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February 10, 2018

Should there be (and will there be) an appeal of federal judge's imposition of "shorter sentence because ... of [defendant's] decision to be sterilized"?

Mf-law-day-bbf-3-5-4-15-300x160In this post a couple of days ago, I noted the remarkable federal sentencing story out of Oklahoma in which a defendant was seemingly seeking a reduced sentence in a fraud case because she followed a judge's suggestion in this order that she consider taking steps to be "rendered incapable of procreation."  This follow up article, headlined "Oklahoma woman gets shorter prison sentence because she got sterilized," the defendant's decision to follow the judge's suggestion seemingly reduced her sentence a few months. Here are the details:

A judge Thursday showed leniency to a drug-using mother of seven because she had surgery to prevent further pregnancies.  Summer Thyme Creel, 34, was sentenced to a year in federal prison and three years on supervised release for passing counterfeit checks.  She was ordered to pay $15,246 in restitution.

Creel voluntarily underwent the medical procedure in November after the Oklahoma City federal judge suggested it in a scheduling order. "She will receive a shorter sentence because she made that decision," U.S. District Judge Stephen Friot said before announcing the punishment.  Friot on Thursday also defended his sterilization suggestion, saying the U.S. Supreme Court "has yet to recognize a constitutional right to bring crack- or methamphetamine-addicted babies into this world."

In his order last June, the judge called Creel a habitual user of crack cocaine and methamphetamine. He wrote in that order she had given up her parental rights to six of her seven children and likely had used illegal drugs while pregnant.  He then wrote he would consider at sentencing medical evidence Creel had undergone a sterilization procedure "if (and only if) she chooses to do so."

Creel had faced up to 16 months in federal prison under sentencing guidelines intended to keep punishments uniform across the country.  Judges do not have to follow the guidelines, though, and the maximum possible punishment for Creel's offense was 10 years in prison.  The unusual order — first reported by The Oklahoman — attracted national and international attention.  The judge has been both praised and condemned.

"When I read the order, I was horrified,” Lynn Paltrow, founder of the National Advocates for Pregnant Women, told The Washington Post. "We find it highly unlikely that this judge has asked any man how many children he fathered and used that in his sentencing determination."  The judge Thursday did not directly comment on the public criticism.

He did state his order last year had made clear that "the decision as to whether to be sterilized would be for Ms. Creel and Ms. Creel alone to make." He also explained he would not have counted it against Creel if she had decided against the procedure. "She would have come before the court in the same posture as any other habitual criminal," he said. "Her fertility would have been a non-issue."

The judge chided a prosecutor for telling him in a sentencing memorandum Creel has "a fundamental constitutional right to procreate." The prosecutor in the memo had cited a 1942 U.S. Supreme Court decision that found unconstitutional Oklahoma's Habitual Criminal Sterilization Act. "This is rather curious," the judge said of the prosecutor's position on the issue. The judge then pointed out the 1942 decision had involved involuntary sterilization. He said the prosecutor apparently overlooked that fact.

Creel was punished Thursday for her involvement in a fraudulent check-cashing ring that used information from stolen mail to manufacture counterfeit checks. "Theirs was a systematic and successful identity theft scheme," the judge said.  She pleaded guilty last year to one federal counterfeiting offense.  She admitted she had passed a $202.22 counterfeit check in 2014 at a Walmart in Moore.

She has prior theft and counterfeit check convictions in county courts but always received probation.  She originally had sought probation in her federal case. That possibility ended when she was arrested for passing a $121.71 counterfeit check at a Hobby Lobby in Midwest City a month after pleading guilty.

She also has tested positive for methamphetamine use — twice — since her guilty plea. The second time, the judge had her jailed pending sentencing. Her defense attorney, Brett Behenna, told the judge Creel has had a tough life and became caught in a cycle of poverty. He said she turned to illegal drugs as an escape....

"I'm sorry for the mistakes that I made," Creel told the judge. Another participant in the scheme, Amber L. Perkins, 43, was sentenced last March to five years in prison and ordered to pay $159,753 in restitution.

This five-page order that the Judge Friot issued in conjunction with the sentencing leaves no doubt that the defendant's sterilization decision was a consequential factors in his sentencing decision. Here are the closing paragraphs of the order:

If anything was clear from the court’s June order, it was that the decision as to whether to be sterilized would be for Ms. Creel and Ms. Creel alone to make.  The short of the matter is that Ms. Creel will get the benefit of her decision to be sterilized.  She will receive a shorter sentence because she made that decision.  But a decision not to be sterilized would not have counted against Ms. Creel for sentencing purposes — she would have come before the court in the same posture as any other habitual criminal. Her fertility status would have been a nonissue.  Moreover, if we assume, as the government urges, that the court’s approach to sentencing in this case might raise a constitutional issue, the court will note that the Supreme Court has yet to recognize a constitutional right to bring crack or methamphetamine addicted babies into this world.

