The Kickham Comment - Boston Criminal Attorney Blog
Today, Massachusetts U.S. District Court Judge Mark Wolf delivered a ruling that strains legal credulity, and serves as yet another sign of liberal judicial activism run amok.
It’s a case that almost no reasonable person would even believe would even be heard in court, yet it has, and with a stunningly offensive legal outcome. A brief history: Robert Kosilek was convicted of murdering his wife in 1990; a horrific murder that saw Kosilek dump his wife’s dead body in the trash at a mall in North Attleboro. After being sentenced to life in prison, Kosilek decided that he was “really” a woman, that he suffered from “gender identity disorder,” and sued the Massachusetts Department of Correction (“DOC”) for hormone treatments. He later began receiving those hormone treatments. Subsequently, he sued the DOC because he felt that his case medically warranted the radical approach of sex reassignment surgery, in which the male sex organs are removed and female genitalia surgically “created” in their place.
The DOC refused to provide the surgery, and so Kosilek sued the Commissioner of the DOC in federal court, seeking a federal judge’s order that the state of Massachusetts pay for sex change surgery for this murder convict. Kosilek’s legal argument? That the state’s denial of this surgery constituted “cruel and unusual punishment” in violation of the Eighth Amendment to the U.S. Constitution.
Today, unbelievably, federal judge Mark Wolf ruled in favor of Kosilek – ordering the DOC to provide, and state’s taxpayers to pay for, this outrageous medical demand. To explain in this blog the intricate and complex legal reasons why this judge reached this conclusion, would take more space than I can devote to this post. Suffice to say that, for this or any judge to conclude that the denial of the state providing sex reassignment surgery for this or any inmate constitutes “cruel and unusual punishment,” is a legal stretch in the least. The Eighth Amendment’s prohibition against “cruel and unusual punishment” was enacted by the Founding Fathers to prohibit torture and savagery of the type they had witnessed under King George in the Britain the original colonists fled from: The rack, starvation, being flogged until dead, being burned, eviscerated, stoned to death – I don’t need to go on about how dark the human mind can become when unrestrained.
But denying someone who claims he is “really a woman, trapped inside a man’s body”, free sex change surgery – at the taxpayer’s expense? This is “cruel and unusual punishment”? This strains both legal reasoning as well as basic credulity. Obviously, I’m a Massachusetts criminal defense lawyer, and as such I believe very strongly that defendants’ legal rights be safeguarded vigilantly, and that inmates’ rights be observed also. But this decision has crossed a line of reasonableness, and is an example of liberal judicial activism, out of control. This is plainly and patently unfounded, and it is an outrageous contortion of legal reasoning, which is strained to say the least. Four separate state Corrections Commissioners – two under Republican governors, two under Democratic governors – both rejected this request as unwarranted and unreasonable. This was especially so given the increased security challenges that are unavoidable in allowing this lunacy: If this inmate were to receive this sex change surgery, where should he/she be housed? If in a male prison, Kosilek would have to receive special, elevated security protection from the other inmates. If in a female prison, the female inmates may be at increased risk, as Kosilek was convicted for killing a woman. Every level of rational consideration of this request called for its rejection.
Our state prison system provides for some of the most liberal inmates’ rights and privileges in the U.S. Most states provide the same, as do the federal prisons. If you want some contrast to just how different prisons in the U.S., really are from other countries, I have an interesting suggestion:
Turn on NatGeo on your TV and watch a couple of episodes of “Locked Up Abroad.” It is fascinating television, and extremely riveting. And every time I see it, I shake my head in disbelief at the outrageous torture and punishment that is the norm in countries other than the U.S. Last night I watched a show about a heroin smuggler who was arrested and put into a Soviet gulag during the Cold War. It would send chills up your spine. And you surely must remember the terrifying story of Billy Hayes, which was depicted in the hit movie “Midnight Express.” In that film, Hayes was arrested for drug trafficking by Turkish police and thrown in prison. Among other things, he was hung upside down so that the prison guards could pummel the soles of his feet – an excruciating practice. These atrocities are commonplace all over the world – and it is the Eighth Amendment to our Constitution that was meant to – and appropriately does – ban such horrors. Yet clearly in the eyes of this federal judge, it is “cruel and unusual punishment” to deny a convicted first degree murderer a sex change operation. That is what our country has now come to.
I find this judge’s ruling to be both unsupported legally, and a dangerous precedent in the area of corrections and prison administration. The worst effect of this decision is not just the cost to the taxpayers and the security nightmare placed on prison administration. It is the legal precedent it will set in the area of the expansion of inmates’ rights into areas that have become outright ridiculous. I have been informed that the state plans an appeal to the 1st Circuit Court of Appeals. Hopefully, that court will show more common sense than has judge Wolf in this matter.