A List Of Things Thrown Five Minutes Ago

BEATING BASHMAN TO THE PUNCH: The U.S. Supreme Court today announced its decision not to review a recent 9th Circuit opinion which held that a prison inmate did not have the constitutional right to provide a sperm specimen to his wife in order to artificially inseminate her.

At first blush, that seems right. Prisoners are properly deprived of all sorts of constitutional rights to the extent that prison discipline and any sense of "punishment" warrants. There's no right to conjugal visits -- it's a privilege. So, what's the problem?

Here's what Judge Alex Kozinksi said in one of his typically well-written dissents (that shouldn't scare any non-lawyers out there away from reading it):

The majority hinges its opinion on the proposition that “the right to procreate is fundamentally inconsistent with incarceration,” but does not explain how. Let’s consider the possibilities. Gerber asks for permission to:

1. Ejaculate
2. into a plastic cup, which is then to be
3. mailed or given to his lawyer
4. for delivery to a laboratory
5. that will try to use its contents to artificially inseminate Mrs. Gerber.

I gather that the first step of this process is not fundamentally inconsistent with incarceration and prison guards don’t patrol cell blocks at night looking for inmates committing Onan’s transgression. Similarly, the prison has no penological interest in what prisoners do with their seed once it’s spilt; a specimen cup would seem to be no worse a receptacle, from the prison’s point of view, than any other.

Nor is there anything remotely inconsistent with incarceration in mailing a package, or handing it to your lawyer. Sure, the prison is entitled to make sure it doesn’t contain prison escape plans, but Gerber is not claiming an exemption from routine security checks. That a package contains semen, rather than a book or an ashtray or some other such object, would seem to make no rational difference from the prison’s point of view....

You get the idea. And there's a certain sense to it seen that way. But there's something to Judge Kozinski's frame-by-frame analysis that idenitifies all the trees without seeing that they're arranged in the forest, much like the way that a literal frame-by-frame analysis made the beating of Rodney King look like reasonable force.

Sure, individually, the steps seemed fine, but taken as a whole, it's a case of a prisoner asking for the prison to arrange itself in such a way to make it convenient for him to engage an act incongruous with any notion of being "punished."

Look, if this guy's Andy Dufresne, that's one thing. But I guess there's nothing wrong with punishing a prisoner, depriving him of something here which (a) is not an essential right of his, and (b) not something that the state ordinarily helps others with.

That said, Nino would've had a field day with this, something that would've given himself -- and all of us -- a lot of pleasure. There will be other opportunities for the King of Judicial Petulance, with whom one can often disagree, but never be bored in the process.