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April 5, 2019

Split Sixth Circuit panel debates status of lawsuit over Tennessee judicial order that gave reduced jail time to inmates agreeing to sterilization

Regular readers may recall (but still may not believe) prior posts here and here a few years ago about the Tennessee judge who had a standing court order offering 30 days off a defendant's jail time for "voluntarily" agreeing to have a vasectomy or birth control implant.  A lawsuit over this order in federal court made it to the Sixth Circuit and resulted in a split decision yesterday in Sullivan v. Benningfield, No. 18-5643 (6th Cir. April 4, 2019) (available here).  Here is how the majority opinion gets started:

In May 2017, Judge Sam Benningfield issued an order offering a 30-day sentencing credit to inmates in White County, Tennessee.  There was one condition: to obtain the credit, inmates had to submit to sterilization.  After public outcry about the sterilization-for-sentencing-credits program, Judge Benningfield issued a second order declaring that inmates could no longer enroll in the program, followed by a third order clarifying which of the inmates who initially enrolled could still receive the sentencing credit.  Within months, the Tennessee Legislature passed Senate Bill 2133, which made it illegal for courts to make sentencing determinations based on a defendant’s willingness to consent to sterilization.

Christopher Sullivan, Nathan Haskell, and William Gentry — inmates who refused to submit to a vasectomy and were consequently denied the sentencing credit that was awarded to inmates who underwent sterilization — challenged Judge Benningfield’s orders under the Equal Protection Clause, arguing that the orders subjected inmates to differential treatment on the basis of their procreative rights and their sex.  The district court found that the claims were moot in light of the passage of Senate Bill 2133 and Judge Benningfield’s second and third orders.  Because none of those subsequent developments in the law ended the differential treatment that plaintiffs challenge, we reverse and remand for consideration of plaintiffs’ claims on the merits.

Here is the start of the dissenting opinion:

None of the Plaintiffs suffered any injury in this case.  Plaintiffs’ sentences were not increased; rather they served their sentences as originally ordered.  Being offered contraceptive services, even being encouraged to accept free contraceptive services, is not an injury in fact for purposes of standing.  Plaintiffs did not receive the vasectomies and their right to procreate has not been hindered in any way.  Cf. Harris v. McRae, 448 U.S. 297 (1980) (explaining that even when the government favors childbirth over abortion by subsidizing one decision over the other; such regulation does not impinge on the constitutional freedom to make those decisions because it imposed no restrictions on access to abortions); Maher v. Roe, 432 U.S. 464, 474 (1977) (“The State may have made childbirth a more attractive alternative, thereby influencing the woman’s decision, but it has imposed no restriction on access to abortions that was not already there.”).

Plaintiffs also did not suffer any “differential treatment.”  See Scarbrough v. Morgan Cty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006) (“The threshold element of an equal protection claim is disparate treatment....”).  Every inmate was received the same offer.  The fact that two of the three Plaintiffs exercised their right to refuse the offer and preserve their right to procreate actually underscores the point.  Cf. Corbitt v. New Jersey, 439 U.S. 212 (1978) (criminal defendants who refused plea deals to protect their right to trial by jury thereby facing a mandatory life sentence if convicted, rather than pleading guilty in return for a lesser sentence, were not denied equal protection because “[a]ll ... defendants [were] given the same choice”).  For these reasons, I would affirm the district court’s conclusion that the Plaintiffs’ lacked standing.  I therefore respectfully dissent.

Prior related post:

April 5, 2019 at 12:13 PM | Permalink

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