Oklahoma's Habitual Criminal Sterilization Act: A Constitutional Challenge, Lecture notes of Law

Download Oklahoma's Habitual Criminal Sterilization Act: A Constitutional Challenge and more Lecture notes Law in PDF only on Docsity! SKINNER v. OKLAHOMA. 527 Syllabus. and not the antecedent steps in connection with a plan of reorganization. Thus the contention seems to be that, since a gain arose from a transaction which was separate and distinct from and anterior to the exchange of property for the new securities, it must be recognized under the gen- eral rule of § 112 (a). We express no view on that con- tention. The deficiencies were not assessed on that trans- action but only upon the exchange of stock and securities in the new corporation for bonds of the old. We will not consider here for the first time the question whether a tax liability may have been incurred under § 112 (a) by reason of the earlier transaction, a question not fairly within the issues as framed by the Commissioner and hence not de- cided below.. Cf. Helvering v. Wood, 309 U. S. 344, 349. Affirmed. SKINNER v. OKLAHOMA EX REL. WILLIAMSON, ATTORNEY GENERAL. CERTIORARI TO THE SUPREME COURT OF OKLAHOMA. No. 782. Argued May 6, 1942.--Decided June 1, 1942. 1. A statute of Oklahoma provides for the sterilization, by vasectomy or salpingectomy, of "habitual criminals"-an habitual criminal be- ing defined therein as any person who, having been convicted two or more times, in Oklahoma or in any other State, of "felonies involving moral turpitude," is thereafter convicted and sentenced to impris- onment in Oklahoma for such a crime. Expressly excepted from the terms of the statute are certain offenses, including embezzlement. As applied to one who was convicted once of stealing chickens and twice of robbery, held that the statute violated the equal protection clause of the Fourteenth Amendment. P. 537. 2. The State Supreme Court having sustained the Act, as applied to the petitioner here, without reference to a severability clause, the question whether that clause would be so applied as to remove the particular constitutional objection is one which may appropriately be left for adjudication by the state court. P. 542. 189 Okla. 235, 115 P. 2d 123, reversed. 536 OCTOBER TERM, 1941. Opinion of the Court. 316 U. S. CERTIORARI, 315 U. S. 789, to review the affirmance of a judgment in a proceeding under the Oklahoma Habitual Criminal Sterilization Act, wherein it was ordered that the defendant (petitioner here) be made sterile. Messrs. W. J. Hulsey, H. I. Aston, and Guy L. Andrews submitted for petitioner. Mr. Mac Q. Williamson, Attorney General of Oklahoma, for respondent. MR. JUSTICE DOUGLAs delivered the opinion of the Court. This case touches a sensitive and important area of hu- man rights. Oklahoma deprives certain individuals of a right which is basic to the perpetuation of a race-the right to have offspring. Oklahoma has decreed the en- forcement of its law against petitioner, overruling his claim that it violated the Fourteenth Amendment. Because that decision raised grave and substantial constitutional ques- tions, we granted the petition for certiorari. The statute involved is Oklahoma's Habitual Criminal Sterilization Act. Okla. Stat. Ann. Tit. 57, §§ 171, et seq.; L. 1935, pp. 94 et seq. That Act defines an "habitual crim- inal" as a person who, having been convicted two or more times for crimes "amounting to felonies involving moral turpitude," either in an Oklahoma court or in a court of any other State, is thereafter convicted of such a felony in Oklahoma and is sentenced to a term of imprisonment in an Oklahoma penal institution. § 173. Machinery is provided for the institution by the Attorney General of a proceeding against such a person in the Oklahoma courts for a judgment that such person shall be rendered sexually sterile. §§ 176, 177. Notice, an opportunity to be heard, and the right to a jury trial are provided. § § 177-181. The issues triable in such a proceeding are narrow and con- SKINNER v. OKLAHOMA. 535 Opinion of the Court. amount are thus both guilty of felonies. If the latter re- peats his act and is convicted three times, he may be sterilized. But the clerk is not subject to the pains and penalties of the Act no matter how large his embezzlements nor how frequent his convictions. A person who enters a chicken coop and steals chickens commits a felony (id. § 1719); and he may be sterilized if he is thrice convicted. If, however, he is a bailee of the property and fraudulently appropriates it, he is an embezzler. Id. § 1455. Hence, no matter how habitual his proclivities for embezzlement are and no matter how often his conviction, he may not be sterilized. Thus, the nature of the two crimes is intrinsi- cally the same and they are punishable in the same man- ner. Furthermore, the line between them follows close dis- tinctions-distinctions comparable to those highly techni- cal ones which shaped the common law as to "trespass" or "taking." Bishop, Criminal Law (9th ed.) Vol. 2, §§ 760, 799, et seq. There may be larceny by fraud