1. A statute of Oklahoma provides for the sterilization, by
vasectomy or salpingectomy, of "habitual criminals" -- an habitual
criminal being defined therein as any person who, having been
convicted two or more times, in Oklahoma or in any other State, of
"felonies involving moral turpitude," is thereafter convicted and
sentenced to imprisonment in Oklahoma for such a crime. Expressly
excepted from the terms of the statute are certain offenses,
including embezzlement. As applied to one who was convicted once of
stealing chickens and twice of robbery, held
statute violated the equal protection clause of the Fourteenth
Amendment. P. 316 U. S.
2. The State Supreme Court having sustained the Act, as applied
to the petitioner here, without reference to a severability clause,
the question whether that clause would be so applied as to remove
the particular constitutional objection is one which may
appropriately be left for adjudication by the state court. P.
316 U. S.
189 Okla. 235
115 P.2d 123
Page 316 U. S. 536
CERTIORARI, 315 U.S. 789, to review the affirmance of a judgment
in a proceeding under the Oklahoma Habitual Criminal Sterilization
Act, wherein it was ordered that the defendant (petitioner here) be
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This case touches a sensitive and important area of human
rights. Oklahoma deprives certain individuals of a right which is
basic to the perpetuation of a race the right to have offspring.
Oklahoma has decreed the enforcement of its law against petitioner,
overruling his claim that it violated the Fourteenth Amendment.
Because that decision raised grave and substantial constitutional
questions, we granted the petition for certiorari.
The statute involved is Oklahoma's Habitual Criminal
Sterilization Act. Okla.Stat.Ann. Tit. 57, §§ 171, et
L.1935, pp. 94 et seq.
That Act defines an
"habitual criminal" as a person who, having been convicted two or
more times for crimes "amounting to felonies involving moral
turpitude," either in an Oklahoma court or in a court of any other
State, is thereafter convicted of such a felony in Oklahoma and is
sentenced to a term of imprisonment in an Oklahoma penal
institution. § 173. Machinery is provided for the institution by
the Attorney General of a proceeding against such a person in the
Oklahoma courts for a judgment that such person shall be rendered
sexually sterile. §§ 176, 177. Notice, an opportunity to be heard,
and the right to a jury trial are provided. §§ 177-181. The issues
triable in such a proceeding are narrow and confined.
Page 316 U. S. 537
If the court or jury finds that the defendant is an "habitual
criminal" and that he "may be rendered sexually sterile without
detriment to his or her general health," then the court "shall
render judgment to the effect that said defendant be rendered
sexually sterile" (§ 182) by the operation of vasectomy in case of
a male, and of salpingectomy in case of a female. § 174. Only one
other provision of the Act is material here, and that is § 195,
which provides that
"offenses arising out of the violation of the prohibitory laws,
revenue acts, embezzlement, or political offenses, shall not come
or be considered within the terms of this Act."
Petitioner was convicted in 1926 of the crime of stealing
chickens, and was sentenced to the Oklahoma State Reformatory. In
1929 he was convicted of the crime of robbery with firearms, and
was sentenced to the reformatory. In 1934, he was convicted again
of robbery with firearms, and was sentenced to the penitentiary. He
was confined there in 1935 when the Act was passed. In 1936, the
Attorney General instituted proceedings against him. Petitioner, in
his answer, challenged the Act as unconstitutional by reason of the
Fourteenth Amendment. A jury trial was had. The court instructed
the jury that the crimes of which petitioner had been convicted
were felonies involving moral turpitude, and that the only question
for the jury was whether the operation of vasectomy could be
performed on petitioner without detriment to his general health.
The jury found that it could be. A judgment directing that the
operation of vasectomy be performed on petitioner was affirmed by
the Supreme Court of Oklahoma by a five-to-four decision. 189 Okla. 235
Several objections to the constitutionality of the Act have been
pressed upon us. It is urged that the Act cannot be sustained as an
exercise of the police power, in view
Page 316 U. S. 538
of the state of scientific authorities respecting inheritability
of criminal traits. [Footnote
] It is argued that due process is lacking because, under this
Act, unlike the Act [Footnote
] upheld in Buck v. Bell, 274 U.
