Part Four:Eugenics and the Law

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"Some one's idea of the public weal is the excuse for every

abuse ever committed by power!"

Charles A. Boston, "A Protest Against Law Authorizing the Sterilization of Criminals and Imbeciles," 1913.

In the legal community, eugenics thought reflected the same concerns as within the larger community. Within the law, eugenics functioned to reinforce the status quo and the racial, class, and sex divisions in American society. The economic conservatism of the movement was particularly marked. It is not surprising that lawyers would embrace the eugenics movement, since they shared many traits with the eugenicist leaders: both groups were primarily white, middle to upper class, predominantly Eastern, well-educated professionals. Both came into frequent contact with the criminal classes and institutionalized populations.

The legal community was overwhelmingly supportive of the eugenics movement in the period from 1900 to 1930, although a few critical articles did appear.95 Recommendations to eugenical authors like Laughlin, Davenport, and Wiggam were common.96 Most of the criticisms of the eugenics movement appeared in the Catholic journals.97 In the past twenty years, articles condemning eugenical sterilization have become the norm, although articles in favor of eugenics still appear in reputable journals.98

One article, "From Pathology to Criminology: A Study in Abnormal Psychology and Eugenics," by Harold I. Gosline,99 is a typical defence of the eugenicist movement. The article was presented at the Eleventh Annual Meeting of the Eugenic Research Association, in 1923. Rambling and unstructured, the article is marked by a tone of condescension running throughout the discussions of the four men whose examinations makes up the bulk of the article. Gosline's examination of one man, arrested for attempted carnal knowledge, indicates that he is a borderline mental defective. Gosline comments, "He lacks imagination and general ideas and shows weakness of will, poor attention, and poor ability in the thought process."100 Despite these deficiencies in mental ability, Gosline notes in passing that the subject has a "speaking knowledge of four languages sufficient for the needs of one in his position in life."101 Gosline advocates an extensive program of scientific birth control to eradicate criminals and claims "a new race will arise when it is understood and practiced."102 Sixty pages of "Case Histories" are attached to the article, which consist of interrogation of the men with such questions as "Were your people good church people? Were they peculiar in any way? Do they own their own home or rent it? Was [your sister] a good girl? Did she run around with the boys?"103 The article is typical in its condescension, its grandiose claims for birth control, and its use of scientific trappings which cover deeper issues of social control.

The legal periodical, Law Notes, provided regular coverage of eugenical issues and reflected the same focus on issues of race and immigration that marked the larger eugenics movement. Law Notes called for a total ban on immigration,104 suggested that most criminals were immigrants,105 and defended the use of attorney appeals to racial prejudice in criminal trials,106 in addition to defending a complete eugenical program,107 including support for the validity of the family studies.108 In the same way, the scope of the eugenical sterilization statutes also indicate goals that revolve more around social control than inherited deficiencies. Laughlin's Model Eugenical Sterilization Law is typical in its inclusion of far more than the mentally impaired. Laughlin wrote that the sterilization statutes should address all of "the socially inadequate classes," which he defined as:

(1) Feeble-minded; (2) Insane (including the psychopathic); (3) Criminalistic (including the delinquent and wayward); (4) Epileptic; (5) Inebriate (including drug-habituates); (6) Diseased (including the tuberculous, the syphilitic, the leprous, and others with chronic, infectious and legally segregable diseases); (7) Blind (including those with seriously impaired vision); (8) Deaf (including those with seriously impaired hearing); (9) Deformed (including the crippled); and (10) Dependent (including orphans, ne'er-do-wells, the homeless, tramps and paupers).109

But Laughlin's Model Law in fact refrained from including the full range of categories that many eugenicists believed needed to be sterilized. One compilation of the targeted groups listed thirty-four separate classes who eugenicists believed should be sterilized to avoid the procreation of inferior children:

(1) Confirmed criminals, (2) Idiots, (3) Imbecils [sic], (4) rapists, (5) Insane, (6) Feeble-minded, (7) Epileptics, (8) Those guilty of carnal abuse of a female, (9) Moral degenerates, (10) Habitual criminals, (11) Sexual perverts showing hereditary degeneracy, (12) Two-time sex criminals with present moral depravity, (13) Three-time sex criminals with present moral depravity; (14) Lifers with one previous crime and present moral depravity, (15) Hereditary mental defectives, (16) Syphilitics, (17) Incurable chronic maniacs, (18) Dementias, (19) Hereditary criminals, (20) sexual criminals, (21) Drunkards, (22) Drug fiends, (23) Prostitutes, (24) Twice-convicted felons, (25) Lunatics, (26) Diseased and degenerate people, (27) Hereditary insanity that it recurrent, (28) Criminals, (29) Sodomists, (30) Those guilty of crimes against nature, (31) Those mentally diseased, (32) Any inmate of penal or charitable institution, (33) Morons, (34) Habitual sexual criminals.110

