The Oklahoma Bar Journal May 2023

a coal mining superintendent in the small Pittsburg County town of Haileyville, he had never attended a law school but made his way to the halls of justice the old-fashioned way. 32 In his petition for a writ of certiorari, Andrews sunk his teeth into the equal protection argument wholesale and with a sense for rhetoric. In his words, “The terms of the Act exclude from its penal ties the Capones, the Ponzis, and the Benedict Arnolds.” 33 Andrews went further, arguing the law created an “aristocracy of crime” that relieved a favored class for their crimes but stripped the “less fortunate” of their procreation abilities for similar bad acts. 34 It is perhaps a disappointing note for history that because of the mea ger funds for Skinner’s advocacy, Andrews had to agree for the case to be argued on the briefs instead of by personal appearance. 35 Despite this, the court determined to require the Oklahoma attorney general, Mac Q. Williamson, to appear to defend the law. In an argument before the court, Justice Frankfurter forcefully challenged Williamson to explain why “stealing chickens was included and embezzlement excluded.” 36 It took the U.S. Supreme Court just a few weeks to render a unanimous opinion. 37 In discussing the inequali ties of the Oklahoma law, Justice Douglas’ opinion outlined that a clerk who appropriates from their employer has committed the felony of embezzlement, a crime of moral turpitude by any reasonable stan dard. 38 And yet, as written, indi viduals committing such a crime many times would nonetheless be exempted from any potential ster ilization penalty. 39 Simultaneously, any individual committing grand

status as a legislator to stall further consideration and request a delay in the submittal of appellate briefs. When the matter could be stalled no further, his brief was a laundry list of potential rationales for reversal. 29 He argued the obvious: cruel and unusual punishment and inadequate due process. He also argued the less obvious but potentially grittier and interesting rationales, including that the sterilization statute was essen tially an ex post facto law considering that Skinner had already been con victed prior to the law’s passage. But one argument stood out in particu lar, even if the Oklahoma Supreme Court later dismissed its merits: the idea that Skinner’s 14th Amendment entitlement to equal protection had been infringed. In a stroke of luck, the Oklahoma Supreme Court took more than two years to rule against Skinner. The delay further permitted skepticism of eugenic intentions to permeate into American society as war con sumed Europe and further details of Aryan purity campaigns came to light. 30 These intervening years permitted Americans to learn that Germany’s 1933 eugenics law had been utilized far more broadly than anticipated, with more than 400,000 Europeans having been sterilized by force in a number of “hereditary health courts” with deprivation of due process. 31 For the final appeal, it was now time for a new attorney, one with experience in the U.S. Supreme Court, to take up responsibility for the case and navigate it to a con clusion before the highest court in the land. Guy Andrews, like Claud Briggs, was also from McAlester, a prominent attorney in the state and came to the practice of law from hardscrabble roots. Formerly a schoolteacher in Texas and later

the unforeseen consequences may simply be to enflame rather than quell criminality. 27 Almost in pro phetic coincidence, on the same day of the hearing, another six inmates escaped an Oklahoma correctional facility for fear of the sterilization law. 28 Skinner lost the hearing, and the case moved on as an appeal to the Oklahoma Supreme Court. Knowing that public sentiment was slowly changing on the matter of eugenics – largely because of news coverage from Europe, where the Third Reich was beginning to pursue sterilization procedures on a massive scale – Briggs used his Jack Skinner’s classification as a “habitual criminal” led to him being the second Oklahoma inmate selected for sterilization surgery. Courtesy of The Oklahoman .

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.

MAY 2023 | 15

THE OKLAHOMA BAR JOURNAL