A few months ago a Massachusetts judge ordered the state’s taxpayers to pay for the sex change operation of an inmate, which generally cost between $30,000 and $80,000. You can read the full story here. The inmate suffers from gender identity disorder (‘he’ was born male and was male at the time of ‘his’ crime, but has now changed ‘his’ name to Michelle and refers to ‘himself’ as a woman. The link above uses female pronouns to describe the inmate based on the gender ‘he’ self identifies with, but I found that confusing because ‘he’ was male when ‘he’ committed the crime, and ‘he’ has not yet had the surgery. For the purposes of continuity, simplicity, and minimizing confusion, I will refer to ‘him’ with male pronouns throughout this entry). He is currently serving a life sentence for murder; apparently, his wife came home early one night and caught him trying on her clothes, and in what he claims was a panic he killed her. Since admission to prison, he has twice tried to castrate or kill himself, and was receiving psychiatric care/hormonal supplements (also at taxpayer expense). The judge ruled that because his psychological condition was so severe, imprisoning him without adequate medical treatment for his ailment constituted cruel and unusual punishment, thus violating the eighth amendment.
My initial reaction to this story was to roll my eyes, and I’m sure I wasn’t alone. Most people (myself included) have never met somebody with gender identity disorder, making us naturally suspicious of whether it really counts as a “sickness” that taxpayers should be on the hook for. Honestly, I’m suspicious about psychiatric illnesses in general, which are often obscure, subjective, constantly changing, ever-expanding, culturally biased, unreliable and difficult to distinguish. For example, some of them seem to apply only to Japanese people who visit Paris. Others have only ever been confirmed among people who had a history of prior mental illness, suggesting they may just be offshoots or symptoms of some deeper mental problem. Homosexuality used to be considered a psychiatric disorder, and some still contend that it is. Gender identity disorder itself is often not permanent; psychiatrists admit that the vast majority of children with its symptoms eventually “outgrow” it. This cynicism is compounded by the deep financial ties many psychiatrists have to pharmaceutical companies; as I’ve noted on this blog in the past, there’s a lot of money to be made by telling healthy people they’re sick. Perhaps from a medical perspective it makes sense to keep track of every possible offshoot of a disorder and distinguish their symptoms, but from a legal perspective it’s tempting to just say “these people went crazy.” As Obamacare demonstrated, taxpayers are being placed on the hook for an increasingly broad definition of “healthcare” (do glasses count? Condoms/birth control? Abortion? Nutritional supplements? Healthy foods? Pregnancy tests? And now I’m legally required to pay for insurance coverage on all of this, whether I need it or not?) Because we libertarians are even more resistant to taxpayer extortion than most people, it’s no surprise that at first this seemed like another ridiculous example.
But after some thought, I realized this issue brought up some much deeper, more interesting questions about what counts as “cruel and unusual punishment” under the eighth amendment. That phrase is so open, ambiguous and subjective that it’s difficult to know exactly what the framers meant by it. Considering how much social standards have evolved since then, I suspect the framers would not have found this particular case to be cruel and unusual punishment. But the fact that those standards have indeed evolved makes originalism even harder to justify without explicit proof of that intent. So while I still don’t agree with the judge’s decision, I don’t know that I can really rebut it, because I don’t think the judge was objectively wrong. Besides, even if I’m right about its constitutionality, just because withholding this surgery is constitutional doesn’t make it a wise or humane policy.
There are two potential reasons I could see justifying the use of taxpayer money to pay for this surgery: effectiveness of punishment, and mercy. Is providing this treatment necessary in order to accomplish the objectives of the criminal justice system? If not, is detaining the man in such a distressed state tolerable for a sympathetic society?
The answer to the first question depends on what you feel the most important objectives of the criminal justice system are. On the one hand, prison is designed to create some level of anxiety, discomfort, and psychological distress. It’s not supposed to be a fun place. On the other hand, how much stress and suffering is necessary or tolerable depends on the goal the incarceration is trying to accomplish. If the goal is merely keeping the individual off the street to prevent them from harming others, the conditions don’t much matter so long as the facility is secure. If the goal is deterrence, then adverse conditions serve an important purpose. If the goal is rehabilitation, more favorable conditions conducive to introspection and self-improvement might be preferable. If the goal is retribution, the level of suffering should depend on the crime committed. Ideally, the justice system should aim for all four of these goals simultaneously, in different amounts depending on the individual case.
As it relates to this case, neither denying nor providing the treatment seems to be critical to the end objective. Protecting the populace from a murderer is of the utmost importance (as opposed to, say, protecting them from someone who owes back taxes), but accomplishing that doesn’t require keeping the murderer in a psychologically uncomfortable situation. Deterrence is always up for debate, but it might not be applicable in this case: although we certainly want to deter murder in general, the fact that this man appeared to have gone crazy suggests that he and others like him could not have been deterred. Rehabilitation may not be necessary because the individual is on a life sentence (although in the event he gets out early, it would seem this operation is a necessary step to leading any type of normal life). And retribution strikes me as an insufficient justification for torture. Perhaps if his victim was my sister or mother I might feel differently, but vengeance doesn’t seem like a good reason to keep someone in a suicidal state. The answer to the first question seems inconclusive. But since there’s no pragmatic advantage either way, there’s no pragmatic justification for making taxpayers foot the bill.
The other way this might be justified is mercy. There is broad consensus that torture is wrong, and cannot be justified even if it’s cheaper than the alternative. So, does this count as torture?
To some extent, there is a distinction between deprivation and infliction. When it comes to the 8th amendment, I believe the framers were primarily concerned with the latter. Actively inflicting pain on someone with a weapon or tool or device of some sort seems different to me, and more cruel, than the failure to give them something which might relieve existing distress. Another distinction is that infliction requires the forcible expropriation of additional resources from the taxpayers, whereas deprivation prevents it. It is a very different thing to make law abiding citizens pay for a torture device than it is to not make them not pay for healthcare, especially such broadly defined healthcare as a sex change operation.
At the same time, it is clear that deprivation can sometimes count as cruel and unusual punishment. Withholding a basic level of subsistence like food would cause starvation, which certainly seems like torture. Usually, we distinguish between necessary and superfluous provisions by distinguishing between “wants” (like caviar or luxury linens) and “needs” (like food, water, shelter, and basic healthcare). But these are not concrete terms. Incarcerating somebody with such scant food or water that they begin to starve is probably cruel. Giving them meager food and water, sufficient for bodily function but not enough to really fill them up, probably isn’t. Withholding expensive healthcare (like a brain surgery) for illnesses with a terrible prognosis, or unreliable healthcare (like an alternative, herbal remedy for cancer) seems borderline. Withholding frivolous, non-survival-related healthcare (like Listerine or condoms) is even more borderline.
Drawing this line is difficult, and it’s important to consider the impact of where we draw it on state budgets (and taxpayer wallets) across the country. If the line is drawn to include sex change operations and psychiatric disorders, what precedent would this set? Is that really a “need” that you cannot live without? If all prisoners are entitled to as much healthcare as they want, it leaves the door open to giving them just about anything. Do we have to pay for their vitamins to ensure they get enough calcium and don’t develop osteoporosis? Must we provide dental floss and foot powder and rash ointment and chapstick and Vaseline and Tylenol? These things are “healthcare” in that they improve one’s health or alleviate irritating health symptoms, but they’re still inaccessible luxuries to most of the world’s inhabitants. If an inmate wants to use his own private funds or insurance to pay for a medical treatment while in prison, that should be permitted. But it’s not right to force taxpayers to pay extra for those perks, and a sex change operation seems inessential to that minimum level of sustenance.