Gursharon Shergill, 2016 Sarah Weddington Writing Prize Winner
This article is based on a scholarly paper titled Functional Sterilization: Juvenile Life Without Parole and the Right to Procreate. The paper won third prize in the 2016 Sarah Weddington Writing Prize for New Student Scholarship in Reproductive Rights. To learn more about the Writing Prize, including how to submit an entry, click here.
The United States prides itself on the fundamental, constitutional rights of its citizens. One such fundamental right is the right to procreate. Yet, the United States has a sordid history of impeding this right through legally-sanctioned, coercive sterilizations. These coercive sterilizations, often under the guise of “family planning,” primarily affected people of color, people receiving welfare benefits, and those deemed mentally incompetent or insane. After public outcry and several lawsuits, Congress finally passed laws to mandate consent and punish coercive sterilization in 1975.
Despite these developments in reproductive rights legislation and the Supreme Court’s recognition of a fundamental right to procreate, incarcerated individuals continue to be subjected to both forced physical and functional sterilization. While public outcry relating to the forced physical sterilization of incarcerated individuals has garnered much attention, little thought has been given to the functional sterilization of those sentenced to life in prison without the possibility of parole. This presents a unique and important issue in the United States, as it remains the only nation that sentences children to life without parole for crimes committed before turning 18. The effect of such sentences is the imposition of an acutely severe punishment – never experiencing a full, unimpeded right to procreate.
The unique lifelong sterilization of juveniles sentenced to life without parole occurs as a result of legal and policy-driven infringements on their procreative rights as minors, prior to incarceration, combined with legal infringements on their procreative rights once incarcerated. Prior to incarceration, criminal statutes, such as those defining the age of consent, along with government-sponsored programs aimed at preventing teenage pregnancy encroach upon the procreative decisions of juveniles. Once incarcerated, the lower standard used by courts to evaluate the constitutionality of infringements on fundamental rights – they must not be fundamentally inconsistent with imprisonment – means that prisons’ prohibitions on procreation easily pass constitutional muster.
Since juvenile life without parole sentences effectively proscribe the opportunity to procreate, the result is functional sterilization by lifetime legal infringement on a fundamental right to procreate – a form of informal eugenics. This functional sterilization of children labeled as “superpredators” amounts to cruel and unusual punishment under the Eighth Amendment. As considered by the Supreme Court when analyzing punishments under the Eighth Amendment, it’s clear that sentencing juveniles to life without parole is inconsistent with the evolving standards of decency, as several states have banned such sentences, and jurisprudence clearly directs that children should not be permanently deprived of their right to procreate. The Supreme Court’s emphasis on the fact that youthfulness is relevant to the Eighth Amendment also informs this argument, as juveniles are less culpable than adults. The punishment – functional lifetime sterilization – outweighs the crimes of youth and serves no penological goal. Instead, it is a eugenics policy deeming children, mostly poor, of color, and often mentally disadvantaged, as unworthy of reproducing. Accordingly, juvenile life without parole must join the ranks of categorically banned sentences based on the youthful characteristics of the offenders.
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