rather than em- bezzlement even where the owner of the personal property delivers it to the defendant, if the latter has at that time "a fraudulent intention to make use of the possession as a means of converting such property to his own use, and does so convert it." Bivens v. State, 6 Okla. Cr. 521, 529, 120 P. 1033, 1036. If the fraudulent intent occurs later and the defendant converts the property, he is guilty of embezzlement. Bivens v. State, supra; Flohr v. Territory, 14 Okla. 477,78 P. 565. Whether a particular act is larceny by fraud or embezzlement thus turns not on the intrinsic quality of the act but on when the felonious intent arose- a question for the jury under appropriate instructions. Bivens v. State, supra; Riley v. State, 64 Okla. Cr. 183, 78 P. 2d 712. It was stated in Buck v. Bell, supra, that the claim that state legislation violates the equal protection clause of the Fourteenth Amendment is "the usual last resort of con- stitutional arguments." 274 U. S. p. 208. Under our con- OCTOBER TERM, 1941. Opinion of the Court. 316 U. S.: stitutional system the States in determining the reach and scope of particular legislation need not provide "ab- stract symmetry." Patsone v. Pennsylvania, 232 U. S. 138, 144. They may mark and set apart the classes and types of problems according to the needs and as dictated or suggested by experience. See Bryant v.-Zimmerman, 278 U. S. 63, and cases cited. It was in that connection that Mr. Justice Holmes, speaking for the Court in Bain Peanut Co. v. Pinson, 282 U. S. 499, 501, stated, "We must remember that the machinery of government would not work if it were not allowed a little play in its joints." Only recently we reaffirmed the view that the equal pro- tection clause does not prevefit the legislature from recog- nizing "degrees of evil" (Truax v. Raich, 239 U. S. 33, 43) by our ruling in Tigner v. Texas, 310 U. S. 141, 147, that "the Constitution does not require things which are dif- ferent in fact or opinion to be treated in law as though they were the same." And see Nashville, C. & St. L. Ry. v. Browning, 310 U. S. 362. Thus, if we had here only a question as to a State's classification of crimes, such as em- bezzlement or larceny, no substantial federal question would be raised. See Moore v. Missouri, 159 U. S. 673; Hawker v. New York, 170 U. S. 189; Finley v. California, 222 U. S. 28; Patsone v. Pennsylvania, supra. For a State is not constrained in the exercise of its police power to ignore experience which marks a class of offenders or a family of offenses for special treatment. Nor is it pre- vented by the equal protection clause from confining "its restrictions to those classes of cases where the- need is deemed to be clearest." Miller v. Wilson, 236 U. S. 373, 384. And see McLean v. Arkansas, 211 U. S. 539. As stated in Buck v. Bell, supra, p. 208, ". . . the law does all that is needed when it does all that it can, indicates a policy, applies it to all within the lines, and seeks to bring within the lines all similarly situated so far and so fast as its means allow." 540 SKINNER v. OKLAHOMA. 535 Opinion of the Court. But the instant legislation runs afoul of the equal pro- tection clause, though we give Oklahoma that large def- erence which the rule of the foregoing cases requires. 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, far- reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the domi- nant group to wither and disappear. There is no redemp- tion for the individual whom the law touches. Any experi- ment 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 empha- sis 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. 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 invidi- ous a discrimination as if it had selected a particular race or nationality for oppressive treatment. Yick Wo v. Hop- kins, supra; Gaines v. Canada, 305 U. S. 337. 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 at- tempt 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 be- tween larceny by fraud and embezzlement is determined, as we have noted, "with reference to the time when the. 544 OCTOBER TERM, 1941. STbNE, C. J., concurring. 316 U. S. Keokee Coke Co. v. Taylor, 234 U. S. 224, 227; Patsone v. Pennsylvania, 232 U. S. 138, 144. Moreover, if we must presume that the legislature knows--what science has been unable to ascertain-that the criminal tendencies of any class of habitual offenders are transmissible regardless of the varying mental char- acteristics of its individuals, I should suppose that we must likewise presume that the legislature, in its wisdom, knows that the criminal tendencies of some classes of offenders are more likely to be transmitted than those of others. And so I think the real :question we have to consider is not one of equal protection, but whether the wholesale condemna- tion of a class to such an invasion of personal liberty, with- out opportunity to any individual to show that his is not the type of case which would justify resort to it, satisfies the demands of due process. There are limits to the extent to which