, the defendant is given no opportunity to be
heard on the issue as to whether he is the probable potential
parent of socially undesirable offspring. See Davis v.
216 F. 413; Williams v. Smith,
190 Ind. 526,
131 N.E. 2. It is also suggested that the Act is penal in
character, and that the sterilization provided for is cruel and
unusual punishment and violative of the Fourteenth Amendment.
See Davis v. Berry, supra. Cf. State v. Felen,
Wash. 65, 126 P. 75; Mickle v. Henrichs,
262 F. 687. We
pass those points without intimating an opinion on them, for there
is a feature of the Act which clearly condemns it. That is its
failure to meet the requirements of the equal protection clause of
the Fourteenth Amendment.
We do not stop to point out all of the inequalities in this Act.
A few examples will suffice. In Oklahoma, grand larceny is a
felony. Okla.Stats.Ann. Tit. 21, §§ 1705, 5. Larceny is grand
larceny when the property taken exceeds $20 in value. Id.,
§ 1704. Embezzlement is punishable "in the manner prescribed for
feloniously stealing property of the value of that embezzled."
§ 1462. Hence, he who embezzles property worth more
than $20 is guilty of a felony. A clerk who appropriates over $20
from his employer's till (id.
§ 1456) and a stranger who
steals the same
Page 316 U. S. 539
amount are thus both guilty of felonies. If the latter repeats
his act and is convicted three times, he may be sterilized. But the
clerk is not subject to the pains and penalties of the Act no
matter how large his embezzlements nor how frequent his
convictions. A person who enters a chicken coop and steals chickens
commits a felony (id.,
§ 1719), and he may be sterilized
if he is thrice convicted. If, however, he is a bailee of the
property and fraudulently appropriates it, he is an embezzler.
§ 1455. Hence, no matter how habitual his
proclivities for embezzlement are, and no matter how often his
conviction, he may not be sterilized. Thus, the nature of the two
crimes is intrinsically the same, and they are punishable in the
same manner. Furthermore, the line between them follows close
distinctions -- distinctions comparable to those highly technical
ones which shaped the common law as to "trespass" or "taking."
Bishop, Criminal Law (9th ed.) Vol. 2, §§ 760, 799, et
There may be larceny by fraud, rather than embezzlement
even where the owner of the personal property delivers it to the
defendant, if the latter has, at that time, "a fraudulent intention
to make use of the possession as a means of converting such
property to his own use, and does so convert it." Bivens v.
6 Okla.Cr. 521, 529, 120 P. 1033, 1036. If the
fraudulent intent occurs later, and the defendant converts the
property, he is guilty of embezzlement. Bivens v. State, supra;
Flohr v. Territory, 14 Okla. 477
78 P. 565. Whether a particular act is larceny by fraud or
embezzlement thus turns not on the intrinsic quality of the act,
but on when the felonious intent arose -- a question for the jury
under appropriate instructions. Bivens v. State, supra; Riley
64 Okla.Cr. 183, 78 P.2d
It was stated in Buck v. Bell, supra,
that the claim
that state legislation violates the equal protection clause of the
Fourteenth Amendment is "the usual last resort of constitutional
arguments." 274 U.S. p. 274 U. S. 208
Under our constitutional
Page 316 U. S. 540
system, the States, in determining the reach and scope of
particular legislation, need not provide "abstract symmetry."
Patsone v. Pennsylvania, 232 U. S. 138
232 U. S. 144
They may mark and set apart the classes and types of problems
according to the needs and as dictated or suggested by experience.
See Bryant v. Zimmerman, 278 U. S. 63
cases cited. It was in that connection that Mr. Justice Holmes,
speaking for the Court in Bain Peanut Co. v. Pinson,
282 U. S. 499
282 U. S. 501
stated, "We must remember that the machinery of government would
not work if it were not allowed a little play in its joints." Only
recently, we reaffirmed the view that the equal protection clause
does not prevent the legislature from recognizing "degrees of evil"
(Truax v. Raich, 239 U. S. 33
239 U. S. 43
our ruling in Tigner v. Texas, 310 U.
