JUDGE ARRANGES STERILIZATION AS PART OF CHARLESTON WOMAN'S PROBATION

CHARLESTON, W.Va. -- 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.