Wagenen.Appendix.467
impossible for him to have progeny. If it could be said that such a
punishment would only be inflicted in the case of confirmed criminals, there
would be strong reasons, founded on considerations of public welfare,
which would justify its imposition. The danger, however, is that it might
be inflicted upon one who is not an habitual criminal, who might have been
a victim of circumstances, and who could be reformed. To deprive such an
individual of all hope of progeny, would approach closely to the line of
cruel and unusual punishment. There are cases where juvenile offenders
have been rendered habitual criminals who subsequently became exemplary
citizens. It is true that these cases are infrequent, and yet the very fact
that they exist would require the exercise of extreme caution in determining
whether such a punishment is constitutional.”
“ Although not entirely certain as to this phase of the case, I have no
doubt the imposition of such a penalty by a commission or a state board,
or by any tribunal other than a court which is to determine the penailty for
the offence of which one charged with crime has been convicted, would be
unconstitutional. The determination that such an operation shall be per
formed necessarily involves the infliction of a penalty. Unless justified by
a conviction for crime, it would be a wanton and unauthorized act and an
unwarranted deprivation of the liberty of the citizen. In order to justify
it, the person upon whom the operation is to be performed has, therefore,
the right to insist upon his right to due process of law. That right is
withheld if vasectomy is directed, not by the court which imposes the
penalty for the crime, but by a board of commission, which acts upon its
own initiative, or which, under a general provision of law, undertakes to
determine whether or not the operation shall 1 be performed on a specific
individual. ”
“ So in regard to the legislation which you now have under consideration,
it is my firm opinion that the court which imposes the sentence upon the
prisoner can alone impose the penalty of vasectomy, the prisoner being first
accorded an opportunity to be heard by the court on the question as to
whether or not such punishment shall be inflicted.”
“ I fear that the public is not, as yet, prepared to deal with this
problem; it requires education on the subject. I cannot, however, refrain
from expressing the general opinion that the movement is one which is
based on sound considerations. The difficulty is, however, in adopting
proper safeguards to adequately protect those who are not hopelessly
confirmed criminals, degenerates, or defectives.”
4.—Sterilization in Indiana and California.
It appears that there have been many more cases of sterilization of
different types within institutions, for purely medical or for a combination
of medical and Eugenic reasons, usually with the consent of the parents or
guardians, without specific legislative authority, than have been performed
under the statutes. Thus, in some of the institutions of Pennsylvania. hh 2
