07 January 2017

Eugenics and Reparation

'California’s Sterilization Survivors: An Estimate and Call for Redress' by Alexandra Minna Stern, Nicole Novak, Natalie Lira, Kate O’Connor, Siobán Harlow and Sharon Kardia in (2017) 107(1) American Journal of Public Health 50-54 comments
From 1919 to 1952, approximately 20 000 individuals were sterilized in California’s state institutions on the basis of eugenic laws that sought to control the reproductive capacity of people labeled unfit and defective. 
Using data from more than 19 000 sterilization recommendations processed by state institutions over this 33-year period, we provide the most accurate estimate of living sterilization survivors. As of 2016, we estimate that as many as 831 individuals, with an average age of 87.9 years, are alive. 
We suggest that California emulate North Carolina and Virginia, states that maintained similar sterilization programs and recently have approved monetary compensation for victims. We discuss the societal obligation for redress of this historical injustice and recommend that California seriously consider reparations and full accountability.
They state
In 1926, Marsha (all names are pseudonyms) was admitted to the Sonoma State Home in California and recommended for sterilization because of her IQ score of 56, which placed her in the category of “low moron [sic]”. Given this diagnosis and because she was “sly, profane, [and] obstinate,” the medical superintendent determined that Marsha was “dangerous to public health” and, therefore, should be sterilized. Marsha was but one of approximately 20 000 people affected by a law passed in 1909 that authorized such reproductive surgery on patients committed to state homes or hospitals and judged to be suffering from a “mental disease which may have been inherited” and was “likely to be transmitted to descendants.” 
On the books until 1979, this statute provided the legal framework for the most active sterilization program in the United States. California’s sterilization law authorized medical superintendents to perform the operation without consent. Nevertheless, institutional authorities did seek written consent from a family member or legal guardian when possible, probably as a result of liability concerns. Yet, the prison-like environment of state institutions during this era raises serious questions about the validity of the consent process. Notably, sterilization was a prerequisite for release from some institutions. 
Confirming genuine consent is complicated because signatures, dates, and names on consent forms are often inconsistent with information in patient records. The documents themselves do not always record when or whether the operation was actually performed. In addition, we identified multiple efforts by families and patients themselves to prevent sterilization. Although some sterilizations may have been performed with the signed consent of a parent or guardian, these procedures did not meet the standards of voluntary consent, and in many cases people were sterilized against their will. Although California was the most aggressive sterilizer, information about the likely number of living victims is scant because of the paucity of large-scale data sources and the silence of the victims themselves. 
As of 2016, we estimate that as many as 831 patients sterilized in California institutions are alive today. Producing this estimate is one facet of a larger interdisciplinary project devoted to demographic and historical reconstructions of eugenics and sterilization in California. Given public health’s commitments to social and reproductive justice, we believe that public health offers a useful lens for coming to terms with this past injustice. By providing the most rigorous estimate of sterilization survivors in California to date, we hope to spark a conversation about potential opportunities for recognition and redress.
They go on to note that
Human rights and legal scholars have debated instances of injustice that merit more than a simple apology, such as slavery, internment, and genocide. The ethical principles that one legal scholar provides for determining when society is obliged to provide redress to a group of people include that “a human injustice must have been committed” and that said injustice “must be well documented.” In 2003, California officials publicly apologized for the state-run sterilization program, acknowledging the thousands of surgeries as a human injustice. In addition to state counts of the number of sterilizations, our data and archive include official records and requests that fully document the sterilizations and the biased eugenic logic used to justify them. Given the principles outlined by legal scholars guiding “meritorious redress claims,” the state’s own admission of injustice, and the documented impact of sterilization on people with disabilities and from poor backgrounds, it is reasonable to conclude that what happened in California warrants more than a public apology, especially given the state’s high sterilization numbers. Guided by our estimate of the number of living sterilization survivors, we suggest that California emulate its sister states, North Carolina and Virginia, and launch monetary compensation programs for victims. Both North Carolina and Virginia have created agencies (the North Carolina Office of Justice for Sterilization Victims and the Virginia Eugenical Sterilization Act Compensation Program) to process and adjudicate claims for compensation, which were set at $20 000 and $25 000, respectively. Recent efforts in these two states underscore the merit of compensating individuals who have experienced state-sanctioned reproductive injustice. In 2013, after years of organizing by sterilization survivors and supportive legislative officials, North Carolina, which sterilized approximately 8000 people in the 20th century, passed a law to compensate victims. North Carolina’s State Center for Health Statistics used life table methods similar to our own to estimate that there were as many as 2944 living survivors of the North Carolina Eugenics Board’s sterilization program in 2010 (although adjustment for lower life expectancy among groups targeted for sterilization reduced the final estimate of survivors to 1500–2000). Although North Carolina performed fewer total sterilizations than California, its estimate of living survivors is higher because eugenic sterilizations occurred more recently, well into the 1960s.
