316 U.S. 535 (1942), 782, Skinner v. Oklahoma ex rel. Williamson

Docket Nº:No. 782
Citation:316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655
Party Name:Skinner v. Oklahoma ex rel. Williamson
Case Date:June 01, 1942
Court:United States Supreme Court

Page 535

316 U.S. 535 (1942)

62 S.Ct. 1110, 86 L.Ed. 1655



Oklahoma ex rel. Williamson

No. 782

United States Supreme Court

June 1, 1942

Argued May 6, 1942



1. A statute of Oklahoma provides for the sterilization, by vasectomy or salpingectomy, of "habitual criminals" -- an habitual criminal being 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 imprisonment 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.

Page 536

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.

DOUGLAS, J., lead 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.

Page 537

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. 235, 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

Page 538

of the state of scientific authorities respecting inheritability of criminal traits.1 It is argued that due process is lacking [62 S.Ct. 1112] because, under this Act, unlike the Act2 upheld in Buck v. Bell, 274 U.S. 200, 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, 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. Felen, 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. That is its failure to meet the requirements of the equal protection clause of the Fourteenth Amendment.

We do not stop to point out all of the inequalities in this Act. A few examples will suffice. In Oklahoma, grand larceny is a felony. Okla.Stats.Ann. Tit. 21, §§ 1705, 5. Larceny is grand larceny when the property taken exceeds $20 in value. Id., § 1704. Embezzlement is punishable "in the manner prescribed for feloniously stealing property of the value of that embezzled." Id., § 1462. Hence, he who embezzles property worth more than $20 is guilty of a felony. A clerk who appropriates over $20 from his employer's till (id. § 1456) and a stranger who steals the same

Page 539

amount are thus both guilty of felonies. If the latter repeats 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 intrinsically the same, and they are punishable in the same manner. Furthermore, the line between them follows close distinctions -- distinctions comparable to those highly technical 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 embezzlement 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 constitutional arguments." 274 U.S. p. 208. Under our constitutional

Page 540

system, the States, in determining the reach and scope of particular legislation, need not provide "abstract 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 [62 S.Ct. 1113] government would not work if it were not allowed a little play in its joints." Only recently, we reaffirmed the view that the equal protection clause does not prevent the legislature from recognizing "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 different, 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 embezzlement 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...

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