Disgraceful Example of Hard Bargaining in Plea Bargaining

Yesterday the AP reported that prosecutors in Nashville, Tennessee “made sterilization of women part of plea negotiations at least four times in the past five years.” The cases all seemed to involve mistreatment or neglect of children and some involved seriously mentally ill defendants.

The article makes it clear that these are just the known cases and that this suggests “the practice may not be as rare as people think and may happen more often outside the public view and without the blessing of the court.”

The article goes on to cite examples outside of Tennessee, including cases from West Virginia and Virginia where defendants agreed to reduced prison time in exchange for undergoing sterilization operations—in cases that did not always involve children (one was a simple possession with intent to distribute marijuana).

This is yet another example of the danger of the extreme power prosecutors have in the plea bargaining process. One wouldn’t think that in 2015 anyone would need to be told that the state forcing sterilization operations in exchange for better plea deals is a problem.

As the public defender in one of the cases, Mary-Kathryn Harcombe noted, “Any time a woman is given a choice between prison and this surgery, that is inherently coercive…” I would also add it is disgraceful and contrary to the prosecutorial ethical duty to seek justice.

Hat tip to Sentencing Law and Policy for posting this story.

4 thoughts on “Disgraceful Example of Hard Bargaining in Plea Bargaining”

  1. I would also like to tip my hat to Sentencing Law and Policy for posting this story.

    I feel a definite uneasiness about sterilization of women as part of plea negotiations, and I have several concerns. First, I would like to know whether the seriously mentally ill defendant even has the mental capacity to make medical decisions regarding her reproductive abilities now or in the future. If not, then who is bargaining on the defendant’s behalf? Second, the bargaining power of the state seems very coercive if a defendant is willing to undergo permanent sterilization in exchange for less temporary prison time. Third, I think taking away a the defendant’s ability to have children would impair her rehabilitation back into society. It could make a prisoner more hostile, angry, or reckless with less reason to reform her behavior. And my last concern is about whether the state is using the sterilization as its only offered plea bargain. If the state is offering either sterilization or no plea at all, then that’s an extremely coercive and unethical tactic. On the other hand, if it were the defendant that offered her own sterilization to improve a plea deal already offered by the state, then it would be the defendant’s choice to be sterilized instead of a coerced acceptance.

  2. I think that it is definitely important to look at each one of these cases in light of its own facts rather than making absolute conclusions on either side of this argument. However, emotional and persuasive arguments can be made on either side of this issue. And regardless of the particular case, I find extremely difficult to see this is a bargaining tactic that is appropriate.

    Even in an interest-based negotiation where the defendant may feel that they have an interest in not having more children, those interests may change over time. If you take into account things like age, relationship status, drug use, or the like, a person’s interests might have a very good chance at changing by the time they are released from incarceration. I think one of the reasons I find this to be a particularly disturbing bargaining term is that one of the goals of our sentencing system is rehabilitation. For prosecutors to be coercing defendants into giving up not only their rights but also their ability to have children after they have served their sentence and hopefully been rehabilitated is just inappropriate.

    I would hope that the more these cases are discovered and brought to light, the more clear it will become that committing to a sterilization procedure has no place at the plea-bargaining table.

  3. Terry,

    I understand the desire to evaluate each case individually, but I do think we not only can, but should, have blanket rules to provide basic protection of rights. For example, we do not allow corporal punishment in this country as a sentence for criminal convictions. We also have a rule prohibiting coercion in plea bargaining, although the Supreme Court has a limited view of what constitutes coercion. The concern here is not that a woman (or a man) may have an interest in not having more children. The concern is what is the state doing to exercise pressure on people to get them to agree to medical procedures they might not otherwise agree to? I think this is a serious concern, particularly when considering the well documented fact that we pull in disproportionately higher numbers of poor and minority people into our criminal justice system and that once accused of a crime, a person is in a vastly unequal bargaining position compared to the prosecutor. This situation calls for heightened protection, not lesser protection.

  4. The cases referenced in this brief article vary greatly. The cases that involve mistreatment or neglect of children are very different than the misdemeanor drug case. The prosecutors and defendants may have been engaging in interest based negotiations. The state does have a strong interest in stopping the mistreatment and neglect of existing and future children. The defendant has an interest in avoiding jail time – and she may also have an interest in having no more children. While I strongly support women’s rights, I also strongly support children rights. If I am forced to choose, I will support the rights of innocent children who cannot represent themselves. Every case should be reviewed on its own facts and blanket criticisms are unfair.

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