Let us stipulate that Jessie Lee Herald is not a paragon of self-restraint. Herald, age 27, lately on trial for child endangerment and other charges in northern Virginia, has seven children by six women — probably. Herald’s uncle admits that his nephew likely does not know the full extent of his progeny. Still, irresponsible — and virile — as he may be, the plea deal he just reached with Shenandoah County prosecutors should raise an eyebrow: In exchange for a reduced prison term, Herald has agreed to get a vasectomy.
The United States, as the Associated Press notes, has a “dark history of forced sterilization,” in which Virginia took a leading role. In 1927, the U.S. Supreme Court upheld a Virginia statute permitting compulsory sterilization of “inmates of institutions supported by the State who shall be found to be afflicted with an hereditary form of insanity or imbecility.” Carrie Buck, 18 years old at the time of trial, “the daughter of a feeble-minded white woman in the same institution, and the mother of an illegitimate feeble-minded child,” in Justice Oliver Wendell Holmes’s summary description, was duly sterilized. Although compulsory sterilization had become largely taboo by the end of the 1970s, Buck v. Bell has never been overturned.
Herald’s case, of course, is different. His vasectomy, far from being the state-imposed sentence of a “mental deficient” with “hereditary idiocy,” is a bargaining chip accepted with full freedom and in full knowledge. Herald has the option, and he does not mind swapping his fertility for prison time. No harm, no foul, surely.
The problem, predictably enough, is the government. If Herald wants to undergo the procedure for his own purposes, best wishes. Half a million men make that decision every year. What is perverse is the local prosecutors’ incentivizing sterilization by tying it to a reduced prison sentence. And that’s before looking closely at the rationale.
In his decision for the 8–1 majority in Buck v. Bell, Holmes wrote:
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, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. 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. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.
While Holmes conveniently neglected to consider the disturbing philosophical premises on which his argument is based, perhaps we can extend him at least this grace: Like much bad law, his opinion is in large part the result of bad science. If you believe that every imperfection admits of being snipped and sliced away, the impulse to snip off a bloodline is at least understandable, if not ultimately defensible. But the simplistic biology of the 20th-century eugenics movement has been superseded. The apple may not fall far from the tree, but only imbeciles still promote the notion of “hereditary imbecility.”
Well, imbeciles and eugenicists. A more sinister reading of Holmes and his ilk suggests that, for them, the power’s the thing, whatever the science. There exist in a society the “manifestly unfit”; eliminate them, and the whole stock of society goes up.
Shenandoah County prosecutors have both channeled and updated this latter Holmes. Theirs is not a case of concern for the public good predicated on scientific premises; it is blatant social engineering, a local prosecutor’s preference for more of this person and less of that one — and, in 21st-century fashion, all purportedly done “for the children”: “[Herald] needs to be able to support the children he already has when he gets out,” assistant prosecutor Ilona White told the Associated Press. Agreed — but removing his ability to procreate has nothing whatsoever to do with that goal. Is a bad father of nine worse than a bad father of seven? Only in the eyes of the state, for whom additional children of Jessie Lee Herald and those like him are apparently nothing more than a potential drain on the treasury. Herald’s sterilization is not in the interest of Herald or his in potentia offspring; it is in the interest of the state’s bank account.
What is more, by offering sterilization as an alternative to prison time, the prosecutors have dangerously expanded their own power. They have moved from seeking a lawful punishment that fits the crime to designating a heretofore unknown crime: fatherhood.
Yet exactly that move lies at the bottom of all eugenics. Procreation is the problem, and sterilization is the solution, offered by those who know infallibly who should be allowed to reproduce and who should not. But procreation is not a crime. It may be, as it certainly is for Jessie Lee Herald, irresponsible, uncaring, or unwise, but it is not criminal. What power will be left to us, though, if we allow the government to punish it as such?
— Ian Tuttle is a William F. Buckley Jr. journalism fellow at the National Review Institute.