castration law violates a separate constitutional freedom: the freedom to procreate. In Skinner v. Oklahoma (1942), the Supreme Court heard a challenge against an Oklahoma law that allowed any individual convicted of specific felonies, three separate times, to be sentenced to compulsory sterilization. The law was struck down because it allowed sterilization for some crimes, but not other, similar ones, which the court found violated the equal protection clause of the Fourteenth Amendment; but more importantly, the Court also established that the freedom to procreate was a fundamental right. [16] 

The right to procreate is protected under the due process clause of the Fourteenth Amendment and the umbrella of substantive due process rights. The concept of substantive due process is well-articulated in the Supreme Court’s decision in Reno v. Flores (1993), which held that undocumented minors, detained on suspicion of being deportable, had no due-process right to be released into a non-custodial setting. The Court explained that the “Fourteenth Amendment[’s] guarantee of due process of law… forbids the government to infringe certain ‘fundamental’ liberty interests at all… unless the infringement is narrowly tailored to serve a compelling state interest.” [17] Accordingly, the right to procreate, as protected by Skinner, cannot be infringed unless the infringement meets the aforementioned requirement. Louisiana’s castration law, though specific to sex offenders, does not meet this requirement. Given that the state’s interest lies in preventing sex offenses, castration is definitively not a narrowly tailored means of doing so as it collaterally deprives offenders of their fundamental right to have children. The procedure is not the least restrictive means of preventing sex offenses, and further, it is not uniquely effective at doing so.

The perception that more severe sentences deter criminals from committing crimes has been disproven by several large-scale studies, and claims that castration successfully deters potential offenders from ever offending in the first place are not well-supported. [18] At most, castration could reduce sexual recidivism, but it is not the only method of doing so; studies have found that cognitive-behavioral treatments for relapse prevention, along with hormonal treatments, have all significantly reduced sexual recidivism in offenders. [19] Both treatments are less restrictive, reasonable alternatives, and there is no basis to conclude that castration would be substantially more effective in reducing sexual offenses.

Louisiana’s surgical castration law represents a clear constitutional violation of both the Eighth Amendment and the substantive due process right to procreate as protected by the Fourteenth. However, the Supreme Court has grown increasingly unpredictable in recent years, and if legal challenges to Louisiana’s castration law are unsuccessful, it is critical to remember why these protections are so important, even if afforded to the most despicable offenders. 

For Louisiana’s law to be upheld, Skinner would more than likely have to be overturned or modified, and, as the precedent affirming the fundamental right to have children, any modification to it would put that right in jeopardy. The legal implications of that decision could extend far beyond sterilization or castration, possibly affecting laws around adoption or intimacy and paving the way for laws regulating procreation. Otherwise, if castration is suddenly excluded from the realm of cruel and unusual punishment, the door to court-ordered medical treatment, forced surgery, and mutilative criminal justice is left wide open. Such a holding would set standards of ethics and humanity back centuries and destabilize the fundamental ideas of liberty and dignity on which our justice system has been built. 

Edited by Love Patel

[1] Hutchinson, Bill. 2024. “What to Know about Louisiana’s New Tough-On-Crime Laws.” ABC News. March 5, 2024. https://abcnews.go.com/US/louisianas-new-tough-crime-laws/story?id=107803112

[2] Diaz, Jaclyn. 2024. “What to Know about Louisiana’s New Surgical Castration Law.” NPR. July 1, 2024. https://www.npr.org/2024/07/01/nx-s1-5020686/louisiana-new-surgical-castration-law.

[3] Louisiana SLS 24RS-532

[4] “Madagascar: Authorities Must Repeal the Legalization of Chemical and Surgical Castration of Rapists.” 2024. Amnesty International. February 8, 2024. https://www.amnesty.org/en/latest/news/2024/02/madagascar-authorities-must-repeal-the-legalization-of-chemical-and-surgical-castration-of-rapists/.

[5] Robinson v. California, 370 U.S. 660, 667 (1962)

[6] Roper v. Simmons 543 U.S. 551, 560 (2005)

[7] “Sexual Abuse Offenders.” 2018. United States Sentencing Commission. 2018. https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Sexual_Abuse_FY18.pdf

[8] “Orchiectomy.” 2024. Cleveland Clinic. January 24, 2024. https://my.clevelandclinic.org/health/procedures/orchiectomy.

[9] Wilson, Jean D., and Claus Roehrborn. 1999. “Long-Term Consequences of Castration in Men: Lessons from the Skoptzy and the Eunuchs of the Chinese and Ottoman Courts.” The Journal of Clinical Endocrinology & Metabolism 84 (12): 4324–31. https://doi.org/10.1210/jcem.84.12.6206.

[10] Pirl, William F., Gabrielle I. Siegel, Melissa J. Goode, and Matthew R. Smith. 2002. “Depression in Men Receiving Androgen Deprivation Therapy for Prostate Cancer: A Pilot Study.” Psycho-Oncology 11 (6): 518–23. https://doi.org/10.1002/pon.592.

[11] Whitten v. State, 47 Ga. 297, 301 (1872)

[12] Weems v. United States, 217 U.S. 349, 368–377 (1910)

[13] Weems v. United States, 217 U.S. 349, 368–377 (1910)

[14] Weems v. United States, 217 U.S. 349, 378 (1910)

[15] Trop v. Dulles, 356 U. S. 86, 101 (1958)

[16] Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)

[17] Reno v. Flores, 507 U.S. 292, 301–302 (1993)

[18] Nelson, Marta, Samuel Feineh, and Maris Mapolski. 2023. “A New Paradigm for Sentencing in the United States.” Vera Institute of Justice. https://www.vera.org/downloads/publications/Vera-Sentencing-Report-2023.pdf.
[19] Przybylski, Roger. 2015. “Effectiveness of Treatment for Adult Sex Offenders.” Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking. United States Department of Justice. July 2015. https://smart.ojp.gov/somapi/chapter-7-effectiveness-treatment-adult-sex-offenders#:~:text=In%20one%20analysis%2C%20the%20effects.