The Oklahoma Bar Journal May 2023

O klahoma L egal H istory

I N 1926, JACK T. SKINNER STOLE 23 CHICKENS. 1 This was the first in a line of felo nies for which Skinner pleaded guilty and that eventually led to his alleged categoriza tion as a “habitual criminal” under the Oklahoma Habitual Criminal Sterilization Act of 1935. 2 This law, argued by its author to be a nonpunitive civil statute, permitted forcible sterilization for individuals with three prior convictions of felonies involving moral turpi tude. 3 Sterilization, in the words of Skinner’s attorney, Claud Briggs, was “the largest pen alty that a red-blooded, virile young man could be required to pay.” 4 Skinner v. Oklahoma : How Two McAlester Lawyers Derailed Criminal Sterilization in America and the U.S. Supreme Court Invented ‘Strict Scrutiny’ as a Result By Michael J. Davis

After serving time for stealing chickens, Skinner was released from the Oklahoma State Reformatory in Granite and thereafter committed two separate armed robberies in 1929 and 1934. 5 While confined in the Oklahoma State Penitentiary in McAlester, the law permitting criminal sterilization went into effect under the signature of Gov. Ernest Whitworth Marland in 1935, taking such minor notice as to be buried on the 12th page of The Daily Oklahoman . 6 A native of Shawnee, Skinner had been raised by a violent stepfather

whom he ran away from home to escape. He was later the victim of a terrible accident that resulted in the loss of his left foot. 7 Court records show that his explanation for repetitive criminality related to the desperation of unemployment. 8 After his second armed robbery, in which he robbed a gas station clerk of $17 and was immediately arrested, his wife of that same year began divorce proceedings. 9 All of Skinner’s crimes were admitted by the defendant himself, and they all took place prior to the passage of the criminal sterilization statute. 10

The state was a latecomer to criminal sterilization laws during this era, with most states preced ing Oklahoma in passing some kind of criminal castration or ster ilization statute, but this did not make the matter anodyne. When it became clear that the peniten tiary rolls were being screened for possible sterilization candidates, the result at the Oklahoma State Penitentiary in McAlester was chaos, riot, escape and shootouts. 11 Prisoners commandeered a vehicle by force, took guards as hostages and negotiated the opening of

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

12 | MAY 2023

THE OKLAHOMA BAR JOURNAL