the presumption of constitutionality can be pressed, especially where the liberty of the person is concerned (see United States v. Carolene Products Co., 304 U. S. 144, 152, n. 4) and where the presumption is resorted to only to dispense with a pro- cedure which the ordinary dictates of prudence would seem to demand,.for the protection of the individual from arbi- trary action. Although petitioner here was given a hear- ing to ascertain whether sterilization would be detrimental to hiq health, he was given none to discover whether his criminal tendencies are of an inheritable type. Undoubt- edly a state may, after appropriate inquiry, constitution- ally interfere with the personal liberty of the individual to prevent the transmission by inheritance of his socially injurious tendencies. Buck v. Bell, 274 U. S. 200. But until now we have not been called upon to say that it may do so without giving him a hearing -and opportunity to challenge the existence as to him of the only facts which could justify so drastic a measure. SKINNER v. OKLAHOMA. 535 STONE, C. J., concurring. Science has found and the law has recognized that there are certain types of mental deficiency associated with de- linquency which are inheritable. But the State does not contend-nor can there be any pretense-that either com- mon knowledge or experience, or scientific investigation,1 has given assurance that the criminal tendencies of any class of habitual offenders are universally or even generally inheritable. In such circumstances, inquiry whether such is the fact in the case of any particular individual cannot rightly be dispensed with. Whether the procedure by which a statute carries its mandate into execution satisfies due process is a matter of judicial cognizance. A law which condemns, without hearing, all the individuals of a class to so harsh a measure as the present because some or even many merit condemnation, is lacking in the first principles of due process. Morrison v. California, 291 U. S. 82, 90, and cases cited; Taylor v. Georgia, 315 U. S. 25. And so, while the state may protect itself from the demonstrably inheritable tendencies of the individual which are injur- ious to society, the most elementary notions of due process would seem to require it to take appropriate steps to safe- guard the liberty of the individual by affording him, be- fore he is condemned to an irreparable injury in his person, some opportunity to show that he is without such inherit- able tendencies. The state is called on to sacrifice no per- missible end when it is required to reach its objective by a reasonable and just procedure adequate to safeguard rights of the individual which concededly the Constitution pro- tects. 'See Eugenical Sterilization, A Report of the Committee of the Amer- ican Neurological Association (1936), pp. 150-52; Myerson, Summary of the Report, 1 American Journal of Medical Jurisprudence 253; Pope- noe, Sterilization and Criminality, 53 American Bar Assn. Reports 575; Jennings, Eugenics, 5 Encyclopedia of the Social Sciences 617, 620-21; Montagu, The Biologist Looks at Crime, 217 Annals of American Acad- emy of Political and Social Science 46. [Over] 546 OCTOBER TERM, 1941. JACKSON, J., concurring. 316 U. S. MR. JUSTICE JACKSON concurring: I join the CHIEF JUSTICE in holding that the hearings provided are too limited in the context of the present Act to afford due process of law. I also agree with the opinion of MR. JUSTICE DOUGLAS that the scheme of classification set forth in the Act denies equal protection of the law. I disagree with the opinion of each in so far as it rejects or minimizes the grounds taken by the other. Perhaps to employ a broad and loose scheme of classifi- cation would be permissible if accompanied by the indi- vidual hearings indicated by the CHIEF JUSTICE. On the other hand, narrow classification with reference to the end to be accomplished by the Act might justify limiting in- dividual hearings to the issue whether the individual be- longed to a class so defined. Since this Act does not present these questions, I reserve judgment on them. I also think the present plan to sterilize the individual in pursuit of a eugenic plan to eliminate from the race characteristics that are only vaguely identified and which in our present state of knowledge are uncertain as to trans- missibility presents other constitutional questions of grav- ity. This Court has sustained such an experiment with respect to an imbecile, a person with definite and observ- able characteristics, where the condition had persisted through three generations and afforded grounds for the belief that it was transmissible and would continue to manifest itself in generations to come. Buck v. Bell, 274 U. S. 200. There are limits to the extent to which a legislatively represented majority may conduct biological experiments at the expense of the dignity and personality and natural powers of a minority-even those who have been guilty of what the majority define as crimes. But this Act falls down before reaching this problem, which I mention only to