The broad reach of the eugenicists was noted at the time. In fact, although it is frequently claimed that eugenics thought was pervasive and that arguments against eugenical laws were therefore weak and underdeveloped, there were coherent and detailed criticisms of the legal eugenics movement by 1915. (J. H. Landman's pithy summary of the anti-eugenicist stance came a bit later, in 1933, "Unfortunately our scant scientific eugenic knowledge has been prostituted to justify ancestor worship, race superiority, snobbery, class distinction, intellectual aristocracy, anti-semitism, and race prejudice."111) For example, one court commented while overturning an eugenical sterilization statute, "There are other things besides physical or mental disease that may render persons undesirable citizens....Racial differences, for example, might afford a basis for such an opinion in communities where the question is unfortunately a permanent and paranoid issue."112 One law review article cited a paper read before the American Academy of Medicine in 1913, which said, "We can find no proof of the existence of hereditary criminalistic traits....[W]e cannot absolutely deny such inheritance but...feel that careful observation elsewhere will bring forward evidence rather against such a theory than in favor of it."113

Similarly, in his 1913 article, "A Protest Against Laws Authorizing the Sterililization of Criminals and Imbeciles,"114 Charles Boston explored a number of reasons for his opposition to eugenical sterilization, summarizing his objections,

Before advocating such laws, I would wish to be assured that the interests of the community demand them; that the assumed principle of herdity be true; that the safeguards of liberty are not to be thrown aside for a merely imaginary good; that they be preserved as far as possible and that crude legislation (and in my view it is all crude) be avoided. Nor can I close without the warning that prisons and insane asylums have been the most shameful institutions of so-called Christian civilization; that in them cruelty has been systematically practised and in many instances the innocent made to suffer more than in any other establishments.115

Boston's article created barely a ripple of interest in the legal world. The article was rarely cited116 despite its thorough and well-reasoned arguments, which included Boston's facetious suggestion for a second statute in response to the first's elitist bias:

Whereas inordinate individual wealth is damaging to society, and undesireable civic tendencies are transmissable by heredity, it is hereby enacted that each association for the improvement of the poor shall call in two philosophic anarchists and one socialist, who shall determine whether any person who shall have acquired inordinate wealth is by reason of the over development of his acquisitive greed a menace to the peace and welfare of the community, and if they so determine, they may cause to be performed upon him an operation for sterilization to prevent procreation.117

The broad reach of the eugenicists had been encouraged, in part, by the results of the World War I-era testing of all soldiers, using the newly developed Stanford Binet test (used also on Carrie Buck, whose compulsory eugenical sterilization was upheld by the supreme court in Buck v. Bell; see Part Five of this paper), which indicated that almost half of all white recruits were morons according to the test, as were 89 percent of all Black recruits.118 Although some commentators questioned the validity of the test, and noted that questions on such topics as the color of sapphires and the location of Cornell University might reflect qualities other than intelligence,119 the statistics, when released, created great anxiety and gave the eugenics movement a substantial boost.

Similarly, since 88 percent of all prostitutes tested at or below the mental level of an eleven year old, the eugenicists thought that prostitutes were in general mental and moral defectives. The eugenical sterilization statutes typically reached prostitutes, either as a group specifically listed or in practice. One of the main "charges" against Carrie Buck was sexual licentiousness and she was even specifically charged with prostitution, although there seems to have been no evidence for such a charge.120 One expert at her hearing stated, "I would say the bulk of them [prostitutes] are feeble-minded...They come there [to the ayslum] having had venereal diseases amd having had children, and brother, worse than all, white women come there having negro children."121 One of the common arguments against eugenical sterilization was that sterilized women would "be more prone to engage in illicit intercourse, to adopt a life of prostitution, and to spread venereal disease."122

Also frequently covered by the eugenical sterilization statutes were homosexuals, typically called sexual perverts, moral degenerates, and sodomists. The wording of the Iowa state statute was broader than most: sterilization was mandated for "criminals, rapists, idiots, feeeble-minded, imbeciles, lunatics, drunkards, drug fiends, epileptics, syphilitics, moral and sexual perverts, and diseased and degenerate persons."123 The Iowa statute had been amended in 1913 to add rapists, moral and sexual perverts, and diseased and degenerate persons. In 1928, a Utah court upheld the sterilization of a young Black man who had "acted lovingly towards other boys who were confined in prison."124

Although the theory of race suicide is conventionally thought to have been prevalent between 1900 and 1910, the idea in fact retained vitality within legal commentary well into the 1930's. In 1929, the influential J.H. Landman responded to the eugenicist race suicide argument that claimed lawyers, doctors, and other professionals were having few children, while artisans and manual workers were having a great many more, by saying sharply, "This data merely goes to show that artisans of certain vocations rear larger families than others. It certainly does not follow that our menial laborers...who have large families, are idiots and morons."125 In a series of articles advocating the adoption of eugenical sterilization statute in Kentucky, published between 1934 and 1937,126 race suicide theory was key. (Despite the heavy-handed advocacy of eugenical sterilization, Kentucky remains within the minority of states that has not adopted a sterilization statute.) In 1934, one advocate argued:

