New York Times
September 8, 2001
Skepticism Follows Court Ruling in Favor of Inmate Procreation
By WILLIAM GLABERSON
A federal appeals court declared this week that male prisoners have a constitutional right to procreate. Yesterday, that ruling drew criticism around the country, with some lawyers predicting it would be overturned by the United States Supreme Court.
The ruling, issued on Wednesday by the United States Court of Appeals for the Ninth Circuit in San Francisco, came in the case of an inmate serving a life sentence who argued that he should be able to ship semen out of prison for the artificial insemination of his 46-year-old wife.
No federal appeals court had previously recognized a prisoner's right to procreation. A dissent ridiculed the majority for inventing a right to procreate "from prison via FedEx
Some prisons have permitted conjugal visits in the past, but many have not. The 2-to-1 decision said modern techniques for procreation without sexual relations raised new legal issues. Procreation, the court said, is "not inherently inconsistent with one's status as a prisoner."
The criticism reflected skepticism that often meets rulings expanding prisoners' rights, especially by the San Francisco court, which has a reputation for liberal rulings. The court's decisions govern nine states including Alaska, Oregon, Washington and California.
Dora Schriro, a former corrections official who is now a senior policy fellow at the University of Missouri at St. Louis, said the opinion ignored the fact that prisoners lose certain rights, even if they lose them permanently because of life sentences.
"Life means life," Ms. Schriro said, "and some new technology should not affect sentencing and its many ramifications."
Michael Rushford, president of the Criminal Justice Legal Foundation, a conservative group in Sacramento, said it was bad policy for the courts to make it easier for prisoners to father children.
The decision had some defenders. Eric Balaban, a lawyer for the National Prison Project of the American Civil Liberties Union, said the courts had recognized that prisoners like the one in this case, William Gerber, did not lose all their rights. "He wasn't sentenced to be sterilized," Mr. Balaban said.
All three judges who participated in Wednesday's decision were appointed by Democratic presidents. The majority opinion was written by Myron H. Bright. Judge Stephen Reinhardt agreed. The dissent was by Judge Barry G. Silverman.
Mr. Gerber is serving a sentence with no possibility of parole on charges of making terrorist threats and discharging a firearm, and narcotics offenses. He offered to pay to send his semen to a sperm bank.
Under the ruling, a trial court is to decide whether there are legitimate prison management issues that would justify a total ban by prison officials on Mr. Gerber's ability to procreate.
Copyright © 2001, New York Times Company. All rights reserved.
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