Editor's Note: This is part 1 of a 2 part series on forced sterilization of incarcerated humans. It is also part of our series in solidarity with the ongoing National Prison Strike.
Our retributive carceral system in the U.S. is steeped in injustice and rooted in dehumanization, so I suppose I shouldn’t have been shocked to learn of a century-long history of forced sterilization within the United States justice system. Alas, I was gutted as I dove into that grotesque history of reproductive violence to research for this piece. Because, though the legal statutes have developed over time, we still remain in an ethically unsustainable legal situation in which reproductive coercion to sterilize inmates is, to this day, still considered licit in nearly every state in the nation. This is not to mention the blatant and systemic ableism that was and is pervasive in the effort to forcibly sterilize those deemed “unfit”. The intersection of the rights of the incarcerated, racial minorities, and the physically and mentally disabled is crucial for understanding the gravity of this injustice and for creating a holistic effort to prevent and end all forms of reproductive violence.
Though there were hundreds of instances in the U.S. of forced sterilization in prisons prior to the 20th century, the history of incarceration and forced sterilization in the United States really began in earnest in 1907, when the state of Indiana passed a law allowing for the forced sterilization of “confirmed criminals”, “idiots,” and “rapists.”(1) According to the research of Lutz Kaelber (highlighted by the Marshall Project), hundreds of men held in Indiana prisons were given vasectomies due to this law.(2) California soon followed in 1909, passing a eugenic law under which any person committed to a state institution (for mental health or criminal reasons) could legally be sterilized without their consent. Many young people deemed “deviants” for their criminal behavior were involuntarily committed to mental health institutions(3), and their sterilizations were justified as seemingly “necessary to protect the state from increased crime, poverty and racial degeneracy.”(4) In March of 1924, Virginia codified their own Sterilization Act, authorizing state institutions’ superintendents to forcibly render any of their inmates infertile, since the “propagation of their kind” would be a “menace to society”, since they believed that “heredity plays an important part in the transmission of insanity, idiocy, imbecility, epilepsy, and crime.”(5) This ableist law would be the center of a Supreme Court case just three years later.
However, instead of the Supreme Court being an agent of justice and affirming the rights of all members of the human family to live free from such legalized surgical violence, in Buck v. Bell, the court ruled in favor of the Virginia law on the basis of a pre-emptive sort of elimination of criminals, implying with shameless ableism that all (children of) mentally disabled individuals would inherently be criminals. Justice Oliver Wendell Holmes wrote in the decision: “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.”(6)
Following Buck v. Bell, Oklahoma made it far more explicit that they would be targeting criminals with forced sterilization when they passed their Habitual Criminal Sterilization Act of 1935.(7) This law allowed the compulsory sterilization of any person convicted of two or more felonies, but specifically protected white-collar criminals from this reproductive injustice. In 1936, there was a riot at the McAlester State Prison protesting the forced sterilization and other dehumanization. The riot was instigated by several prisoners, including a one Jack Skinner, who was considered a “habitual criminal”.(8) Six years later, Skinner brought his case against forced vasectomy all the way to the Supreme Court in Skinner v. Oklahoma ex rel. Williamson.(9) Because of the exclusion in the law for white-collar criminals, the court ruled that forced sterilization was unjust as punishment - however, unfortunately, they would not speak to whether sterilization qualified as “cruel and unusual punishment” for criminals per se.
Fascinatingly, sterilizations in Oklahoma dropped off nearly completely after the Skinner case, despite the fact that forced sterilizations were appallingly still legal for those who were deemed “feeble-minded” - this demonstrated that the majority of the sterilizations happening in this state (and likely in others, though other states continued used the discriminatory “feeble-minded” loophole) were indeed used as retributive punishment for criminals.(10) Even still, California is documented as having used compulsory castration as a condition of parole for convicted sex offenders as late as 1962.(11) Though the Skinner case was a marked improvement for prisoner’s rights, reproductive coercion to sterilize was still very much a possibility within the post-Skinner legal framework, which I’ll discuss further in a follow-up blog post.
(1) Stern, Alexandra M. "We Cannot Make a Silk Purse Out of a Sow’s Ear: Eugenics in the Hoosier Heartland.” Indiana Magazine of History, 2007. 103: 3-38.
(2) Kaelber, Lutz. “Eugenics/Eugenic Sterilizations in Indiana.” Eugenics: Compulsory Sterilization in 50 American States, University of Vermont, 2009. Accessed August 14, 2018. https://www.uvm.edu/~lkaelber/eugenics/IN/IN.html
(3) Stern, Alexandra M. “When California Sterilized 20,000 of its Citizens.” Zocalo Public Square, Arizona State University, January 6, 2016. Accessed August 9, 2018. http://www.zocalopublicsquare.org/2016/01/06/when-california-sterilized-20000-of-its-citizens/chronicles/who-we-were/
(4) Lira, Natalie and Nicole L. Novak. “California Once Targeted Latinas for Forced Sterilization.” Smithsonian Magazine online, March 22, 2018. Accessed August 9, 2018. https://www.smithsonianmag.com/history/california-targeted-latinas-forced-sterilization-180968567/
(5) Virginia Commonwealth Senate Bill 281, Virginia Sterilization Act of 3/20/1924. Accessed via the Cold Spring Harbor Laboratory website, in the Eugenics Archive, on August 10, 2018. https://www.dnalc.org/view/11213-Virginia-Sterilization-Act-of-3-20-1924.html
(6) Buck v. Bell, 274 U.S. 200 (1927). This ruling may be read in full on the Cornell Legal Information Institute website: https://www.law.cornell.edu/supremecourt/text/274/200.
(7) Okla.Stat.Ann. Tit. 57, §§ 171. (Ruled unconstitutional, therefore is no longer listed in Oklahoma contemporary statutes.)
(8) Nourse, Victoria. 2008. In Reckless Hands: Skinner v. Oklahoma and the Near-Triumph of American Eugenics. New York: Norton.
(9) Skinner v. State of Oklahoma, ex. rel. Williamson, Atty. Gen. of Oklahoma, 316 U.S. 535 (1942). This ruling may be read in full on Justia: https://supreme.justia.com/cases/federal/us/316/535/.
(10) Nourse, 2008.
(11) Abate, Tom. “State's little-known history of shameful science / California's role in Nazis' goal of 'purification'.” SFGate.com, March 10, 2003. Accessed August 8, 2018. https://www.sfgate.com/business/article/State-s-little-known-history-of-shameful-science-2663925.php