Accordingly, in determining the sentence to be imposed upon Ms. Creel, the court will take into account all of the factors spelled out in 18 U.S.C. § 3553, a determination which will give Ms. Creel the benefit of her decision to be sterilized.

As federal sentencing gurus know, any appeal of this sentencing proceeding would be generally subject to a reasonableness standard of review. Though I have not read the full record, I am still inclined to consider Judge Friot's work here unreasonable because he unduly suggested that sterilization was an essential (and perhaps exclusive) way for this defendant to "earn" a below-guideline sentence. 

I generally believe (and often have argued) that a wide range of considerations can and should be brought to bear as a federal sentencing judge considers, under 18 U.S.C § 3553(a), what sentence will be "sufficient, but not greater than necessary, to comply with the purposes set forth" by Congress.  But it strikes me as highly problematic for a judge, prior to sentencing, to tell a defendant that a reduced sentence will be possible if (and perhaps only if) the defendant engages in specific life-altering personal behavior.  The procreation dynamics here are particularly concerning in light of some ugly history on this front; but I would also be troubled if a judge said to a defendant, for example, I will likely cut you a sentencing break only if you divorce that spouse who pressured you into criminal activity or only if you contractually commit to giving 50% of all future salary to charity.

That all said, and as my post title suggests, I suspect that there will not be an appeal of this sentence by the federal government (or the defense) and so we will not likely see a higher court reviewing Judge Friot's work here.  But, of course, that should not prevent the court of public opinion from chiming in, perhaps using the comments here.

Prior related post:

February 10, 2018 at 11:15 AM | Permalink


There should not to avoid wasting tax money. She had 7. It is too late, and her offer is meaningless. Her spawn will commit ten of thousands of crimes, and generate $millions in damages to our economy.

Posted by: David Behar | Feb 10, 2018 11:38:41 AM

Reference is made to "no limit" on information that a judge can "consider" for imposing an appropriate sentence. I gather there could be some sort of patently unreasonable information here, such as "if the person is Catholic" or something.

The "engages in specific life-altering personal behavior" test is rather broad. Why wouldn't that include drug treatment? Any number of things are "life-altering." What is specifically concerning here is the clear constitutional liberty interest involved in procreation (marriage -- the divorce example -- is another such interest). The charity example seems different there though its reach is concerning. Plus, there might be some sort of constitutional liberty interest involved there involving property rights.

As noted by someone in a past comment, the judge's "but this is voluntary!" argument is a tad specious. An objective observer would deem it coercive that it was stated that sterilization could result in the reduction of sentence. Since the government itself, going by the five page order, counseled against factoring that in, I can see an appellate court being concerned. Still, it would seem strange for the defendant to be burdened if it is found the judge shouldn't have let's say taken a year off the sentence for that reason. So, an appeal would be unjust on that ground.

Is there a sensible way to bring suit to address this wrongful action?

This comment btw is particularly gratuitous:

"Supreme Court has yet to recognize a constitutional right to bring crack or
methamphetamine addicted babies into this world."

Actually, if a pregnant woman is addicted to drugs and in the process transmitting drugs to her fetus, she has a constitutional right to bring said fetus to term. In this respect, babies addicted to drugs have a right to come into this world.

Posted by: Joe | Feb 10, 2018 11:39:43 AM

"babies addicted to drugs have a right to come into this world"


A woman has a right to give birth, this is not the same as the baby having a right to be born. On the contrary, because the woman also has a right not to give birth, the baby has no right to be born (to be brought into this world).

In IVF, five eggs may be fertilized, but only one is implanted. The other four do not have a legal claim to also be born or receive damages.

Posted by: Woman's right, not baby's right | Feb 10, 2018 12:46:06 PM

The last comment is a side issue given the judge spoke about "bringing" babies into the world, which would apply to the woman.

I readily concede the two things cited are not the "same" and that women have the right not to give birth. It is to be noted that the Supreme Court accepted a viability line with life/health exceptions so that there is a limit to some right not to give birth after viability. Anyway, my comment applied to a specific situation.

IF a woman decides to give birth to an addicted fetus, "in this respect," there is a "legal entitlement" (a "right") in place for the baby to be born. Given the viability line for the right to abortion, as a legal matter, there can be a statutory "right" to be born even against the will of the woman to some extent.

The last point about IVF etc. is duly noted. It doesn't change the above. It is not assumed a fetus has a right to be born against the will of the mother generally or that going back to the fertilized egg that there is some right for eggs to develop or anything of that nature. Anyways, the whole thing is largely beside the point -- "brought into the world" addresses the woman here. And, yes, as is surely not disputed, a woman has a constitutional right, even if the fetus is addicted to drugs, if she chooses, to bring the fetus to term and give birth.

Posted by: Joe | Feb 10, 2018 3:25:04 PM

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