Ethics Quiz: Virginia’s Forced Vasectomy

"Well, they can't all be "shouting fire in a crowded theater," Oliver. So you had an off happens.

“Well, they can’t all be “shouting fire in a crowded theater,” Oliver. So you had an off day….it happens.

One of the skeletons in the Old Dominion State’s closet is the 1924 “Virginia Eugenical Sterilization Act,” a  law allowing the sterilization of citizens adjudged to be in a long line of mentally deficient idiots. The law was upheld in the infamous  1927 Supreme Court opinion in Buck v. Bell, in which the great Justice Oliver Wendell Holmes, to his undying shame, wrote,

“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.”

So approved, Virginia’s eugenics law lasted into the 1970s, allowing the state to sterilize more than 7,000 people in mental institutions. The law was repealed in 1979, and victims are seeking reparations. Now the ghost of that law is hovering over the resolution of a current case.

The only thing Virginian Jessie Lee Herald has done on his 27 years more than get in trouble with the law is have children: so far he has had seven (with six mothers) and his current wife says she wants more. He recently fled the scene of a car crash with his injured 3-year-old son. Herald pleaded guilty to felony child endangerment, felony hit-and-run, and misdemeanor driving on a suspended license. Investigators who went to his home found his child to have been neglected, with, among other things, shards of glass in his diapers.

A Shenandoah County prosecutor, Illona White, proposed a plea deal that would reduce Herald’s prison sentence to just four years: he would have to agree to a vasectomy. He took the deal, which also requires him to pay for the operation.

Your Ethics Alarms Ethics Quiz of the Day:

 Is it ethical for a state to make a convicted felon choose between prison time and sterilization?

The Washington Post, in a searing editorial, stated that it was unethical in no uncertain terms, calling it “barbarous” and opining,

“This is outrageous. Mr. Herald is not a sex offender, nor is there a shred of evidence that his criminal behavior derives from the fact that he has fathered seven children. …[There] may be evidence of negligence — hence the charge of child endangerment — but it does not justify depriving Mr. Herald of the ability to father future children. His wife, who wants to have more children with Mr. Herald, said he is a good husband and father. Even if he weren’t, by what right does the state of Virginia wield the power to determine who may have children? Mr. Herald accepted the deal “voluntarily” but only because of the state’s coercion…”

The deal is almost certainly legal, because Herald was given a choice. Judges have wide, indeed ridiculously wide, latitude in concocting sentences. Still, the question remains, is this fair and right, or as the Post suggests, a step down the slippery slope that led to Buck v. Bell?

I am not ready to make a call on this one. Since neglected children often become the responsibility of taxpayers, the argument that the state has no legitimate interest in regulating profligate reproduction by irresponsible parents falls flat. Is taking away someone’s ability to have more children (after seven) really a greater intrusion on his freedom than locking him up? Yet this sentence seems to cross lines that government should cross with caution, if at all. I’m not sorry that Herald won’t be inflicting more of his line on us. I am uneasy, however, with the way this result came about.

Your analysis and enlightenment are solicited.


Sources: Washington Post 1, 2

46 thoughts on “Ethics Quiz: Virginia’s Forced Vasectomy

  1. I had to dredge a bit into the past but I knew this sounded familiar – – In the linked earlier article, a woman was given the choice between jail time, or a period house arrest / probation, the latter on the condition of not having any more children for the probation period. Your response to “Is it Ethical?” was “I don’t think so”. Have you grown less sure on this matter since then, or are there particular differences between these cases that have resulted in your different judgements?

    • No. “I don’t think so” and “I’m not sure”—my current answer—are pretty close. As you know, when I’m sure, I say so. That earlier sentence was upheld, by the way. To the extent that there is a difference, it would be that the number of children an irresponsible guy like him can inflict on society is virtually limitless. My inclination is to oppose the sentences in both cases. But in both cases, I see the other side.

      • I see, I interpreted “I don’t think so” more strongly than I should have, perhaps because I found the rest of the earlier article sounded more… forcefully written (I think is the words I’m looking for). Thanks for the clarification.

    • That’s pretty funny, since I quoted the Post to illustrate its position, and characterized it only using its own words. This is one of your best off the wall complaints yet. But perhaps I am mischaracterizing your position?

      • I think the criticism could be that you asked if it was ethical and you said that the Post says it was.
        I think we have a typo.

        • Ha! That was it, you are right. The original post had a different question: “Is it unethical for a prosecutor to make such a plea deal?” I changed it after it was posted, and neglected to change the next sentence to match. It was obviously a typo. But that’s P.M.—he lives for “gotchas.”

