Mickle v. Henrichs
| Citation | 262 F. 687 |
| Decision Date | 25 May 1918 |
| Docket Number | A-59. |
| Parties | MICKLE v. HENRICHS, Warden of Nevada State Prison, et al. |
| Court | U.S. District Court — District of Nevada |
Woodburn & Bartlett, of Reno, Nev., for plaintiff.
Geo. B Thatcher, Atty. Gen., and E. T. Patrick, Asst. Atty. Gen., of State of Nevada, for defendants.
Mickle having pleaded guilty to the charge of rape, was sentenced to be imprisoned in the Nevada State Penitentiary for an indeterminate period of not less than 5 years. It was also ordered as a part of the judgment that an operation be performed on his person sufficient to deprive him of the power of procreation. This suit is brought against the warden and the physician of the Nevada State Prison to procure a decree of this court restraining them from carrying the order of the court into effect. All questions as to jurisdiction have been expressly waived.
The operation directed is known as vasectomy, and is authorized by section 6293 of the Revised Laws of Nevada, which reads as follows:
'Whenever any person shall be adjudged guilty of carnal abuse of a female person under the age of ten years, or of rape, or shall be adjudged to be an habitual criminal, the court may, in addition to such other punishment or confinement as may be imposed, direct an operation to be performed upon such person, for the prevention of procreation: Provided the operation so directed to be performed shall not consist of castration.'
Plaintiff claims that the statute violates section 6 of article 1 of the Constitution of Nevada, 'in that the punishment therein permitted and authorized is cruel and unusual. ' The section referred to is as follows:
'Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel or unusual punishments be inflicted.'
Under this provision, if the punishment is either cruel or unusual, it is prohibited. It was agreed by counsel that the operation could be performed in such manner as to be painless, and such was the effect of the testimony. The operation, under a local anaesthetic, occupies but a few minutes. The person operated on may at once thereafter resume his ordinary avocation and physical activities, without serious discomfort. The power to beget offspring is taken away, without impairing the desire and capacity for sexual enjoyment.
It appears from the record that Mickle is an epileptic. That fact was accorded considerable weight by the court in pronouncing judgment. Possibly in the exercise of its police power, it may be lawful for the Legislature to adopt reasonable measures, adequate and sufficient to prevent degenerates and persons afflicted with transmittable mental defects, physical disease, or criminal tendencies from begetting children; but legislation of that character must operate alike on all unfortunates of the same class, and the classification must operate reasonably with relation to the end sought to be accomplished.
The courts of New Jersey recently refused to uphold a state statute providing for the sterilization of certain feeble-minded, epileptic, and criminal defectives confined in penal and charitable institutions of that state. Much stress was laid on the fact that an epileptic confined in a penal institution is less likely to transmit his infirmity to children than an epileptic who is not so confined. It was pointed out by the court that the statute creates two classes, viz. those who are, and those who are not, unfortunate enough to be inmates of such institutions, and it applies its remedy to the former class only; that the classification has no relation whatever to the eradication of epilepsy; it is purely arbitrary and artificial, and denies to those least able to protect themselves, equal protection of the law. Smith v. Bd. of Exmrs. of Feeble-Minded, 85 N.J.Law, 46, 88 A. 963.
If the purpose of the Nevada statute be to prevent the transmission of criminal tendencies, it must be noted that it does not apply to all convicted offenders, not even to all who are habitual criminals, or to all persons adjudged guilty of rape or carnal abuse of female children, but only to such habitual criminals and persons guilty of rape as the court, in the exercise of a discretion, which is in no wise directed by the statute, may designate.
It is a notorious fact that many judges do not regard mutilation as a wise or lawful method of punishment. It is only those of the contrary opinion who will prescribe vasectomy as a part of the punishment for this offense. Again, it is doubtful whether our penal institutions contain more than a small minority of those undesirables who are inclined to lawlessness and crime. It is easy to imagine that a brute guilty of rape, or who has a tendency to commit such a crime, might regard it rather an advantage than otherwise to be sterilized. As a preventive of this crime vasectomy is without effect. Once free, the convict who has been so punished is still physically capable of committing the offense.
These considerations, however, are beside the issue. There is no attempt by defendants to support the judgment on the ground that vasectomy is calculated to promote general welfare. It is conceded that cruel or unusual punishments are prohibited, regardless of any and all theories of race culture. Whether the operation performed as punishment is violative of the constitutional injunction against cruel or unusual punishment is the question.
This provision in slightly varying form is to be found in the federal Constitution, and in all but three of the state Constitutions. In Washington (article 1, Sec. 14) the inhibition is against 'cruel punishment'; in the federal Constitution (article 8) it is against 'cruel and unusual punishment'; in Nevada it is against 'cruel or unusual punishment'; and in Massachusetts (part 1, art. 26) it is directed expressly to the judiciary:
'No magistrate or court of law shall * * * inflict cruel or unusual punishment.'
The federal courts have never attempted a precise definition of either 'cruel' or 'unusual,' as used in the Constitution. The prohibition first appeared in the English Bill of Rights of 1688, and was there directed to modes of punishment which to the modern mind seem barbarous and inhuman, such as the pillory,...
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Moore's Sterilization, In re
...is no basis for the cruel and unusual argument. The two cases cited in the Amicus curiae brief, Davis v. Berry, supra, and Mickle v. Henrichs, 262 F. 687 (D.Nev.1918), both held that sterilization of criminals as part of a sentence upon conviction was cruel and unusual punishment. That ques......
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State v. Evans
...Stephens v. State, 73 Okl.Cr. 349, 121 P.2d 326; State v. Ross, 55 Or. 450, 104 P. 596, 106 P. 1022, 42 L.R.A.,N.S., 601; Mickle v. Henrichs, D.C.Nev., 262 F. 687; Harper v. Wall, D.C.N.J., 85 F.Supp. 783; Politano v. Politano, 146 Misc. 792, 262 N.Y.S. 802; McDonald v. Commonwealth, 173 Ma......
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Skinner v. State of Oklahoma Williamson
...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 ......
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Skinner v. State ex rel. Williamson
... ... [115 P.2d 126] ... See ... Davis v. Berry, D.C., 216 F. 413; and Mickle v ... Henrichs, D.C., 262 F. 687. However, in State v ... Feilen, 70 Wash. 65, 126 P. 75, 41 L.R.A., N.S., 418, ... Ann.Cas. 1914B, 512, ... ...