In Reckless Hands: Skinner v. Oklahoma and the Near Triumph of American Eugenics by Victoria F. Nourse (Hardcover, 240 pages)
A common theme in fiction is the misuse of science, based on the assurance that scientists have special knowledge which will serve the needs of society. One example is eugenics, the idea that good breeding of humans (by force if necessary) will improve society.
A familiar story there is Carrie Buck, a victim of sexual violence, who was sterilized, and told “three generations of imbeciles are enough.” History shows that there were no imbeciles, Carrie Buck included.
Buck v. Bell was a low point in the history of the Supreme Court.
A later case, Skinner v. Oklahoma, is much less known. It involves eugenics as well, this time an Oklahoma law that targeted habitual criminals. Over fifteen years of controversy the Supreme Court this time overturned the law. Eugenics did not end, but it was on notice.
In Reckless Hands, the title from a warning about the use of eugenics in the Skinner case, tells the tale of this lesser known case. It is a tale of politics in the 1930s, life in prison, the complexities and dangers of science, and the changing nature of the law over time.
It’s filled with colorful characters; the reader learns a lot while being entertained.
Supreme Court cases are not just about individual litigants. They tell wider stories about important issues and the times they take place. Many books take advantage of this fact, using Supreme Court cases as “case studies.” In Reckless Hands is a very good addition to this genre.
This book tells the tale of a largely forgotten Supreme Court case, which is not only interesting on its own but is also a central turning point of constitutional law. Nourse examines the many threads of this story, involving crime, science, and how imperfect humans deal with both.
Should I Read It?
In Reckless Hands tells a colorful tale of prisoners in 1930s Oklahoma resisting what their so-called betters argued was good for them. And, that is just part of the story.
Nourse basically writes two books here. Some readers might enjoy the human interest component, involving eugenics (pro and con) while finding the legal analysis less to their liking. But, Nourse handles both well, translating an important legal story for the regular reader.
This book also fits well with some others reviewed for this website. Consider these books:
- Quarantine Life from Cholera to COVID-19
- Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck
- In Reckless Hands
- Griswold v. Connecticut: Birth Control and the Constitutional Right of Privacy
- Jane Against the World: Roe v. Wade and the Fight for Reproductive Rights
Quarantine Life discusses the history of disease. The author provides many lessons that pandemics have taught us, mixing science with literature and human interest stories.
The next book discusses the infamous case of Buck v. Bell, the case that upheld a eugenics law. This book is a follow-up, which shows how (imperfectly) the Supreme Court redeemed itself. Both books again are partially about science, including how it can be abused to allegedly help solve the problems of society. Law too shows its role, for good and ill.
Both Griswold and Roe v. Wade concern legal battles over birth control and abortion. Both books center on post-World World Two court cases, which are a result of a new legal understanding of rights. Nourse discusses this development. Again, science, society, and the law are all involved.
In Reckless Hands is appropriate for the general reader though discussions of legal matters at times might bore some readers. I think this is more of an issue in the final analytical chapter.
The book has some black and white photographs.
Prologue: An Intellectual Seduction
Eugenics, the idea of better breeding leading to better humans, is a type of intellectual seduction. Science holds promise for a better society. Eugenics is just one way scientists have tried to find a “natural” way to address crime, inequality, and the troubles of nature.
Skinner v. Oklahoma (1942) warned us that such power “in reckless hands” can be dangerous. This book, along with crime and science, is a book about this Supreme Court case. The result was originally based on traditional principles of equality, which are no longer applied the same way. The principles were “vessels of history,” a reflection of the history of the day.
We now understand Skinner to have different lessons, having lived many more years of history. A full accounting of the case requires us to examine the full breadth of American history.
1: The Justice, the Governor, and the Dictator
“Sterilization – How It Works” was a New York Daily News article published shortly before Christmas, 1933. The article highlighted three quite different men: Justice Oliver Wendell Holmes, Governor “Alfalfa” Bill Murray (populist governor of Oklahoma), and Adolf Hitler.
The connecting tissue was eugenics. During the Depression, the felt need to sterilize unfit people seemed ever more reasonable, including Oklahoma’s policy of sterilizing criminals.
Justice Holmes emphasized reasonableness in Buck v. Bell, the case where the Supreme Court upheld the constitutionality of eugenics with but one dissenting vote.