      • Yes, you are mischaracterising my position, and no you did not “characterize… it only using its own words”, but rather completely misrepresented it with some of your own words. It’s probably just a brain fart, but it was important enough to draw to your attention, so I tried to do that using a method you prefer rather than using methods I have found effective. It didn’t work; rather than going and seeing, you just fired a broadside back.

        This is why I normally use the “hit people over the head” method to get a message of this sort across, without any intention of being snarky, even if I then get accused of just that with a completely wrong claim that I didn’t have to do that (yes, I do have to do that, to have a decent chance of success). The polite method not only does not work, it also gets me given snark – as you have just done.

        Let me try it that that other way, not in any spirit of offence or retaliation but for clarification and for purposes of illustration.

        Do you really know what you have just written? You have just claimed that the “Washington Post, in a searing editorial, stated … in no uncertain terms” that it was “ethical for a state to make a convicted felon choose between prison time and sterilization”. (That’s used in just the same way and for the same purpose as “do you know what a cockney is?” in a comment you also complained about.)

        Feel free to tell me a method of telling you things you have blocked out that isn’t blunt but is effective.

        • It was obviously a typo, which I just explained, and the correct way to note it would be: “There is a typo.” Given the quote, it was obviously not an intentional characterization. Why would anyone write what I wrote and quote what I quoted and intentionally say that the Post pronounced the plea deal ethical? Talk about an Occam’s Razor slam dunk.

          Why are you like this?

  2. It strikes me that we’d need to know what the other offer would be–the no-vasectomy version, in other words. If there really was coercion–take this deal or serve 30 years of hard time–that’s a problem. If we’re talking about knocking a couple of years off the sentence in exchange for agreeing to a vasectomy, I’m OK with it, as a choice (but not as the only option).

    I don’t want to push this analogy too far, but those accused of animal cruelty often have a stipulation that they may not own animals as part of sentencing agreements. This is sort of the same idea: you won’t mistreat your kids if you don’t have any. (I repeat: I’m not pushing this correlation too far.)

    I think it’s a close call, either way, with a fair amount of “ick” factor as part of the mix.

  3. I don’t like it. They are doing indirectly what they could not do directly. Most conditions of a plea are not like that (annoying as they may be).

    Would we say that it is okay to amputate the hand of a thief (in a completely sterile medical fashion), in lieu of jail time, so long as it is part of a voluntary plea deal?

    Under the 8th Amendment, I doubt it.


  4. Seems definitely unethical to me. In this case, Jessie Lee Herald is white and the prosecutor is white but what would happen if a white prosecutor gave the same deal to a black man? What if a male prosecutor offered this option to a woman? And as far as the punishment fitting the crime…this comes nowhere close. This man cannot be punished for expected negligence in the future. I’m not sure what his original sentence would have been but I know the chances of him getting anyone pregnant during his time in prison (as long as he doesn’t get those “special time visits”) will drastically be decreased.

  5. Also, why provide an option that doesn’t even do what it is intended to do? Herald has one year after his release from prison to get this procedure done. After one year, chances are this guy could have many more children and more on the way. I think this prosecutor is just trying to make a name for herself and using the tide of emotion and mob mentality that “some people shouldn’t be allowed to have kids and we should be able to decide who those people are” to make herself look tough on crime. I think it’s pretty disgusting.

  6. I’m going to ignore the specifics of this case because the principles involved are far-reaching in their implications. My opinion is alien and probably not very popular, but if anyone can identify problems with it, I would appreciate it if you would tell me what those problems are. I don’t want to hold an opinion that doesn’t make sense.

    With that in mind, it is not obvious to me that humans have a “right” to create infant conscious beings just because they naturally have the physical capabilities to do so. This matter is not like property rights; creating and owning a conscious being is not the same thing as creating and owning a table. Conscious beings, I contend, do have a right to be raised in an environment that nurtures their emotional and cognitive development. That is to say, the least we can do is avoid creating children unless we are prepared to help whatever children we do create grow into mature conscious beings. Raising a child is a large responsibility which calls for people with patience, communication skills, and a whole host of other good character traits that are not abundantly common. I consider it outright unethical to create a new conscious being if one is not prepared to nurture it into a mature individual.