, 310 U. S. 147
that "the Constitution does not require things which are different,
in fact, or opinion to be treated in law as though they were the
same." And see Nashville, C. & St.L. Ry. v. Browning,
310 U. S. 362
Thus, if we had here only a question as to a State's classification
of crimes, such as embezzlement or larceny, no substantial federal
question would be raised. See Moore v. Missouri,
159 U. S. 673
Hawker v. New York, 170 U. S. 189
Finley v. California, 222 U. S. 28
Patsone v. Pennsylvania, supra.
For a State is not
constrained in the exercise of its police power to ignore
experience which marks a class of offenders or a family of offenses
for special treatment. Nor is it prevented by the equal protection
clause from confining "its restrictions to those classes of cases
where the need is deemed to be clearest." Miller v.
Wilson, 236 U. S. 373
236 U. S. 384
And see McLean v. Arkansas, 211 U.
. As stated in Buck v. Bell, supra,
274 U. S. 208
". . . the law does all that is needed when it does all that it
can, indicates a policy, applies it to all within the lines, and
seeks to bring within the lines all similarly situated so far and
so fast as its means allow. "
Page 316 U. S. 541
But the instant legislation runs afoul of the equal protection
clause, though we give Oklahoma that large deference which the rule
of the foregoing cases requires. We are dealing here with
legislation which involves one of the basic civil rights of man.
Marriage and procreation are fundamental to the very existence and
survival of the race. The power to sterilize, if exercised, may
have subtle, far-reaching and devastating effects. In evil or
reckless hands, it can cause races or types which are inimical to
the dominant group to wither and disappear. There is no redemption
for the individual whom the law touches. Any experiment which the
State conducts is to his irreparable injury. He is forever deprived
of a basic liberty. We mention these matters not to reexamine the
scope of the police power of the States. We advert to them merely
in emphasis of our view that strict scrutiny of the classification
which a State makes in a sterilization law is essential, lest
unwittingly, or otherwise, invidious discriminations are made
against groups or types of individuals in violation of the
constitutional guaranty of just and equal laws. The guaranty of
"equal protection of the laws is a pledge of the protection of
equal laws." Yick Wo v. Hopkins, 118 U.
, 118 U. S. 369
When the law lays an unequal hand on those who have committed
intrinsically the same quality of offense and sterilizes one and
not the other, it has made as invidious a discrimination as if it
had selected a particular race or nationality for oppressive
treatment. Yick Wo v. Hopkins, supra; Gaines v. Canada,
305 U. S. 337
Sterilization of those who have thrice committed grand larceny,
with immunity for those who are embezzlers, is a clear, pointed,
unmistakable discrimination. Oklahoma makes no attempt to say that
he who commits larceny by trespass or trick or fraud has
biologically inheritable traits which he who commits embezzlement
lacks. Oklahoma's line between larceny by fraud and embezzlement is
determined, as we have noted, "with reference to the time when
Page 316 U. S. 542
fraudulent intent to convert the property to the taker's own
use" arises. Riley v. State, supra,
64 Okla.Cr. at p. 189,
78 P.2d p. 715. We have not the slightest basis for inferring that
that line has any significance in eugenics, nor that the
inheritability of criminal traits follows the neat legal
distinctions which the law has marked between those two offenses.
In terms of fines and imprisonment, the crimes of larceny and
embezzlement rate the same under the Oklahoma code. Only when it
comes to sterilization are the pains and penalties of the law
different. The equal protection clause would indeed be a formula of
empty words if such conspicuously artificial lines could be drawn.
See Smith v. Wayne Probate Judge,
231 Mich. 409, 420-421,
204 N.W. 40. In Buck v. Bell, supra,
the Virginia statute
was upheld though it applied only to feeble-minded persons in
institutions of the State. But it was pointed out that,
"so far as the operations enable those who otherwise must be
kept confined to be returned to the world, and thus open the asylum
to others, the equality aimed at will be more nearly reached."
274 U.S. p. 274 U. S. 208
Here there is no such saving feature. Embezzlers are forever free.
