The judge, Senior U.S. District Judge Stephen P. Friot of Oklahoma City, had taken a guilty plea from Creel for making and cashing a counterfeit check in January 2017, but had to postpone subsequent sentencing hearings because Creel was either in jail or testing positive for drug use, court records show. When Creel didn’t show up for her sentencing last June, the judge looked at her pre-sentence report and observed that Creel was a user of both crack cocaine and methamphetamine.
“It appears highly likely,” Friot wrote, “that some of Ms. Creel’s children were conceived, carried and born while Ms. Creel was a habitual user of these illicit substances.” He noted that she had relinquished custody of six of her seven children in 2012, with the seventh born in 2016. And so the judge concluded that, at the sentencing, “Ms. Creel may, if (and only if) she chooses to do so, present medical evidence to the court establishing that she has been rendered incapable of procreation.”
Creel took the hint. In November, she underwent a voluntary sterilization procedure, court records show. Federal prosecutors argued that the judge should not consider that fact in determining a sentence for Creel, because she “not only has a fundamental constitutional right to procreate,” but also because her decisions to do so are “irrelevant to determining a sentence.”
Friot issued findings Thursday in which he said “Ms. Creel will get the benefit of her decision to be sterilized. She will receive a shorter sentence because she made that decision.” Responding to the prosecution’s argument against such a consideration, Friot said, “the Supreme Court has yet to recognize a constitutional right to bring crack or methamphetamine addicted babies into this world.”
Creel’s sentencing guidelines called for a 10- to 16-month sentence, and Priot imposed a 12-month term Thursday.
Creel’s bond was revoked after a failed drug test in December, and she could not be reached for comment. Her lawyer, W. Brett Behenna, said he did not know where Friot got the idea to suggest his client undergo sterilization. He said the judge called him and the prosecutor into chambers and read them the order. “I was surprised,” Behenna said. “That’s a very serious thing to bring up in the context of a criminal case, and I’ve never seen it before.”
So he took it to his client. “It is my belief,” Behenna said, “that when I discussed it with Summer, she wanted to do it, 100 percent. No coercion, no force.”
Creel’s case has echoes of America’s long history of forced sterilization, though she was not ordered to do so by the judge. The states of North Carolina, Virginia and California have apologized in recent years for state-run sterilization programs, which happened as recently as 1974 in North Carolina. “This case harkens to a long legacy of coercive reproductive policies and practices,” said Eesha Pandit, a longtime women’s rights advocate and managing partner of the Center for Advancing Innovative Policy.
“For decades,” Pandit said, “sterilization was used as a way to control populations considered ‘undesirable’ — immigrants, people of color, poor people, those with mental illnesses and disabilities. Tying Ms. Creel’s sentencing to her sterilization formalizes the coercion — the threat of a harsher sentence is manipulative and dangerous, and aligns with a legacy of eugenic practices through the U.S.”
Deborah A. Reid, senior health policy attorney for the Legal Action Center, said that “substance use disorder is a disease, not a character flaw to be used against somebody in sentencing.” Reid said that “sterilization should never be a consideration in sentencing. The courts shouldn’t be involved in a person’s reproductive decision-making.” And, Reid asked, “How can the person give informed consent to be sterilized in this situation?”
Friot’s administrative assistant said the judge would have no comment. The story was first reported by The Oklahoman.
Creel is no stranger to the criminal justice system, but her offenses were always handled in county courts in Oklahoma and typically did not require any jail time, according to court records. She has state convictions for embezzlement, grand larceny, forgery, obstructing an officer, false impersonation and writing bad checks. In October 2016, she and a friend, Amber Linn Perkins, were indicted for stealing bank statements from the mailboxes of people or businesses, then using their account numbers to create counterfeit checks, which they would then either cash or use to buy things.
Both women pleaded guilty. Perkins received a five-year sentence and was ordered to pay $159,000 in restitution. Creel pleaded guilty in January 2017, and the total loss attributed to her was more than $19,000, prosecutors said in a sentencing memorandum.
Less than a month after her plea, Creel wrote two more counterfeit checks at a Hobby Lobby in Midwest City, Okla., totaling more than $272, and was arrested again, court records show. Though Creel reportedly has claimed that her crimes emerged from a childhood of abandonment, and an adulthood of abuse and poverty, “not all of her criminal activity was motivated by making ends meet,” Assistant U.S. Attorney Jessica L. Perry wrote in her sentencing memorandum. “At Hobby Lobby, she used counterfeit checks to purchase ‘Wearable Art’ and ‘Home Decor. These purchases demonstrate that Creel was engaged in run-of-the-mill thievery, rather than an attempt to obtain basic necessities.”
Creel’s original recommended term under federal sentencing guidelines was six to 12 months, giving her a reduction for pleading guilty and taking responsibility for her crimes. But after her subsequent arrests and failed drug test for methamphetamine, prosecutors argued that she should not get the reduction for taking responsibility, her sentencing range should be 10 to 16 months, and the judge should give her a 12-month term.
Behenna’s sentencing memorandum is sealed, but prosecutors said he asked the judge to impose a 12-month term, and also informed the judge that Creel had undergone the “elective sterilization procedure.” Perry also noted that Creel “admits that she had an interest in an elective sterilization procedure even before the Court’s order.” Behenna said that information may have come from “my conversations with Jessica [Perry], that Summer had thought about it before.”
Friot, 70, was appointed to the federal bench by President George W. Bush in November 2001, after working for 19 years in Oklahoma City practicing corporate law. He also donated pro bono time to Habitat for Humanity, headed the county bar association, and as a judge received an award from the state bar association for his years of working to strengthen the legal system in Russia. He assumed senior status in 2014. He does not appear to have taken any particularly controversial stances during his 16 years on the bench — he sided with religious organizations resisting Obamacare’s mandate to cover contraception, he recently rejected a suit which attempted to assign liability for Oklahoma’s spate of earthquakes on fracking operations.
But his two-page order in Creel’s case may attract more attention.
“When I read the order, I was horrified,” said Lynn Paltrow, founder of the National Advocates for Pregnant Women and a former senior staff attorney at the ACLU’s Reproductive Freedom Project. “The last sentence makes it very clear that this was not merely a suggestion, but something the judge presumed would have an impact on her sentencing.” Paltrow noted that “there’s a big equal protection question here. We find it highly unlikely that this judge has asked any man how many children he fathered and used that in his sentencing determination.” She also said that “The irony is not lost on us that this federal district court judge sided with religious organizations resisting Obamacare’s mandate to cover contraception but believes it is appropriate to wield his enormous power to punish a woman for procreating.”
“A person’s reproductive choices should never be tied to anything having to do with crime or sentencing,” Pandit said. “Those things are distinct and should never be formally or informally part of the equation.” Pandit added that “it’s impossible for the impact, even of the suggestion that she should be sterilized, not to affect her choices when facing a sentence. It’s coercive at its core — to claim otherwise is unbelievable…We’ve learned this lesson over and over again, trying to control the reproductive lives of vulnerable communities is harmful and unethical.”
Creel is scheduled to be sentenced this afternoon. Here is Friot’s order allowing Creel to present evidence of her sterilization: