A Charleston woman agreed in Kanawha Circuit Court Monday to a judge’s suggestion that she have her fallopian tubes tied as part of her probation.
Jessica Michelle Butterworth, 21, pleaded guilty to possession with intent to distribute marijuana on March 23. At her sentencing hearing, Judge L.D. Egnor suspended a one- to five-year prison sentence in favor of five years of probation.
Egnor, a retired Cabell County Circuit judge who has been hearing cases while Judge Paul Zakaib Jr. recovers from an illness, said he had made arrangements for Butterworth to have the sterilizing procedure free of charge.
“[Butterworth] recognizes the need to make changes in her life in order to provide for herself and her family,” Egnor’s order reads. “After inquiring of the defendant, the Court further recognizes [her]desire to have a tubal ligation and has located a provider who will do it free of costs, with arrangements to be made in the next 30 days.”
Defense attorney Michael Payne said his client, who has three children and is not married, was enthusiastic about the idea when the judge brought it up.
“As the procedure was something that my client had expressed interest in in both the past and present, as well as the fact that Judge Egnor was not ordering her to get the procedure done as a condition of probation, I did not feel that my client’s rights were being violated,” Payne said.
During the hearing, Kanawha County assistant prosecutor Jennifer Meadows said that as part of the plea deal, the state recommended probation for Butterworth, with no additional terms or conditions.
“The state is not part of that recommendation [involving the medical procedure],” she said.
Steven Lubet, a law professor at Northwestern University who specializes in legal ethics, said the judge overstepped his bounds.
“Discussing sterilization with a defendant is coercive,” he said. “It interferes with a fundamental right, the right to procreate, the right to bodily integrity.”
Although the judge was likely acting out of sincere concern for the well-being of Butterworth and her children, he was “absolutely wrong” to include tubal ligation, even as a suggestion, he said.”There’s no way that the defendant won’t be worried about the consequences if she changes her mind. There’s no way that her response to the judge is an independent decision,” he said. “There are many, many cases that say that judges cannot coerce, suggest, or enforce sterilization on criminal defendants. It’s simply beyond the reach of the criminal law.”
Laurie Levenson, a former federal prosecutor who heads the Center for Ethical Advocacy and teaches law at Loyola Law School in Los Angeles, said Egnor’s suggestion was “inherently coercive.”
“It’s very hard for her to say no to somebody in black robes who holds the key to her prison cell,” she said. “This would be one thing if this was her pastor or her counselor, but this is someone who has the power to send her to prison.”
Levenson said she did not oppose creative sentencing, and noted that some would applaud the judge’s efforts to keep from adding to the nation’s already overcrowded prisons.
“It is true that our traditional punishments haven’t worked very well, but I would tread lightly before going out on a limb and involving the court in reproductive rights,” she said. “I think this judge wants to do the right thing, but some people would say he’s acting much more as the social worker than as the judge.”
Butterworth is a young woman, and the procedure would likely permanently affect her ability to have additional children, Levenson noted.
“Let’s hope it all works out great for this individual, but there are unknown consequences for having the judge involve himself in the realm of reproductive rights,” she said.
Egnor’s decision could set an unusual precedent, she said.
“What about the other women who want their tubes tied but can’t afford it? Now the way to reproductive care is to go out and commit crime,” she said.
Egnor caused a stir in 1994 when he twice sentenced parents of habitually truant students to 100 days in jail. The parents were released early after Egnor learned that state law required probation and fines for first-offender parents whose children miss school.
– Article from The Charleston Gazette on June 1, 2009