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SUPREME COURT OF THE UNITED STATES
316 U.S. 535; 62 S. Ct. 1110; 1942 U.S. LEXIS 493;
86 L. Ed. 1655
May 6, 1942, Argued
June 1, 1942, Decided
OPINION: MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This case touches a sensitive and important area of human 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 enforcement of its law against petitioner, overruling
his claim that it violated the Fourteenth Amendment. Because that
decision raised grave and substantial constitutional questions,
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 criminal" 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 confined.
If the court or jury finds that the defendant is an "habitual
criminal" and that he "may be rendered sexually sterile
without detriment to his or her general health," then the
court "shall render judgment to the effect that said defendant
be rendered sexually sterile" (§ 182) by the operation
of vasectomy in case of a male, and of salpingectomy in case of
a female. § 174. Only one other provision of the Act is material
here, and that is § 195, which provides that "offenses
arising out of the violation of the prohibitory laws, revenue acts,
embezzlement, or political offenses, shall not come or be considered
within the terms of this Act."
Petitioner was convicted in 1926 of the crime of stealing chickens,
and was sentenced to the Oklahoma State Reformatory. In 1929 he
was convicted of the crime of robbery with firearms, and was sentenced
to the reformatory. In 1934 he was convicted again of robbery with
firearms, and was sentenced to the penitentiary. He was confined
there in 1935 when the Act was passed. In 1936 the Attorney General
instituted proceedings against him. Petitioner in his answer challenged
the Act as unconstitutional by reason of the Fourteenth Amendment. A jury trial
was had. The court instructed the jury that the crimes of which petitioner
had been convicted were felonies involving moral turpitude, and that the only
question for the jury was whether the operation of vasectomy could be performed
on petitioner without detriment to his general health. The jury found that
it could be. A judgment directing that the operation of vasectomy be performed
on petitioner was affirmed by the Supreme Court of Oklahoma by a five to four
decision. 189 Okla. nnnnnnn235, 115 P. 2d 123.
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 of the state of scientific authorities respecting inheritability
of criminal traits. …
… 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; Mickle v. Henrichs,
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. …
… But the instant legislation runs afoul of the equal protection
clause, though we give Oklahoma that large deference 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 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. 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
invidious a discrimination as if it had selected a particular race
or nationality for oppressive treatment. Yick Wo v. Hopkins, 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 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 fraudulent intent to convert the
property to the taker's own use" arises. Riley v. State, supra,
64 Okla. Cr. at p. 189, 78 P. 2d p. 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. See Smith v. Wayne Probate Judge,
231 Mich. 409, 420-421, 204 N. W. 40. In Buck v. Bell,
supra, the Virginia statute was upheld though it applied only to
feeble-minded persons in institutions of the State. But it was
pointed out that "so far as the operations enable those who
otherwise must be kept confined to be returned to the world, and
thus open the asylum to others, the equality aimed at will be more
nearly reached." 274 U.S. p. 208. [***13] Here
there is no such saving feature. Embezzlers are forever free. Those
who steal or take in other ways are not. If such a classification
were permitted, the technical common law concept of a "trespass" (Bishop,
Criminal Law, 9th ed., vol. 1, §§ 566, 567) based on
distinctions which are "very largely dependent upon history
for explanation" (Holmes, The Common Law, p. 73) could readily
become a rule of human genetics. …
Reversed.
CONCUR: MR. CHIEF JUSTICE STONE, concurring:
… 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 procedure which the ordinary dictates
of prudence would seem to demand for the protection of the individual
from arbitrary action. Although petitioner here was given a hearing
to ascertain whether sterilization would be detrimental to his
health, he was given none to discover whether his criminal tendencies
are of an inheritable type. Undoubtedly a state may, after appropriate
inquiry, constitutionally 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.
Science has found and the law has
recognized that there are certain types of mental deficiency
associated with delinquency which are inheritable. But the State
does not contend -- nor can there be any pretense -- that either
common knowledge or experience, or scientific investigation, n1
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 injurious to society, the most elementary
notions of due process would seem to require it to take appropriate
steps to safeguard the liberty of the individual by affording him,
before he is condemned to an irreparable injury in his person,
some opportunity to show that he is without such inheritable tendencies.
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