Those who steal or take in other ways are not. If such a
classification were permitted, the technical common law concept of
a "trespass" (Bishop, Criminal Law, 9th ed., vol. 1, §§ 566, 567)
based on distinctions which are "very largely dependent upon
history for explanation" (Holmes, The Common Law, p. 73) could
readily become a rule of human genetics.
It is true that the Act has a broad severability clause.
] But we will not
endeavor to determine whether its application
Page 316 U. S. 543
would solve the equal protection difficulty. The Supreme Court
of Oklahoma sustained the Act without reference to the severability
clause. We have therefore a situation where the Act, as construed
and applied to petitioner, is allowed to perpetuate the
discrimination which we have found to be fatal. Whether the
severability clause would be so applied as to remove this
particular constitutional objection is a question which may be more
appropriately left for adjudication by the Oklahoma court.
Dorchy v. Kansas, 264 U. S. 286
That is reemphasized here by our uncertainty as to what excision,
if any, would be made as a matter of Oklahoma law. Cf. Smith v.
Cahoon, 283 U. S. 553
is by no means clear whether, if an excision were made, this
particular constitutional difficulty might be solved by enlarging,
on the one hand, or contracting, on the other (cf.
Justice Brandeis dissenting, National Life Ins. Co. v. United
States, 277 U. S. 508
277 U. S.
-535) the class of criminals who might be
Healy, The Individual Delinquent (1915), pp. 188-200;
Sutherland, Criminology (1924), pp. 112-118, 621-622; Gillin,
Criminology and Penology (1926), c. IX; Popenoe, Sterilization and
Criminality, 53 Rep.Am.Bar Assoc. 575; Myerson et al.,
Eugenical Sterilization (1936), c. VIII; Landman, Human
Sterilization (1932), c. IX; Summary of the Report of the American
Neurological Association Committee for the Investigation of
Sterilization, 1 Am.Journ.Med.Jur. 253 (1938).
And see State v. Troutman,
50 Ida. 673, 299 P. 668;
Chamberlain, Eugenics in Legislatures and Courts, 15 Am.Bar
Assn.Journ. 165; Castle, The Law and Human Sterilization, 53
Rep.Am.Bar Assoc., 556, 572; 2 Bill of Rights Review 54.
"If any section, subsection, paragraph, sentence, clause or
phrase of this Act shall be declared unconstitutional, or void for
any other reason by any court of final jurisdiction, such fact
shall not in any manner invalidate or affect any other or the
remaining portions of this Act, but the same shall continue in full
force and effect. The Legislature hereby declares that it would
have passed this Act, and each section, subsection, paragraph,
sentence, clause or phrase thereof, irrespective of the fact that
any one or more other sections, sub-sections, paragraphs,
sentences, clauses or phrases be declared unconstitutional."
MR. CHIEF JUSTICE STONE, concurring:
I concur in the result, but I am not persuaded that we are aided
in reaching it by recourse to the equal protection clause.
If Oklahoma may resort generally to the sterilization of
criminals on the assumption that their propensities are
transmissible to future generations by inheritance, I seriously
doubt that the equal protection clause requires it to apply the
measure to all criminals in the first instance, or to none. See
Rosenthal v. New York, 226 U. S. 260
226 U. S.
Page 316 U. S. 544
Keokee Coke Co. v. Taylor, 234 U.
, 234 U. S. 227
Patsone v. Pennsylvania, 232 U. S. 138
232 U. S.
Moreover, if we must presume that the legislature knows -- what
science has been unable to ascertain -- that the criminal
tendencies of any class of habitual offenders are transmissible
regardless of the varying mental characteristics of its
individuals, I should suppose that we must likewise presume that
the legislature, in its wisdom, knows that the criminal tendencies
of some classes of offenders are more likely to be transmitted than
those of others. And so I think the real question we have to
consider is not one of equal protection, but whether the wholesale
condemnation of a class to such an invasion of personal liberty,
without opportunity to any individual to show that his is not the
type of case which would justify resort to it, satisfies the
demands of due process.
