The Oklahoma Bar Journal May 2023

arbitrarily carved out for exemp tion offenses that seemed to be selected on the basis of class. The exemptions included “offenses aris ing out of violations of prohibitory laws, revenue acts, embezzlement, or political offenses” – quite neatly carving out a slew of white-collar crimes generally committed by those with more wealth, influence and power. 23 Briggs, in a tour de force, made efforts to highlight other discrepancies at the initial civil hearing for Skinner’s selection for sterilization. When Dr. Ritzhaupt took the witness stand, Briggs was able to use his cross-examination as an opportunity for exposition: He entered into the record that despite the doctor’s insistence that criminal tendencies were inherited, of the 2,034 inmates at McAlester, only 12 had parents or grandparents who were offenders; for those 1,753 inmates who had served two or more terms in the corrections system, there was “not a single instance” when a parent had ever been convicted. 24 When Dr. D.W. Griffin (whose name later would adorn the Griffin Memorial Hospital in Norman) took the stand in favor of the law, Briggs was able to lure him to admit that criminal ity and Skinner’s own deviancy was “probably” more the result of poor socialization than a genetic inheritance. 25 Seeing the broader picture and the exploitability of a sterilization regime for even more malevolent purposes, Briggs’ clos ing argument in the hearing was a warning that if the Legislature has civil power to permanently and forcibly take procreative power from a convicted felon, the same such power could be used in a broader manner less palatable to the public. 26 He also warned that

representation, first by McAlester attorney Claude Briggs, to make a stand for the first inmate selected for sterilization surgery under the new law. That inmate, Hubert Moore, having escaped from the prison shortly after his selection, was quickly replaced by Skinner. Claud Briggs had been a black smith and a farmer before embark ing on a career in the law. Having never attended a law school, he came to the profession in an old-fashioned manner, taking the bar exam after a course of home study and then brilliantly receiv ing the second-highest score in the state as a result. 16 The difficulties in representing Skinner may have seemed insur mountable at the time. The U.S. Supreme Court had already ruled on the constitutional legality of eugenic sterilization laws in the case of Buck v. Bell as a legitimate police power of the states, and the state of Oklahoma had already passed multiple eugenic steriliza tion laws prior to the 1935 version that now included the “habitual” criminal as a subject. 17 Prominent physicians and even criminolo gists lent some credibility to the prospect of sterilization for repeat offenders. 18 The law itself had been proposed and authored by Dr. Louis Henry Ritzhaupt in the state Legislature, and the famed criminologist Edwin Sutherland lent academic credence to the idea of sterilization of repeat offenders. 19 Adding to the challenge, the Oklahoma Supreme Court had neutralized some of the most logi cal challenges to sterilization laws already by ruling that sterilization was not a punishment but merely a civil law aimed at community health and welfare. 20 This made an Eighth Amendment argument

factually irrelevant. However, Claud Briggs was not merely a simple country lawyer; he was, by this point in his career, a mem ber of the Oklahoma Senate and well-versed in the other possible rationales that could be used to challenge the statute. In an era when individual rights were not nearly as sacrosanct in constitutional law as perhaps they are today, deference was often given by courts to legislatures when individual welfare was pitted against the purported community interest. 21 The presumption of constitutionality was often mad deningly difficult for opponents of new laws to overcome, but courts were still nonetheless skeptical of arbitrariness in the design of such laws. 22 Briggs focused on the fact that the sterilization law was Claude Briggs, a McAlester attorney and Oklahoma senator, represented the defendant in Skinner v. Oklahoma . Courtesy Oklahoma Historical Society.

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.

14 | MAY 2023

THE OKLAHOMA BAR JOURNAL