Famous legal battles offer historians a shortcut for studying the currents and changes of American history: Plessy v Ferguson (1896) upheld racial segregation until Brown v Board of Education (1954) overturned it, while the Sacco and Vanzetti trials (1921), the Scottsboro trials (1931-1937) and the Rosenbergs' trials (1951) trace the threat to civil liberties when social and political issues influence legal decisions. As Victoria Nourse, a professor of law, shows, such history is also made in forgotten legal battles fought by the despised and outcast against popular legislative reforms. In Reckless Hands tells the untold story behind Skinner v Oklahoma, a battle by McAlester prison convicts against Oklahoma's Habitual Criminal Sterilisation Act of 1935, which legalised the forcible sterilisation of Oklahoma's criminals.
Probably the most famous "Okie" inmate of McAlester prison remains the fictional Tom Joad, hero of John Steinbeck's The Grapes of Wrath (1939), who learns to read and write there while serving time for homicide. Using newspaper reports, court documents and prison archives, Nourse pieces together the real story of similar "forgotten men" who formed a "Brain Trust" to educate themselves and fellow inmates with enough legal and scientific information to fight sterilisation over the decade, finally getting the law overturned by the US Supreme Court in 1942.
While eugenic thought had been popular throughout the first part of the century, the Great Depression helped to establish it within broad concerns over public health and social stability. The extent of support for eugenics was indicated in a 1937 article in the The Washington Post that declared that 84 per cent of the nation favoured "sterilisation of the criminal and hopelessly insane". While Roosevelt's welfare reforms provided a bulwark against hardship, Nourse shows that at the same time a Depression-fuelled crime wave led politicians to declare a "war on crime" and create a climate in which personal liberties were subsumed by ideals of general welfare for the common good.
Nourse skilfully weaves the story of the developing legislative campaign around a description of the sociopolitical context that made sterilisation of criminals seem acceptable. She encapsulates this history in a lively and compelling narrative style that shifts from hard-boiled detective fiction to defence attorney presenting evidence. Courtroom dialogue and newspaper reports of jailbreaks and prison riots enliven what turns out to be little more than a couple of legal hearings and a long wait for a final decision. By the time the case came before the Supreme Court, only one of the original Brain Trust remained at McAlester and the plaintiff Jack Skinner had served his term (although if the law had been upheld he would still have been forced to undergo sterilisation). In the end it was probably international events that held the biggest sway in the final decision: by 1942 America was at war with a Nazi Germany whose eugenic campaigns were hugely discredited and condemned.
The Supreme Court decision was a cause for celebration among McAlester inmates, who had raised funds and campaigned for their manhood in the local media. The fact that the case had reached the judges in Washington was indeed startling, but its success was partly due to the fact that the decision did not threaten existing eugenic legislation operating in asylums and state institutions. Such places went on to become the locus of sterilisations performed on disproportionately black and female inmates as part of routine federal health and welfare programmes into the 1970s. So to Nourse the true significance of Skinner's victory was less as a challenge to eugenics than as the start of a shift in legal definitions of individual rights that began the road towards legislation relating to gay rights and abortion rights, such as the landmark 1973 Roe v Wade decision.
In a provocative opening sentence, Nourse describes eugenics as an "almost irresistible intellectual seduction". The extent of this seduction in the 1930s has not always been fully addressed. Her fascinating account adds to more recent attempts to unveil this hidden history, while the constitutional drama she unfolds out of the story of "ordinary men involved in an extraordinary legal case" highlights further the history of inequality in the US and the dangers of turning scientific belief into political actions. Nourse thereby takes us one step closer to avoiding the same intellectual seduction in our own time.
In Reckless Hands: Skinner v Oklahoma and the Near-Triumph of American Eugenics
By Victoria F. Nourse
W.W. Norton, 256pp, £15.99
Published 5 September 2008