Thursday, 20 September 2012

A Most Unpopular Decision

From the Huffington Post : Michelle Kosilek, Inmate Born As Robert Kosilek, Eligible For Legal Fees Reimbursement In Addition To Sex Change Comments that illustrate the popular mood:
So, isn't MURDER cruel and unusual punishment on the victim? I say cut it off and shove it down his throat! 
just ask someone to shank his ass...problem solved ...
Hopefully someone will before the surgery.
It's a credible threat.
Full text of the judgement:

 It's as sordid a tale of deliberate inhuman cruelty - "wanton cruelty" as the judge put it, as you'll ever find.

 Commentary at the American Bar Association Blog.
Ruling Tuesday in a seven-year-old civil rights suit in which a transgender prison inmate has been seeking to have the state of Massachusetts pay for sex-change surgery, a federal judge in Boston agreed with Michelle Kosilek and prison doctors that the operation needs to be performed. “This fact that sex reassignment surgery is for some people medically necessary has recently become more widely recognized,” wrote Chief U.S. District Judge Mark Wolf in a 129-page landmark opinion (PDF). He based his ruling on Kosilek's argument that her Eighth Amendment rights were violated by the prison system's refusal to provide her with adequate treatment for her severe gender identity disorder. It may be the first time a federal judge anywhere in the country has ordered such surgery for a prison inmate, according to the Associated Press and the Boston Globe. Convicted of first-degree murder as Robert Kosilek for the 1990 slaying of her wife, Kosilek, who has had hormone treatments, is serving a sentence of life without parole in a men's prison. The state is reportedly reviewing Wolf's opinion and considering its appellate options.
My take : There’s an obvious problem here, that convicted murderers can’t be treated like decent, law-abiding transsexuals outside prison, because that treatment amounts to torture, so is forbidden by the 8th amendment. The only solutions are to either repeal the 8th amendment, or put in place legislation so law-abiding transsexuals aren’t treated worse than convicted murderers, Your choice. Given the general attitude of society towards convicted criminals, I think repeal of the 8th amendment would be far more popular, popular enough to pass. The other alternative is a non-starter unless a lot more education on the issue is provided.
"The right to be free of cruel and unusual punishments, like the other guarantees of the Bill of Rights, may not be submitted to vote; it depends on the outcome of no elections. The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." -- Furman v. Georgia, 408 U.S. 238, 269 (1972)
"To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison’s failure to provide sustenance for inmates “may actually produce physical ‘torture or a lingering death.’” Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society. " - SCOTUS
“Denying adequate medical care because of a fear of controversy or criticism from politicians, the press, and the public serves no legitimate penological purpose,” Wolf wrote. “It is precisely the type of conduct the Eight Amendment prohibits.”


Anonymous said...

Denying medical care is not punishment it is limited resources just as 5000 children and 23000 adults die each day due to lack of clean water or food.

All criminals must work to get provided resources. If not they die.

Just Datum

Zoe Brain said...

They're not permitted to work.

They're not permitted to choose what they eat, or to buy better food.

They're not permitted to say what medical treatment they get, nor to pay for better.

That suspension of Liberty is the essence of punishment.

In the 18th century, it was the usual practice that prisoners paid for their own food and medical care. The rich lived in luxury, the poor starved to death.

By the time of the War of Independance, it was realised that this was barbaric, unfit practice for a civilised nation.

It's a long time though since America could be called a "civilised society" where human dignity is respected, as the Founding Fathers intended. The Constitution has proven inadequate to the task, now so many don't respect it when it requires them to do something they don't want to.

Anonymous said...

A criminal lost all rights as they broke the social contract. Now you might have a point when you talk about corporations and wage slaves.

Just Datum

Happy walker said...

walking here with a smile. take care.. have a nice day ~ =)

Regards, (A Growing Teenager Diary) ..

Billie said...

I'm an American and I think I come down on your side.

If I had sex with a man and went to tell a trusted person (sex and gender immaterial) about my impressions of how I thought I was raped by this man, I would expect listening and sympathy. Maybe even a hug over tea!

If, instead, I was called a whore and ridiculed and told I had lots to learn about being a real woman with a well endowed man like him, I would probably be insulted and get quite angry.

If I got so angry I killed that person, I would expect I might get caught by the police. If I got caught by the police, I would face being found guilty in court. If I was found guilty in court, I would likely face a prison sentence for killing another human being.

This is the flow of the laws as I know them.

Making a claim of trans-sexuality as a defense for taking another human life is laughable, but this is NOT the case. That claim comes as a mere truth supported by DOC docs and is NOT so laughable.

In truth, she can have as much "fun" with any man she wants using what she has, but men can abuse her the whole time she is in prison. To be raped daily would be very cruel!

With so much tax payer money already spent to apprehend her, take her to court, and the serving of her actual sentence, I see her SRS request as no big thing.

Does one have to ask, What difference does it matter?

Anonymous said...

"I see her SRS request as no big thing."
You also do not see sex without comitment no big thing.
In reality without morals and ethics, we have no social contract or rights.

Just Datum

Anonymous said...

On a more positive--but wholly unrelated--note, did you catch this today, Zoe?

How amazing!

Anonymous said...

Oops, sorry I didn't leave a pseudonym!


Anonymous said...

Only one amendment has ever been repealed in over 200 years; I doubt that this particular issue would sink this amendment.


Anonymous said...

I think that page 5 of the opinion attempts to address your point.

It may seem strange that in the United States citizens do not generally have a constitutional right to adequate medical care, but the Eighth Amendment promises prisoners such care.

It then quotes Brown v. Plata.


LaurenG said...

The thing people are not seeing, is that no matter how despicable and repulsive this person is, and they are disgusting, a judge (appointed by Regan, no less) has ruled that SRS is medically necessary. This is an important legal step, and could start a process of requiring insurance companies to provide coverage for what most medical organizations see as a medically necessary procedure. Soon to come to an insurance company near you?

Anonymous said...

Ever notice how groups feel it a duty to support that which they belong? In the real world we have limited resources and cause and effect. People die of hunger and disease because there simply are not enough resources to keep everyone alive. We have a social contract to make life better for all those who subscribe. Those that break the contract are subject to the consequences. 4 billion people live on less than $2 a day. The developed world is 16% of the world population that uses 75% of the world resources. It seems fair that someone that does no honor the social contract be expelled from the advantages that the contract brings to all the supporters. I sudsiest that we export criminals to a place that has no contract and let them work it out among themselves rather than take from those that do conform to the agreed necessary living conditions that bring a better quality of life.

It seems to me even being trans that I have little in common with those that claim they have the same condition. Humans can not survive in great numbers when we put life above the existing resources. It is not acceptable to act on all your desires when it takes from other's their quality of life.

Just Datum

Anonymous said...

@Just Datum-

Some of my ancestors tried that.

Then 13 of the colonies that were used as prison colonies rebelled.

Their next choice for a prison colony was Australia. That practice ended around 150 years ago.

To put it briefly, even if you love the idea of prison colonies, you eventually run out of space.

They eventually create their own government.


Zoe Brain said...


I sudsiest that we export criminals to a place that has no contract and let them work it out among themselves rather than take from those that do conform to the agreed necessary living conditions that bring a better quality of life.

Heinlein's "Coventry".

I live in Australia. Though it's been a long time since the days of Transportation, there is a cultural memory of it still intact.

It's OK to treat felons harshly and with strict discipline. It's OK to punish them - they deserve it.

But it's not OK to treat them as something lower than human. Not just for their sake, but for the sake of the guards - who also are our cultural ancestors.

And for those of us without convict ancestry - we realise that the only reason we don't is either due to privilege, or luck and smarts so they didn't get caught.

The real bad 'uns never made it out here. They were hanged. It was petty thieves, prostitutes and the like who were transported "for the term of their natural life".

Unknown said...

Just so you know - I express my disdain toward your casual and careless insult of America in a blog post.

Next time you're on a plane to America - please try to remember that it's "uncivilized". And, just as a word to the wise - try to keep your disdain of The Constitution unknown. Americans tend to love their Constitution with a passion I doubt you'd even take the time to understand.

Anonymous said...

@ Grant

Oscar Wilde got a taste of English justice. Perhaps Zoe wants that.


opit said...

It happens that I ended up in rather close contact with a trans who did get a sex change. When you have a condition which is associated with suicide then the diagnosis - and it is that - for remedial surgery becomes less outrageous...even the essence of sanity.

Anonymous said...

The state is appealing it, and here is a fun place with comments:

Anonymous said...

Jamie Dugan said...

Frankly, the ignorance of some Americans is appalling.

Not only do you not understand what your contitution MEANS, you elect idiots incapable of understanding it, incapable of protecting it, and unable to govern a day school center.

The Amendment means what it means - read some history - get a clue.

Learning something about something outside your fishbowl would also help...

Unknown said...

Nothwithstanding the clearly inarticulate commentary about The Constitution of The United States of America you've received on this blog, and the obvious and aggressive refutation I've extended to your criticism of America, may I extend an invitation to you?

Carolyn Ann

Valerie Keefe said...

Carolyn, as the response to this ruling and prison conditions generally, demonstrates, Americans do not love the constitution. They believe the 4th, 5th, and 8th amendments, among others, should have no legitimate force and effect. If they did not, they would not react to medical care being provided in prison with this level of venom.

Zoe: Yes, our current system of arbitrary gatekeeping is cruel-and-unusual, and it continually strikes me as contemptible that cisfeminists don't really seem to care about reproductive health care on demand when we're talking about estrogen instead of mifepristone.

bradmaddox said...
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