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By Root 1902 0

would engulf the intelligent elites. Who were these new “dangerous classes”? They were “tramps, poor farmers, slum dwellers, unskilled laborers, Negroes, and immigrants.”50 And the way they reproduced! The mentally incompetent had “astonishing fecundity.” And when “a criminal father” begot a child, it was a “foregone conclusion” that the child was “predestined to criminality.”51 Many contemporaries lumped together the feebleminded and the criminal class. Some members of the army of the “degenerate,” as one writer put it, were “entirely helpless—slobbering idiots or hopeless imbeciles”; others, “the criminal insane, sexual perverts and confirmed drug addicts,” were “dangerous to the public welfare.” Since most of the “causes of social inadequacy” were “largely and positively the results of heredity,” and since “most types of degenerates are entirely potent sexually and many are over sexed,” responding to “the purely animal instincts,” these creatures should be “rendered incapable of reproducing.”52

The gospel of eugenics affected criminal justice even in its ordinary course. It fed the panic over victimless crime, since it accentuated the social dangers of “vice” and “debauchery.” It affected sentencing and the way convicted criminals were judged: woe unto him whose family background revealed signs of weakness or degeneracy.cm Any such person who wanted probation, or a lighter sentence, was apt to have his hopes dashed.

To be sure, not everybody went along with the mania for eugenics. In 1918, a federal district judge declared unconstitutional the Nevada law on sterilization. The law gave courts power to order an “operation ... for the prevention of procreation” for defendants who were “habitual criminals” or were guilty “of carnal abuse of a female person under the age of ten years, or of rape.”54 The court called vasectomy “mutilation,” a “brand of infamy,” “ignominious and degrading.”55 The Indiana law ran afoul of the state’s supreme court in 1921. The prisoner, said the court, had no “opportunity to cross-examine the experts who decide that this operation should be performed upon him”; he had no “chance to controvert the scientific question” whether he was a member of the class “designated” in the statute. It was “very plain” that such a law denied “due process.”56 Indiana, nothing daunted, passed new laws in 1927 and 1931, setting up new procedures for sterilizing the “feebleminded.” 57

The Supreme Court did not share the skepticism of state courts and lower federal courts. It put its imprimatur on the eugenics movement, in the famous, or notorious, case of Buck v. Bell, decided in 1927.58 This was not a criminal case, but it was directly relevant to the question of sterilizing prisoners. The case turned on the fate of Carrie Buck, described as a “feeble minded white woman,” eighteen years old, in the State Colony for Epileptics and Feeble Minded in Virginia. Carrie was supposedly “the daughter of a feeble minded mother in the same institution, and the mother of an illegitimate feeble minded child.” The question is whether she was to be sterilized.

The decision was written by Oliver Wendell Holmes, Jr. He gave the law a ringing endorsement. It is better for society not to wait “to execute degenerate offspring for crime” or “let them starve for their imbecility”; instead, society should prevent those who are “manifestly unfit” from “continuing their kind.” If the state can order vaccination, it can order “cutting the Fallopian tubes.... Three generations of imbeciles are enough.”cn

Down the years, these words have more and more given off a cold, hollow, callous echo. But the attitudes that Holmes expressed were a long time dying. There was a burning faith in glandular tinkering. Leo Stanley, chief surgeon at San Quentin, was a devotee of “testicular implantations”; the prisoners were, of course, a fine group of available guinea pigs. The staff of San Quentin performed over ten thousand “implantations” between 1918 and 1940, with excellent results. After all, “goldfish, fed on a diet of ground testicular substance