Jesse Herald may not be the guy you want to have pick up the kids from school, but then, that wouldn’t make him particularly unique.  What does is the plea deal he cut for a child endangerment charge that left him doing five years less than he might otherwise.  Via Komo News:

A Virginia man who has fathered children with several women has agreed to get a vasectomy to knock up to five years off his prison term in a child endangerment case that has evoked the country’s dark history of forced sterilization.

None of the charges against Jessie Lee Herald, 27, involved a sexual offense. Shenandoah County assistant prosecutor Ilona White said her chief motive in making the extraordinarily unusual offer was keeping Herald from fathering more than the seven children he has by at least six women.

You may be wondering what Herald’s fathering seven children by six women has to do with his crime.

Herald, of Edinburg, was sentenced this month to one year and eight months in prison for child endangerment, hit and run , and driving on a suspended license in a crash in which authorities said his 3-year-old son was bloodied but not seriously hurt.

Nothing. There is no connection between the crime and the punishment sought by Shenandoah County assistant prosecutor Ilona White, who simply decided it was a really good idea for a guy like Herald to stop having babies.

Herald agreed, if reluctantly, to the deal.  His attorney, Charles Ramsey, didn’t see a problem, and perhaps it wasn’t for Herald.  Whatever time he saved in prison may have been worth the snips to him. Others saw it differently.

[T]he agreement immediately calls to mind the surgical sterilizations carried out in Virginia and dozens of other states during the 20th century under the discredited pseudoscience called eugenics, said Brandon Garrett, a University of Virginia law professor.

“This takes on the appearance of social engineering,” said Steve Benjamin of Richmond, past president of the Virginia Association of Criminal Defense Lawyers, who said he has never heard of a case like Herald’s.

Ramsey disputes any connection to eugenics, which may be fair in Herald’s case.  After all, it appears the prosecution’s nose was stuck in Herald’s ability to support and care for the seven children already spawned, and not adding insult to injury.  Whether White had any business being concerned with such matters is another question.  A very real question.

The imposition of surgical intervention isn’t quite as novel as suggested.  Vasectomy has been proffered as a solution for pedophiles and rapists who are feared to be recidivists and incapable of controlling their sexual urges.  But this case presents an entirely different issue, because of the disconnect between the offense and the solution and the gaping hole between legitimate justifications for punishment and the wholly unrelated social engineering.

And that’s where the eugenics concern comes in.  Even if Herald’s case may not fit well into the paradigm, once vasectomy disconnected from the offense becomes an available bargaining chip to achieve a better society in the prosecution’s eyes, a lot of damage can be done.

Ordinarily, the defense posture is that anything that spares a defendant time in prison should be available for use in the negotiating process.  After all, it’s a negotiation.  We trade off things that matter less to a client for things that matter more, and for a fellow like Herald, a vasectomy might not be the biggest deal.  He does, after all, have seven kids already, and that may be more than Herald can handle.

But the next guy who gets offered the v-deal may not be in the same position, and the trade-off may not be so benign.  Considering the scope of threat that a prosecutor can put into play by overcharging, for example, a person who is facing 100 years, to be cut to ten if he gets a vasectomy, may feel he has no choice but to take the deal and undergo surgery, or he will never breathe free air again.

And what if the prosecutor’s real purpose is to rid the state of someone she thinks is just too evil, or too dark-skinned, or too stupid, or too crazy, to procreate?  Perhaps the prosecutor won’t admit it, or will have a far more benign excuse available for public consumption, but real motive is hidden away where no one ever sees it.

There are some places where the legal system has no business going, and this is particularly true when there is no cognizable connection between an alleged crime and the social engineering purpose of sentence.

Given the inherently coercive nature of plea bargaining, and the asymmetry of power between prosecution and defense, the threat of some sort of neo-eugenics playing out is very real.  This would be intolerable.

But it goes further.  When the terms of punishment have no bearing on the offense for which the punishment is imposed, there is no rational legitimacy for its imposition.  Sentences aren’t free-floating punishment, but directed to specific purposes that serve a legitimate societal purpose.  If the punishment fails to serve those purposes, or, as here, has nothing whatsoever to do with the offense for which the sentence is being imposed, then it cannot be justified.  Just because society has the brute force to impose punishment does not mean it has any authority to do so.

This is a bad idea, and one that should be rejected by the court as a matter of public policy.  As for the length of time Herald saved by agreeing to a vasectomy, the prosecution apparently sees no need for the additional five years for any purpose connected to the crime charged.  The trade-off is not only unworthy of judicial approval, but contrary to the court’s authority to impose.  It should not be allowed.

H/T Mike Paar