Res Ipsa Loquitur

Mr. Skinner was a habitual thief. He had been convicted in 1926 for stealing chickens; in 1929 & 1934 for armed robbery. In 1935, Oklahoma passed the Habitual Criminal Sterilization Act, which allowed for involuntary sterilization of persons upon their third conviction for felonies involving "moral turpitude"...a "3 strikes and you're cut" law, you might say. And so in 1936, the State instituted proceedings to have Mr. Skinner sterilized...Mr. Skinner not surprisingly objected, primarily on 14th Amd. grounds. (Curiously, no one seems to have raised the issue of the ex post facto application of the law.) However, the jury found that he should indeed be sterilized, and their decision was affirmed by the Oklahoma Supreme Court. Mr. Skinner's appeal then made its way through the Federal system to the U.S. Supreme Court, who rules that the state of Oklahoma can't do this. But the majority opinion, written by Justice Douglas, is based on some rather interesting grounds.

The Supremes don't hold that states can never do force a person to undergo involuntary sterilization. As a matter of fact, they dodge this issue quite adroitly.

Several objections to the constitutionality of the Act have been pressed upon us. It is urged that the Act cannot be sustained as an exercise of the police power in view [316 U.S. 535, 538] of the state of scientific authorities respecting inheritability of criminal traits. 1 It is argued that due process is lacking because under this Act, unlike the act2 upheld in Buck v. Bell, 274 U.S. 200 , 47 S.Ct. 584, the defendant is given no opportunity to be heard on the issue as to whether he is the probable potential parent of socially undesirable offspring. See Davis v. Berry, D.C., 216 F. 413; Williams v. Smith, 190 Ind. 526, 131 N.E. 2. It is also suggested that the Act is penal in character and that the sterilization provided for is cruel and unusual punishment and violative of the Fourteenth Amendment. See Davis v. Berry, supra. Cf. State v. Feilen, 70 Wash. 65, 126 P. 75, 41 L.R.A.,N.S., 418, Ann.Cas.1914B, 512; Mickle v. Henrichs, D.C., 262 F. 687. We pass those points without intimating an opinion on them, for there is a feature of the Act which clearly condemns it. That is its failure to meet the requirements of the equal protection clause of the Fourteenth Amendment.

The Oklahoma Act contains an exception for 'offenses arising out of the violation of the prohibitory laws, revenue acts, embezzlement, or political offenses'. Such offenses are arguably, as the Supremes point out, felonies that involve moral turpitude, yet are treated differently under the Act without justification.

Sterilization of those who have thrice committed grand larceny with immunity for those who are embezzlers is a clear, pointed, unmistakable discrimination. Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks. Oklahoma's line between larceny by fraud and embezzlement is determined, as we have noted, 'with reference to the time when the [316 U.S. 535, 542] fraudulent intent to convert the property to the taker's own use' arises. Riley v. State, supra, 64 Okl.Cr. page 189, 78 P.2d page 715. We have not the slightest basis for inferring that that line has any significance in eugenics nor that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses. In terms of fines and imprisonment the crimes of larceny and embezzlement rate the same under the Oklahoma code. Only when it comes to sterilization are the pains and penalties of the law different. The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn.

Now, the holding of the case pretty much falls into the interesting, but not very category....basic application of the Equal Protection Clause of the 14th Amd. It's their basis for examining the case with strict scrutiny that's really interesting.

We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, farreaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty. We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly or otherwise invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws. The guaranty of 'equal protection of the laws is a pledge of the protection of equal laws.' Yick Wo v. Hopkins, 118 U.S. 356, 369 , 6 S.Ct. 1064, 1070. When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as an invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.

Notice these two sentences: "We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly or otherwise invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws." They don't say that states can't do this. They only say that under the Equal Protection Clause, states better have a damn good reason to do this.

Nice dodge of the real issue. Now I'm aware that since Skinner the theories of the inheritability of criminal behavior have been discredited. I know of no legitimate basis for involuntary sterilization...though I sometimes wish it were that simple. It's clear to me that the problem with the families I see who have a disproportionate number of criminals is not due to genetics...it's a learned behavior, which can be much harder to correct.

Still, I found the Court's reasoning interesting....and yet another example of one of those well-known cases that everyone cites that doesn't really say what everyone thinks it does.