Since time immemorial, the criminal and defective have been the 'cancer of society.' Strong, intelligent, useful families are becoming smaller and smaller; while irresponsible, diseased, defective families are becoming larger. The result can only be race degeneration. To prevent this race suicide we must prevent the socially inadequate persons from propagating their kind, i.e., the feebleminded, epileptic, insane, criminal, diseased and others.127

Another argued in the same vein:

According to conservative estimates there are about twenty millions of individuals in the United States who are degenerate--mentally, morally or physically. Some of these are entirely helpless--slobbering idiots or hopeless imbeciles, others such as the criminal insane, sexual perverts and confirmed drug addicts, are dangerous to the public welfare. All are either a burden on or a menace to society....Eugenical sterilization has social and institutional as well as biological advantages.128

Only one author was not a whole-hearted advocate of eugenical sterilization and he did not dispute the basic premises of the race suicide theory, but felt that immigration control, rather than sterilization, was key to reducing the number of mental defectives. He argued, "[A] glance at the nationalities of the inmates of our hospitals for the mentally diseased and defective might shed some light upon this vexatious problem....[I]t might well be argued that our immigration laws would stand a rather close scrutiny in connection with the increasing number of incompetents."129

The race suicide arguments are excited, frequently apocalyptic, shrill. The historic influence of this sort of simplistic mentality in American nativist politics was traced by Richard Hofstadter in his classic essay, "The Paranoid Style in America Politics." In that essay, Hofstadter explained, "The paranoid is a militant leader. He does not see social conflict as something to be mediated and compromised....Since what is at stake is always a conflict between absolute good and absolute evil, the quality needed is not a willingness to compromise, but the will to fight things out to the finish."130 One contemporary author noted that the eugenicist hysteria was unfounded--"As we review the evidence, it is apparent that it does not sustain the alarmist views. Not only is it hypothetical as to whether sterilization is the proper solution, but moreover it is entirely uncertain as to whether a problem even exists!"131

The eugenic family studies of the late nineteenth and early twentieth centuries, under attack throughout the opening decades of the century, also remain a powerful image in the legal literature into the 1930's. In 1928, the family studies could still be referred to collectively as "the authoritative medical opinion of this country, based on exhaustive case study."132 Other legal writers disputed this characterization. J. H. Landman, an influential writer on eugenical issues, challenged the family studies, writing in 1929 of his annoyance that "such doctrinaire eugenicists as Lathrop Stoddard, E. M. East, Ellsworth Huntington, Henry H. Goddard, and others will still resort to the hackneyed genealogies of the Jukes and the Kallikaks."133 At Carrie Buck's hearing, expert witnesses referred to the "Callicac" (Kallikak), Jukes and Nam family studies.

Like the popular eugenicist writings, the law review articles on eugenics demonstrate how deeply engrained the financial motive is in eugenical sterilization arguments. Typically, the sterilization statutes only apply to those inmates who are capable of making their own living if sterilized and released. The minority of courts which struck down eugenical sterilization statutes frequently alluded to the mercenary motive which apparently animated them. One court, for example, noted, "The entire purpose of the enactment seems to be to save expense to future generations....Such does not seem to this court to be the proper exercise of the police power. It seems to be a tendency almost inhuman in its nature."134 One law review article favoring eugenical sterilization, typical of many, argued:

Permitting marriage after sterilization will increase the number of individuals that can become economically independent....[T]he mentally deficient, relieved from the burden of children can successfully be retained as functioning members of society, both from an economic and a social standpoint. Thus the taxpayer will be relieved of a great burden....Practically all authorities agree that mental deficiency is the mother of crime, pauperism and degeneracy. When the mentally deficient have a family to support they are forced into dire poverty, lacking the necessities of human existence....[Through sterilization] they are relieved of the economic burden of children, thus increasing their standard of living.135

More succintly, Dr. John Bell (of Buck v. Bell) said in an address to the American Psychiatric Association in 1929, that eugenical sterilization, "aside from any ethical, moral, or humane consideration," is "sound economic policy in that it converts a definite liability into a reasonable asset."136 Another eugenicist writer, Jessie Spaulding Smith, who reported on the First International Conference on Eugenics in London, noted that, with eugenical sterilization, "The expense of maintaining such an institution [for the feeble-minded] need not be great if it is rightly managed....If a farm and many of the simpler industries are conducted, the institution may be self-supporting or nearly so."137 Faced with a perceived social problem, the eugenicist leapt to the conclusion that it was the individual who must change to accommodate society (which is one reason why conservative commentators frequently argued that eugenics was a liberal movement committed to the supremacy of the community over the individual). The prevalence of the appeal to economics in eugenics writings led G. K. Chesterton to claim that the eugenicist was, at heart, the employer. Chesterton wrote:

[N]o one seems able to imagine capitalist industrialism being sacrificed to any other object....[the eugenicist] tacitly takes it for granted that the small wages and the income, desperately shared, are the fixed points, like day and night, the conditions of human life. Compared with them, marriage and maternity are luxuries, things to be modified to suit the wage-market"138

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