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TUESDAY, NOVEMBER 19, 2002

An Indian inmate seeking to father a child while behind bars was turned away by the Supreme Court on Monday.

William Gerber, 43, is a member of the Pechanga Band of Luiseno Mission Indians. He is serving a "three strikes" 100-year-plus sentence in a California state corrections facility for discharging a firearm, making terrorist threats and using narcotics.

Since California law prohibits conjugal visits for inmates serving life terms, Gerber sought alternative ways to reproduce. He asked for permission to artificially inseminate his wife, a request that was denied by the Mule Creek State Prison.

Bringing suit against the prison warden, Gerber alleged his civil rights were being violated. He cited a constitutional right to procreate while in prison, a claim initially denied by a federal judge.

In a 2-1 decision, a three-judge panel of the 9th Circuit Court of Appeals reversed. "In sum, we conclude that the fundamental right to procreate survives incarceration," wrote Circuit Judge Myron H. Bright in September 2001.

In a dissent, Circuit Judge Barry G. Silverman said the majority ruling was "ill-conceived."

The state of California subsequently asked the full panel of the 9th Circuit to rehear the case. In May of this year, Silverman authored a narrow 6-5 decision that reversed the earlier holding.

"Prisoners cannot claim the protection of those rights fundamentally inconsistent with their status as prisoners," Silverman wrote for the majority.

But two dissenting judges offered their own take on the dispute. In an opinion joined by four others, Circuit Judge A. Wallace Tashima said there was no basis to reject Gerber's request.

"Because the majority points to no facts in the record to support the conclusion that procreation is fundamentally inconsistent with incarceration, its position essentially rests on the 'impression' that prisoners simply should not have the right to procreate by artificial insemination," Tashima wrote.

Another dissent by Circuit Judge Alex Kozinski was joined by two others. "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," he wrote.

"Gerber asks only to engage in activities that prisoners are already free to engage in (see steps 1-3 above)," he later added.

The Pechanga tribe filed a friend of the court brief in the case that urged the Supreme Court to take the case. The state of California did not file a reply brief.

Relevant Documents:
Gerber v. Hickman (May 23, 2002) | Order to Rehear Case (December 4, 2001) | Gerber v. Hickman (September 5, 2001)

Relevant Documents:
Docket Sheet: No. 02-419