Germany’s support of eugenics put some people on guard, but many remained supportive of the principle. Nazi Germany’s support of eugenics showed the fear of unfit “races” was defined in a broad sense to mean more than black and white type races. “Races” meant a broad “type” of person, which could include ethnic, religious, criminal, economic, and many others.
2: The Brain Trust
Oklahoma passed a law in 1933 to sterilize certain types of habitual criminals, those who committed three felonies. Criminologists believed that such a tendency was a result of mental deficiency that could be inherited. Sterilization would help reduce crime.
The law was specifically applied to residents of the McAlester prison, who threatened violence if the state attempted to sterilize them. State and federal court rulings upheld eugenic laws, but there was still some dispute on particular details. Could the law save them still?
A lawyer was called to defend inmates, to keep the peace, and because the warden now was politically opposed to the governor who supported the eugenics law. The three leaders of the prisoners’ committee were nicknamed “the brain trust,” a reference to FDR’s New Deal advisors.
Those who promoted eugenics appealed to the long practice of breeding animals, including thoroughbred horses. Why not “breed” humans? There were weak animals and feebleminded humans, including humans whose corrupt genetics expressed itself sexually (prostitutes, etc.).
Sterilization had a special horror for prison inmates. As those who watch the film, Shawshank Redemption would know, sex was used as a weapon in McAlester prison. Inmates were very concerned about their manhood and had to resist being humiliated by means of sexual violence.
Sterilization was a grave wrong in this context. It also meant the destruction of a chance for any future of their family line. Prison was temporary. Sterilization was permanent.
4: Heat and Love
George Winkler (a prisoner) was chosen as a test case to determine the constitutionality of the habitual criminal sterilization law. Sterilization was understood to protect public health, not a punishment. Claud Briggs, Winkler’s lawyer, had an uphill battle against the law.
Briggs argued that the law was a type of “class legislation,” a traditionally disfavored law because it was not applied evenhandedly. The state put on scientific evidence the value of eugenics. The first ruling went against the prisoners.
Briggs did not argue (as one might today) that eugenics was a violation of liberty, including the right to have children. The law at the time had a stronger acceptance of public welfare as a limit on such rights. “Liberty” claims were disfavored by progressives of the day, something that property owners brought against workers and the New Deal legislation.
5: White Trash
The prisoners used the press as a means to promote their anti-sterilization cause. One feature article accepted eugenics was acceptable to combat feeblemindedness but was not appropriate as applied to prisoners. Not all prisoners were feebleminded. The chairman of the Oklahoma Board of Charities and Corrections also argued eugenics was a health, not penal, matter.
Governor Murray, a supporter of the eugenics law, lost the support of the public. Claude Briggs became the leader of the state senate. A new habitual criminal sterilization law was proposed. Briggs could not stop it, but did manage to limit it to crimes of “moral turpitude.” The term had a taint of racism, used by Southern states as a code word for “crimes blacks commit.”
6: Skinner’s Trial
The new law meant a new test case. The first person chosen escaped prison before needing to submit to sterilization. Jack Skinner (his given name was Jasper Ingram; “Skinner” might have arisen from prison slang for a naive new convict) became the new test case.
Skinner was guilty of chicken stealing and armed robbery, the new law only requiring two felonies to make someone liable to be sterilized. He declared that being sterilized would mean he “would be out and alone” and be “without inspiration.”
The state argued that sterilizing Jack Skinner was safe and that the evidence that it was in the public interest to sterilize habitual criminals was not legally open to dispute. Briggs tried to dispute the evidence of its value and the safety of sterilizing non-feebleminded prisoners. Briggs also spoke of the psychological effects of sterilization. Skinner lost the first round.
7: The Supreme Court in 1937
The election of 1936 appeared to be a turning point in the battle President Roosevelt was having with the Supreme Court. The Supreme Court, then led by Chief Justice Charles Evan Hughes, repeatedly declared New Deal policies unconstitutional. Roosevelt proposed to “pack” the Court with more justices. The other side saw the New Deal as the real threat to liberty.
The actual cases were more nuanced than the more simplistic “us vs. them” battle reported in the press and understood by much of the public. But, this was a major moment of constitutional change, symbolized by the overruling of an old case that blocked a minimum wage law. The Supreme Court was even more likely to uphold social welfare legislation.
8: Science in a Foreign Mirror: 1937-1941
The prisoners argued sterilization was a form of “hitlerization,” but the public continued to accept eugenics as acceptable public policy. The only exception is the Catholic Church. The support of eugenics is suggested by the fact that it took years before even the American Civil Liberties Union started to be concerned with the Oklahoma law.