There are limits to the extent to which the presumption of
constitutionality can be pressed, especially where the liberty of
the person is concerned (see United States v. Carolene Products
Co., 304 U. S. 144
304 U. S. 152
n. 4) and where the presumption is resorted to only to dispense
with a procedure which the ordinary dictates of prudence would seem
to demand for the protection of the individual from arbitrary
action. Although petitioner here was given a hearing to ascertain
whether sterilization would be detrimental to his health, he was
given none to discover whether his criminal tendencies are of an
inheritable type. Undoubtedly, a state may, after appropriate
inquiry, constitutionally interfere with the personal liberty of
the individual to prevent the transmission by inheritance of his
socially injurious tendencies. Buck v. Bell, 274 U.
. But, until now, we have not been called upon to
say that it may do so without giving him a hearing and opportunity
to challenge the existence as to him of the only facts which could
justify so drastic a measure.
Page 316 U. S. 545
Science has found, and the law has recognized, that there are
certain types of mental deficiency associated with delinquency
which are inheritable. But the State does not contend -- nor can
there be any pretense -- that either common knowledge or
experience, or scientific investigation, *
assurance that the criminal tendencies of any class of habitual
offenders are universally, or even generally, inheritable. In such
circumstances, inquiry whether such is the fact in the case of any
particular individual cannot rightly be dispensed with. Whether the
procedure by which a statute carries its mandate into execution
satisfies due process is a matter of judicial cognizance. A law
which condemns, without hearing, all the individuals of a class to
so harsh a measure as the present because some or even many merit
condemnation is lacking in the first principles of due process.
Morrison v. California, 291 U. S. 82
291 U. S. 90
and cases cited; Taylor v. Georgia, 315 U. S.
. And so, while the state may protect itself from the
demonstrably inheritable tendencies of the individual which are
injurious to society, the most elementary notions of due process
would seem to require it to take appropriate steps to safeguard the
liberty of the individual by affording him, before he is condemned
to an irreparable injury in his person, some opportunity to show
that he is without such inheritable tendencies. The state is called
on to sacrifice no permissible end when it is required to reach its
objective by a reasonable and just procedure adequate to safeguard
rights of the individual which concededly the Constitution
Page 316 U. S. 546
Eugenical Sterilization, A Report of the
Committee of the American Neurological Association (1936),
pp.150-52; Myerson, Summary of the Report, 1 American Journal of
Medical Jurisprudence 253; Popenoe, Sterilization and Criminality,
53 American Bar Assn. Reports 575; Jennings, Eugenics, 5
Encyclopedia of the Social Sciences 617, 6221; Montagu, The
Biologist Looks at Crime, 217 Annals of American Academy of
Political and Social Science 46.
MR JUSTICE JACKSON concurring:
I join the CHIEF JUSTICE in holding that the hearings provided
are too limited in the context of the present Act to afford due
process of law. I also agree with the opinion of MR. JUSTICE
DOUGLAS that the scheme of classification set forth in the Act
denies equal protection of the law. I disagree with the opinion of
each insofar as it rejects or minimizes the grounds taken by the
Perhaps to employ a broad and loose scheme of classification
would be permissible if accompanied by the individual hearings
indicated by the CHIEF JUSTICE. On the other hand, narrow
classification with reference to the end to be accomplished by the
Act might justify limiting individual hearings to the issue whether
the individual belonged to a class so defined. Since this Act does
not present these questions, I reserve judgment on them.
I also think the present plan to sterilize the individual in
pursuit of a eugenic plan to eliminate from the race
characteristics that are only vaguely identified and which, in our
present state of knowledge, are uncertain as to transmissibility
presents other constitutional questions of gravity. This Court has
sustained such an experiment with respect to an imbecile, a person
with definite and observable characteristics, where the condition
had persisted through three generations and afforded grounds for
the belief that it was transmissible, and would continue to
manifest itself in generations to come. Buck v. Bell,
274 U. S. 200
There are limits to the extent to which a legislatively
represented majority may conduct biological experiments at the
expense of the dignity and personality and natural powers of a
minority -- even those who have been guilty of what the majority
define as crimes. But this Act falls down before reaching this
problem, which I mention only to
Page 316 U. S. 547
avoid the implication that such a question may not exist because
not discussed. On it, I would also reserve judgment.