Sentences Inscribed on Flesh

Texas District Judge Michael McSpadden has a solution for rapists: castrate them. Steven Allen Butler, an accused rapist, had an offer for Judge McSpadden: Castrate me. Last winter, while he was on probation for molesting a seven-year-old girl, Butler was arrested for the rape of a 13-year-old. In October, after McSpadden aired his views on castration in the Houston Post, Butler's attorney proposed a deal. Instead of undergoing a trial in which he faced a plea-bargained 35-year prison sentence, Butler agreed to be surgically castrated if he could go free at once on probation. McSpadden said fine.

Now Butler has a new attorney, and second thoughts. Butler's relatives declared last week that he would prefer to stand trial after all, rather than go through with the surgical procedure. The reversal followed an outcry from legal experts, which drew attention to the implications of allowing prisoners to barter body parts for their freedom.

There are times when the government lays its hands, sometimes not so gently, on the human body. But the judicial system's responsibility to justify its actions grows heavier as it presumes to act more seriously against the flesh -- or one's "bodily integrity," as some legal thinkers and ethicists put it. At one end of the spectrum is the police officer who gently pushes back a crowd when a parade comes down the street. At the other end is the executioner. In between are compulsory blood tests for drug use or AIDS, court-imposed caesareans and the sterilizations that were once imposed upon the retarded. While admitted criminals have fewer protections than other citizens, the constitutional bans on unreasonable search and seizure and cruel and unusual punishment should protect them from unjust violations of the body. But the courts have never reached a consensus about which punishments are cruel or unusual. And if the accused agrees to the penalty, who's to object?

"There should be an overwhelming presumption against having the long arm of government touch the human body and the human psyche in intimate ways," says Harvard law professor Laurence Tribe. By that measure, modest intrusions with & clear benefits can pass the test. One example: because there is strong evidence that compulsory vaccination is an effective public health measure, the Supreme Court has approved it even for those with religious objections.

Surgical procedures, more painful and profound, make courts more wary. Two years ago, a Chicago court refused to require twins to undergo tests to determine if their bone marrow could help their half brother who was dying of leukemia. In 1987 a Washington federal court ordered a pregnant cancer patient to undergo a caesarean delivery in an attempt to save the fetus, even though she and her doctors opposed the operation. The baby lived for just two hours. The woman died two days later. But the lower-court ruling doesn't provide a precedent because it was vacated by an appeals court the following year.