The ABA Journal picked up an interesting story today from Florida that seems to involve the Amendment VIII.
Back in November, Terry Lee Alexander, in prison for armed robbery, was caught masturbating in his jail cell. A female sheriff's deputy saw the act, and he was charged with indecent exposure. During jury selection, the potential jurors were asked about their masturbation habits. All the men and all but two women admitted to the act. In the end, the jury convicted Mr. Alexander on the charges and added sixty days to his sentence.
While I don't argue that the act would be indecent if done in public, it seems to me that it is tremendously cruel to disallow such acts in the privacy of one's home. Prisoners are home in their cell, and when there is no cellmate, the area would be sufficiently private (the deputy saw the act from a nearby control room). He wasn't intimidating her, nor does it seem that he was using her as the object of his fantasy. He was simply trying to indulge himself.
In fact, we could go one step further. Public urination is a crime. The prisoner's cell is being called a public place in this case. In prison, toilets are in the cell. Therefore, the state is forcing the inmates to commit a crime every time they use the toilet. Thus, one would reasonably expect that the male organ in question would regularly be visible, self-gratifying or not.
Sexual acts are a biological necessity for human beings, especially men. Any law that disallows masturbation, even if it is in a prison cell, is at least potentially a violation of the Eighth Amendment's prohibition on cruel and unusual punishment. The ruling in this case is wrong, and his lawyer ought to appeal.
EDIT: The ABA Journal reports today that seven more inmates are being charged by the same female deputy. Writers in the Miami papers are suggesting that this is a large waste of tax dollars. I'd have to agree.
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2 comments:
You actually have more of a point than I would have thought, considering conjugal visits are allowed, why not let this guy have a little conjugal time with himself?
But an argument that this is cruel and unusual punishment because it violates a right of privacy won't fly. If he was given the normal sentence of someone who was convicted of public masturbation, then there probably won't be a problem. I doubt a judge would find it's cruel to not let him masturbate, I don't think flies either, considering the body sort of takes care of it.
And the idea that a prisoner cell is his home and thus he is entitled to privacy rights isn't going to go further either, considering prisoners are not supposed to have many of these rights. It's pretty inconsistent in prison, but prisons are allowed to be inconsistent because the prisoners do not have the same rights.
Prisoners generally have those rights consistent with a state of incarceration. Whether or not their actions can be regulated is based upon a four part test
(1) whether a "valid, rational connection" exists between the regulation and the legitimate interest advanced to justify it and/or those regulations are "reasonably related ot legitimate penological interests; Turner v. Safley 482 U.S. 78, 89 (1987) (quoting Block v. Rutherford, 468 U.S. 576, 586, 82 L. Ed. 2d 438, 104 S. Ct. 3227 (1984)).
(2) whether alternative means for exercising the asserted right remain available. Turner, 482 U.S. at 90 (quoting Pell v. Procunier, 417 U.S. at 827);
(3) whether accommodation of the asserted right will adversely affect guards, other inmates, and the allocation of prison resources generally. Turner, 482 U.S. at 90.;
(4) Finally, "the absence of ready alternatives is evidence of the reasonableness of a prison regulation," however, prison officials do not "have to set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint." Id. at 90-91.
I'm quoting here from the Georgetwon Law Review, and STEVEN J. GOODWIN v. C.A. TURNER. 908 F.2d 1395 United States Court of Appeals for the Eighth Circuit, No. 89-1101WM; July 17, 1990.
It seems here for me that the major issue is 2 and 3, and that given the subjectivity of the claim and Mr. B's argument as to bathroom usage, 2 is really the only issue. He could have easily covered up with a blanket while he autoeroticised. Look's like our prisoner is out of luck.
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