    There are a number of problems preventing this ideal from being implemented in legislation, though. All of them stem from the fact that most humans in this world are not mature conscious beings. The most salient one, though, is that the vast majority of current human society in any given region (read: the government and voters) cannot be trusted to judge others’ parenting qualifications on the relevant character traits while ignoring irrelevant ones. That majority actually includes myself for once; I consider many religions to be tied to irresponsibly low levels of critical thinking, but I accept that religious people can be excellent parents even so. I do not feel I am qualified to assess character suitable for parenting at this time, especially because having a child may change a human’s behavior drastically.

    My conclusion is that it would actually be easier, surprisingly enough, to promote maturity and responsibility in the human population at large and let that carry over into procreation and child-rearing, rather than attempt to regulate who may and may not raise the next generation. People in a healthy community should be able to make responsible decisions about whether to have children, use peer pressure to keep other parents responsible while leaving them their autonomy, and contribute their own unique nurturing skills to other parents’ children when called upon. Yes, it is unethical to have children you are not prepared to devote a certain amount of time and effort to raising, but making laws about that is realistically impossible. Rather than making things right by the brute force of law, which has its place, we should apply the finesse of culture to promote good values. After all, law flails and lashes without culture backing it up.

    Anyone see something I missed?

    • Only this: “I consider it outright unethical to create a new conscious being if one is not prepared to nurture it into a mature individual.” and “Procreation is a natural right, like life, liberty and the pursuit of happiness” are not mutually exclusive. They are both true.

      There cannot be any human act more subsumed by the term “natural right” than procreation. Animals have that right. A state’s intrusion on that right is the epitome of abuse of power and autonomy.

      All rights can be engaged in irresponsibly, recklessly, harmfully and unethically, this one perhaps above all. Nonetheless, it must be in the category of human conduct where the government cannot interfere, except to punish the wrongful indulgence of it when it harms others in a tangible way—including the children themselves.

      • Ah, so your point as I understand it is that the government should not interfere at the beginning not merely because it would almost certainly make things worse, but more importantly because punishing people when they exercise their natural rights (abilities) irresponsibly rather than restricting their exercise of that right in the first place would make for a healthier society, irrespective of the competence of the government.

        That makes sense to me, because the alternative is forcing people to get permits for everything. I’d rather people be presumed responsible until proven irresponsible. My mission, then, is to make a society where people in general are indeed reasonably responsible so that this system works. The alternative is a world with warning labels on toothpicks.

        Thanks for pointing that out, Jack; that’s a subtle but important distinction that I overlooked.

        • Regarding this case specifically, there is a great deal of precedent for reducing sentences in exchange for the guilty party agreeing to perform some action that makes it less likely that they will offend again, such as entering a rehabilitation program. The idea is that the original sentence was entirely justified, but the show of good faith by the guilty party is a mitigating factor in sentencing after the fact, rather being a mitigating factor during the perpetration of the act. I don’t see anything wrong with offering the choice to voluntarily curtain one’s ability to misuse one’s natural rights again in exchange for a lessened punishment, assuming that the original punishment was warranted.

          • Well, if the goal is to defer future offenses, the more direct approach would be to have him agree to terminate all of his parental rights to his current children, because, for all we know, he was not planning to have anymore.

            Would you favor that? I know I do not want the state to have that power.


            • Jut~
              Actually, his wife said she didn’t think it was fair because they were planning on having more kids. Plus, I don’t know to what degree a guy like this ever “plans” to have kids. With that said…I still don’t think it is an ethical option. It’s the whole ick factor.

            • Well, the state does remove children from custody of parents who have been established to be dangerous. I don’t know if that applies to this particular case, and I don’t trust the current government to do it well, but I don’t consider it an inherently unethical option. I think it might be better to have the parent go through basic child care classes or something similar if it appears to be a case of incompetence rather than malice on the part of the parent, such as perhaps in this case. In cases where a parent or parents cannot care for their child, all options are less than ideal from the start, and it is difficult to determine which will most likely have the “best” outcome.

              I do want the option of rescuing children from families that are “obviously” dangerous, but the rest of the situations and the various approaches to them come down to finesse and judgment quandaries, and very few organizations have finesse in this world and very few people are willing to shoulder the responsibility of those quandaries because others will not forgive the unavoidable mistakes which can only be seen as such in retrospect.

  7. It is morally wrong for the State to interfere with procreation — but we can’t deny that many of our ills would be cured if we had fewer stupid and negligent people having children. I’ve often thought that the State/Feds should offer significant tax breaks to people (18 and older obviously) who do NOT procreate. That extra $1,000 or so a year would stop — or at least delay — many people from having kids and it would be a drop in the bucket compared to what we are paying in tax dollars to support the welfare state. Once you have a kid though, your free money goes away.

