GateHouse: Buck v. Bell: The high court’s low point

Matthew T. Mangino

GateHouse Media

January 17, 2020

There is a scene in the American film classic “Judgment at Nuremberg” where defense attorney Hans Rolfe, played by Maximilian Schell, is cross-examining a Nazi judge about the Nazi sterilization of undesirable women. Schell cites a case where the high court of another country authorized the sterilization of a “feeble-minded” woman who was the daughter of a “feeble-minded” mother. The court opinion concluded, “Three generations of imbeciles are enough.”

Schell dramatically concluded his cross-examination by revealing that the author of the opinion was the vaunted American jurist Oliver Wendell Holmes. “Judgement at Nuremberg” was a fictional account of the war crime trials of German judges. However, Justice Holmes’ opinion in Buck v. Bell - which upheld the sterilization of women in the state of Virginia - was indeed cited in Nuremberg.

During the trial of German SS Officer Otto Hofmann, his defense cited Buck v. Bell as proof that a so-called enlightened country like the U.S. was also involved in the “science” of human improvement through controlled breeding. In the U.S. we called it eugenics, in Nazi Germany it was referred to as creating the master race.

Carrie Buck was born and raised in Charlottesville, Virginia. She became pregnant at age 16. Her foster parents had her institutionalized as a “feeble-minded moral delinquent,” despite her claims that she had been assaulted by their nephew.

When she gave birth, her child was adopted by her foster parents. Buck was sent to the Virginia State Colony for Epileptics and Feeble-minded in Lynchburg. Buck’s mother was already a resident there.

Just prior to Buck’s commitment, Virginia enacted a new law authorizing sterilization of, among others, the feeble-minded and the socially inadequate. With three generations available for examination, the colony set out to prove that the Buck women were defective. They sought to have Carrie Buck sterilized under the new law.

The Supreme Court supported Buck’s sterilization by a vote of 8 to 1. Holmes’ 1927 opinion is remembered as containing some of the most infamous language ever delivered by the high court.

According to the USA TODAY, Carrie Buck was the first victim of the 1924 sterilization law. As a result, about 8,300 Virginians were involuntarily sterilized. The law was repealed in 1974, but Buck v. Bell has never been overturned.

State laws permitting sterilization of individuals deemed unfit to reproduce - most commonly institutionalized persons with mental illness, or even conditions such as epilepsy - were common in the first half of the 20th century. According to the USA TODAY, more than 65,000 people were sterilized under such laws, which were enacted in more than 30 states.

In 2010, Paul Lombardo, a law professor at Georgia State University took a close look at the plight of Carrie Buck and other women subject to draconian sterilization regulations. His book, Three Generations, No Imbeciles: Eugenics, The Supreme Court, and Buck V. Bell revealed that the Buck women were not feeble-minded imbeciles.

Through his research, Lombardo found report cards for Carrie and her daughter Vivian. Buck had passed each year with “very good” marks. Vivian had made the honor roll. There was nothing to suggest any mental deficiency in either of them. Unfortunately, Vivian died at age 8.

It is astonishing that the United State was, not so long ago, a leader in eugenics. Leading medical professionals, legal scholars and lawmakers subscribed to a theory that espoused terminating the reproductive rights of the mentally ill, intellectually disabled or other “undesirables.”

Even more appalling, Holmes, a civil war hero himself, would in the wake of the horrors of World War I, introduce his argument in support of sterilization in the following manner, “We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices.“
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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GateHouse: The shame of forced sterilization continues

Matthew T. Mangino

GateHouse Media

February 10, 2018

A federal judge in Oklahoma once told a woman involved in a counterfeiting ring that he would consider — as part of her background, character and conduct — whether she would undergo a “voluntary” sterilization, or as he put it she was “rendered incapable of procreation.”

This issue didn’t come up in some dusty old courtroom in 1917 — 10 years after Oklahoma became a state. No sir, it came up in 2017. The woman was sterilized in November and is scheduled to be sentenced this week.

The stink of forced sterilization permeated the first part of the 20th Century.

In 1907, Indiana became the first state to enact sterilization legislation, followed closely by California and soon a majority of states.

At the time, sterilization was about two things — Eugenics, trying to escape the imperfections of heredity and punishing people for criminal conduct. Sterilization rates across the country were relatively low, until 1927 and the U.S. Supreme Court decision in Buck v. Bell.

Buck v. Bell was not the high-water mark for U.S. Supreme Court jurisprudence and was certainly not the jewel of the hundreds of opinions written by long time justice, Oliver Wendell Holmes Jr.

In fact, the tragedy of Buck v. Bell was vividly portrayed by Maximillian Schnell in his Academy Award-winning performance as an attorney representing a judge at the Nuremberg war trials. Schnell read from a passage in Buck v. Bell and then slowly revealed that it was written by “Oliver ... Wendell ... Holmes.”

What Holmes wrote in 1927 was: “It is better for all the world, if instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind ... Three generations of imbeciles are enough.”

That decision and the work of eugenicist Harry H. Laughlin were the framework for the Nazi sterilization program.

In 1933, the Nazi’s enacted a law that provided for compulsory sterilization of any person who, according to the opinion of a “Genetic Health Court,” suffered from a genetic disorder. Under Nazi rule, over 400,000 people were sterilized against their will.

After World War II, public opinion toward eugenics and sterilization programs soured in light of their connection with the Nazi atrocities.

In this county, the practice of forced sterilization has stopped, or so we thought. If you think a so-called “voluntary” sterilization was not forced, think again. Imagine a judge tells you “if you do this, (sterilization) I might act favorably toward you” — would you feel compelled to do it?

Some states feel the shame. In 2013, North Carolina announced that it would spend $10 million to compensate men and women who were sterilized in the state’s eugenics program. North Carolina sterilized about 7,600 “mentally unfit” people from 1929 to 1974.

Unfortunately, the quest to sterilize wrongdoers continues. In the early and middle part of the 20th century, sterilization was used to thwart those in institutions for the “Feebleminded.” Today, the targets are men and women in prison.

In 2015, a criminal case in Tennessee involving a mentally ill woman and a controversial plea bargain ignited outrage over the proposed use of sterilizations as a bargaining chip in plea negotiations.

The Tennessean reported that a 36-year-old woman had been charged with neglect after the death of her 5-day-old baby. The prosecutor would not go forward with a plea bargain to keep her out of prison unless she agreed to undergo a sterilization procedure.

After a buzz of media attention, the DA withdrew the plea.

In an interesting twist, the assistant U.S. Attorney in the pending Oklahoma case said the defendant “has a fundamental constitutional right to procreate ... (and her) decision to have additional children ... is irrelevant to determining a sentence.”

Such an ugly time in our history should not be so easily forgotten or set aside by the very people we expect to protect the helpless and downtrodden.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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