The Oklahoma Bar Journal May 2023

larceny twice for the same amount of money as the embezzlement and the same unjust enrichment would face the specter of a vasectomy or salpingectomy (removal of a fallo pian tube) from a physician’s blade. 40 While the court did not spe cifically overturn Buck v. Bell and therefore left the prospect of steril ization a potentially constitutional act, the opinion by Justice Douglas was sweeping enough to wipe away much desire by legislatures to continue moving in the direc tion of criminal offender steriliza tion by ruling in Skinner’s favor. In an era when individual rights were not prioritized in the lan guage of many judicial opinions, a new standard was articulated for the very first time: the concept of “strict scrutiny” for a statute that may unequally burden individual interests and potentially infringe upon a constitutional right. Previewed as a possibility in Justice Harlan Stone’s famous footnote 4 in United States v. Caroline Products Co. , the idea of a “narrower scope” for judicial review had never been given the name “strict scrutiny” until Skinner . 41 Perhaps Justice Douglas did not even know it, but he had opened the door to a progeny of case law that would lead all the way to Brown v. Board of Education and beyond. Before his death in 1977, Skinner had six grandchildren and 10 great-grandchildren, and he had committed no further crimes. 42

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23. Okla. Senate Journal , 15th Legis. At 489 90 (Feb. 18, 1935); Skinner v. Oklahoma ex rel. Williamson , 316 U.S. 535, 537 (1942). 24. Transcript, Oklahoma v. Skinner , Okla. Pitts. Co. Dist. Ct. No. 15734 (1936) at 55-56.

Michael J. Davis is an assistant professor of criminal justice at Southeastern Oklahoma State University, where

25. Id . at 99-100. 26. Id . at 160-165. 27. Id . at 166-167.

28. “Six Escape Prison as Jury Decides on Sterilization,” Tulsa Daily World (Oct. 21, 1936). 29. Petition, Okla. Sup. Ct. No. 28229 (Oct. 27, 1937). 30. Lawrence A. Zeidman, Brain Science Under the Swastika (2020). 31. Id. 32. 3 Joseph H. Thoburn, A Standard History of Oklahoma 1060 (1st. ed. 1916). 33. Skinner v. Oklahoma , Petition for Writ of Certiorari, LSCT N. 782, at 23 (Dec. 4, 1941). 34. Id . at 10-11. 35. Victoria F. Nourse, In Reckless Hands: Skinner v. Oklahoma and the Near Triumph of American Eugenics 141 (2008). 36. “Court Curious About State’s Sterilizing Law,” The Daily Oklahoman 15 (May 7, 1942). 37. Skinner v. Oklahoma ex rel. Williamson , 316 U.S. 535 (1942). 38. Id. at 538. 39. Id. at 539. 40. Id. 41. United States v. Carolene Products Co ., 304 U.S. 144, 152 n.4 (1938); Skinner v. Oklahoma ex rel. Williamson , 316 U.S. 535, 141 (1942). 42. Victoria F. Nourse, In Reckless Hands: Skinner v. Oklahoma and the Near Triumph of American Eugenics 160 (2008).

he also serves as special assistant to the president for Compliance. Mr. Davis recently completed a three-year term on the OBA Board of Governors (2020-2022) and currently serves on the MCLE Commission. ENDNOTES 1. Skinner v. Oklahoma ex rel. Williamson , 316 U.S. 535, 539 (1942). 2. Id. 3. Transcript, Oklahoma v. Skinner , Okla. Pitts. Co. Dist. Ct. No. 15734 (1936) at 53. 4. Id . at 161. 5. Skinner v. Oklahoma ex rel. Williamson , 316 U.S. 535, 537 (1942). 6. “Eugenics Law Revisited,” The Daily Oklahoman (May 16, 1935) at 12. 7. Transcript, Oklahoma v. Skinner , Okla. Pitts. Co. Dist. Ct. No. 15734 (1936) at 100. 8. Id . at 125. 9. Victoria F. Nourse, In Reckless Hands: Skinner v. Oklahoma and the Near Triumph of American Eugenics 92 (2008). 10. Id. 11. “Posses Fear for Captive Guards,” The Daily Oklahoman (May 14, 1936) at 1. 12. “Posse Pushes Hunt for Pair Near Antlers,” The Daily Oklahoman (May 15, 1936) at 1. 13. “Briggs Plans to Fight on Law,” The Daily Oklahoman ( May 20, 1936) at 2. 14. “More About Sterilization,” The Oklahoma News (May 11, 1934) at 1. 15. Victoria F. Nourse, In Reckless Hands: Skinner v. Oklahoma and the Near Triumph of American Eugenics 56 and 74 (2008). 16. Id . at 41. 17. Buck v. Bell , 274 U.S. 200 (1927). 18. Harry H. Laughlin, Eugenical Sterilization in the United States (1922). 19. 1935 Okla. Sess. Laws, ch. 26 at 94-99; Edwin H. Sutherland, Criminology, 622 (1924). 20. In re Main , 19 P.2d 153, 156 (1933). 21. “The Presumption of Constitutionality,” 31 Colum. L. Rev. 7 (1931). 22. Id.

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.

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THE OKLAHOMA BAR JOURNAL