      • Exactly. And your tax breaks permanently go away if you DO have children. I think this would encourage people to wait to have children until they are financially ready. And it would encourage people to have the right number of children according to their family’s income.

        • The problem is that we would also be giving an incentive for citizens whom we should want to have children, and more of them, not to. Meanwhile, our policies encourage low-skilled, uneducated citizens of other countries to come here illegally and have as many children as possible.

          Something is amiss.

          • I’m not sure I agree with your first point. I think the program would delay young people from having kids, but not stop them entirely. So, you would still have the same good people having kids, they would just wait a few more years (years where education and/or employment could be further stabilized) before having them.

            Re immigration – I don’t pretend to have a solution,

            • Not stop all of them entirely. The smarter ones will tend to make a cost benefit analysis, and are the ones most likely to just forgo kids entirely.

              I have the immigration solution: It’s simple. 1) Make all current illegals eligible for full citizenship pending their taking reasonable steps. 2) Put a hard deadline on it. 3) Round up and deport every single one who doesn’t bother to meet the deadline, and his or her kids 4) Eliminate the guarantee of automatic citizenship when children are born to parents who are here illegally 5) Make the border impermeable, whatever it takes, whatever it costs. Barbed wire, electrified fences, ditches, moats, towers, guns—just do it. 6) Establish a guest worker program that is monitored and enforced.

              • 1) people entering the country already are eligible if they take the right steps.

                4) yes. Birth based citizenship is is clumsy. But if we must have it, parents must be legal immigrants. What of the children after parents are legalized? They get it by virtue of parentage?

                5) cutting off the legal and economic incentives would do tons for this effort.

            • I don’t like your solution — it just isn’t possible. Our borders are too large both North and South. Then you have the thousands of miles of coastline. In any event, haven’t we learned from history that building walls around a country’s borders signals its decline?

              Heck, annexing all of Central and South America (some countries, like Brazil and Argentina could be exempt) would be cheaper. And, it would become every Republican’s dream as we would have to eliminate all social programs.

              • The border could be impenetrable *enough* if we cut off the incentivization of invasion (that’s what it is). That means quit granting citizenship and quit providing services and subsidies to the illegals.

                Reduce the flow by cutting off the motive and the remaining trickle is exponentially easier to interdict or apprehend.

              • 1. It signals the nations’ decline when the purpose is to keep people in, not out.
                2. I’m not worried about the Northern border. Any South American who gets all the way to Canada to come here from the North gets a hat tip from me.
                3. What Republicans want to eliminate all social programs?

                • So, I guess you aren’t worried about the Canadian illegals coming here? It happens — I have a fair number of relatives who came to the US that way. I think that number is around 5% of our illegals — but because they blend in, people tend not to notice or care.

                  • Margins Beth.

                    Latin American, especially Mexican, illegal immigration a poses a significant threat compared to the paltry sum of Canadians and even greater than the few from abroad.

        • The tax break plan seems redundant. It’s already more costly to a family to have kids rather than not, so we don’t need to impose further artificial cost unless we really want to drive the point home. This seems functionally equivalent to a tax on children, which is probably not the way we want to go, because it makes it harder to care for the children. That’s why we currently go the opposite way, and have tax breaks for dependents (which comes with its own problems.)

          I still think it’s better to change culture than to use legislation to solve problems like this, even though it’s more difficult.

          • But it ISN’T more costly if it is a young woman’s plan to immediately go on welfare. Plus, there are additional benefits that she might qualify for with having children — such as housing subsidies. Sadly, the point that is being driven home right now for women living in extreme poverty is that there is no detriment, so why not do it. And these children often grow up in horrible environments with little chance of escaping it — and then those children have children at too young of an age. This cycle doesn’t just keep repeating itself, it grows as these young women are having multiple children.

            Not only should we give tax breaks to young adults who haven’t procreated, all graduating seniors (men and women) should receive a check if they graduate high school AND they haven’t pro-created. This incentive would be pennies on the dollar compared to what we are paying now. And this incentive would mean a lot to someone who has nothing.

            My plan only is more costly for responsible parents like me and Jack — and presumably others on this blog. Jack’s point is a good one as the “right” people already are making the call to have no or fewer children but — at least speaking for many in my generation — the tax breaks in place right now have little to do with it. It has more to do with the cost of college and potentially private education for primary and secondary school. This leads into Tex’s observation that a family doesn’t need that kind of wealth to be good parents. That’s true as well — I just think it is off topic. I’m trying to prevent the epidemic, and it is an epidemic in this country, of the growing poverty class.

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