Claud Briggs appealed Skinner’s case using arguments suitable for how the law was understood at the time. Briggs did not focus his argument on rights; he tried to show the law failed as a matter of reasonable use of the “police power.” For instance, it supposedly was a law to promote public health but did not carefully target younger inmates most likely to have children.
The Oklahoma Supreme Court, by a divided vote, upheld the law in 1941. Meanwhile, opposition to eugenics started to grow, significantly helped by the growing fears about Nazi Germany.
9: Deciding Skinner
The news was overshadowed by the aftershocks of a violent prison break, but the U.S. Supreme Court accepted an appeal of the Skinner case. Skinner himself was paroled by this time though was still technically liable to be sterilized. As a cost-saving device, Briggs did not argue the case in person, submitting the case by written briefs alone.
The New Deal Court was concerned about striking down the eugenics law, and some justices were still supportive of Buck v. Bell. The law was a matter of social policy, which the justices generally felt was the discretion of the legislature. They rested on a conservative approach: the law violated equal protection by only targeting certain types of criminals.
The opinion did not strike down sterilization laws across the board but did help to make the procedure more suspect. The opinion also spoke of a “human right” or “civil right” to have offspring, which later was cited as a basis of a right to privacy. The case would in hindsight be seen as part of a new era where the Supreme Court was concerned about civil rights.
Epilogue: Failures of Modern Memory
Eugenics is a warning about using science to regulate society. We should be on guard as the mapping of the human genome now occurs. A sort of “soft eugenics” might arise where we use the knowledge we obtain to try to address current problems. We should be careful about assuming how genes cause human actions, including seeking a “gay gene” or a “shy gene.”
Skinner also teaches us the continuing importance of an open-ended concept of equality that goes behind typical race or sex-based approaches. Traditionally, equal protection appealed to anti-aristocratic concerns. Equality under the law is ultimately about democracy, rule by the people, and preventing harm against disfavored minorities.
Skinner after World World II was seen as a case that protected individual rights. This was a result of the lessons of history about the need for such rights. Science continues to play an important part in our lives. But, equality, rights, and democracy must take precedence.
Points to Ponder
Alan Dershowitz wrote a book entitled Rights From Wrongs: A Secular Theory of the Origins of Rights. He opposes the idea that rights came from nature or God. Dershowitz argued that rights arise when we find they are necessary. History showed us, for instance, that religious freedom was important. The Protestant Reformation can be read about here.
Prof. Nourse teaches a similar message about how our modern understanding of rights developed. Eugenics was first accepted as a progressive way to improve humanity. Experience showed this was a mistaken view. And, then Nazi Germany really showed us the dangers.
Nourse also teaches that over time the law “sees” the world in changing ways. This is a lesson to remember when many people appeal to so-called “original understanding,” using how the Constitution and the law were understood in the past to apply the law today. If history will be our guide, we need to have a full and clear understanding of how it truly occurred.
Victoria Nourse is one of the nation’s leading scholars on statutory interpretation, Congress, and the separation of powers. She has written multiple more academic type books than this one on how to interpret the law and a legal casebook on impeachment.
Professor Nourse is currently a law professor. She has reached developed her practical view of how the law works through many years in public service. Nourse was a lawyer in the Justice Department, Special Counsel to the Senate Judiciary Committee (then led by Senator Biden), and later Chief Counsel to Vice President Biden.
The story of her role in the fight for the original Violence Against Women Act is told in the 2009 book Equal: Women Reshape American Law. Victoria Nourse was nominated by President Obama to be a federal appeals judge, but her nomination was blocked from coming to a vote.
Is In Reckless Hands a Reliable Source?
Victoria Nourse spent many years working on this small volume and wrote about what she knows.
For instance, those who wish to understand how constitutional law worked in the days of Buck v. Bell should read her article A Tale of Two Lochners. I would suggest many “experts” who toss around “Lochner” without much understanding check it out.
Prof. Nourse knows the legal history and has done her homework regarding the surrounding events of the material covered. She makes sure to let us know that things were different back then and has done the work to show us how. There are fifty pages of in-depth endnotes, often with her additional comments helping to add depth to the text.
Nourse finishes by analyzing the lessons Skinner has to teach about science and the law. I would treat this portion with more of a grain of salt since this is less in her comfort zone. But, as a whole, the law and history found in this book are reliable.