A $10 million fund was appropriated to correspond to the number of victims deemed eligible for compensation. The state’s Office of Justice for Sterilization Victims required that victims be alive on June 30, 2013, and it accepted claims through June 30, 2014. The state approved 220 of 768 claims and sent out $20 000 checks to verified claimants. The legislation required proof that the procedure was approved by the North Carolina Eugenics Board, and thus some individuals sterilized by private physicians, even those with eugenic intent, were ineligible for compensation. A bill proposed in the state legislature earlier this year would make additional reparations available to some of these victims. In Virginia, where about 7600 people were sterilized in state institutions during the 20th century, the Christian Law Institute pushed for legislation, established the Justice for Sterilization Victims Project, and lobbied the legislature for monetary compensation following the example of North Carolina. The number of survivors in Virginia was estimated to be approximately 1500 on the basis of North Carolina’s calculation that approximately 20% of initial victims had survived to the present day. In 2015, the state set aside $400 000 to compensate survivors with awards of approximately $25 000 each. The Virginia Eugenical Sterilization Act Compensation Program required that victims be alive on February 1, 2015, and the program continues to accept claims.
One concern in both states has been whether receipt of reparations would count toward individuals’ income and make them ineligible for federal programs such as Medicaid or the Supplemental Nutrition Assistance Program. A bill recently passed in the US House of Representatives would ensure that state-level eugenics reparations do not interfere with the benefit eligibility of this aging and vulnerable population. While North Carolina and Virginia were organizing compensation programs, a new episode of sterilization abuse emerged in California, this time among women incarcerated in state prisons. A 2013 Center for Investigative Reporting article revealed that, between 2006 and 2010, close to 150 unauthorized sterilizations were performed in California prisons. In response, Senator Hannah-Beth Jackson requested an investigation by the California state auditor that corroborated and expanded the article’s findings, showing that 144 women were sterilized without adherence to required protocols.
Prejudices expressed by Dr. James Heinrich, the physician who performed many of the tubal ligations, were particularly revealing. He told a reporter that the money spent sterilizing inmates was negligible “compared to what you save in welfare paying for these unwanted children — as they procreated more.” This callous attitude toward the reproductive lives of institutionalized women, the majority low-income women and women of color, echoed earlier eugenic attitudes. In the 1930s, at the height of eugenic sterilization, California’s health officials repeatedly asserted that, in addition to its therapeutic value, sterilization would relieve the state of the economic burden of “defectives” and their progeny.
Senator Jackson connected the prison sterilizations to California’s past when she stated that “pressuring a vulnerable population—including at least one instance of a patient under sedation[—]to undergo these extreme procedures erodes the ban on eugenics.” This recent news and Senator Jackson’s comments point to the importance of recognizing the long history of sterilization abuse involving vulnerable individuals in California.
'Following in North Carolina's Footsteps: California's Challenge in Compensating its Victims of Compulsory Sterilization' by Katherine A. West (2013) 53 Santa Clara Law Review 301 notes
In the 1940s, physicians at the Sonoma State Hospital sterilized Charlie Follett, a fourteen-year-old boy placed in the institution because his parents were alcoholics and unable to care for him. Neither hospital officials nor physicians informed Follett of the procedure he was to undergo. Even worse, Follett did not consent to the operation. According to a CNN interview with Follett, a hospital official brought Follett into the hospital, told him to lie down on an operating table, and gave him a shot to “deaden [his] nerves.” Follett next remembered hearing a “snip, snip”—the sound of him being sterilized. In May 2012, Follett passed away, sixty-seven years after his sterilization operation; he had no remaining family. 
Follett was but one of an estimated 20,108 Californians involuntarily sterilized by the state of California under its eugenic sterilization law. To this date, California has not provided health care services or compensation to its victims of sterilization. State representatives simply issued apologies in 2003 expressing the state’s “profound regret.” 
California is not alone in its history of eugenic sterilization. Beginning in 1907, the United States sterilized roughly 60,000 individuals without their consent. Thirty-two states in total passed eugenic sterilization laws in an attempt to rid the nation of defectives unfit to reproduce and to promote “human betterment.” These state sterilization programs authorized the involuntary sterilization of individuals labeled feebleminded, promiscuous and insane, and targeted those with epilepsy, alcoholism, and syphilis. Proponents of sterilization argued that sterilizing these individuals would cure America’s social ills. State-run sterilization programs continued into the 1970s, with some states maintaining their sterilization laws on the books into the 1980s. Currently, few states have taken action to redress the harm their sterilization victims suffered. Only seven states, including California, have issued apologies recognizing the wrong suffered by their sterilization victims. The remainder of the nation’s victims remain unrecognized.  
North Carolina and its eugenics program recently entered the national spotlight with talks of compensating its estimated 1500 to 2000 living victims. In January 2012, the North Carolina Governor’s Eugenic Compensation Task Force proposed that the North Carolina legislature compensate each living victim with a $50,000 lump sum. In addition, the Task Force recommended that the state offer mental health services for living victims and fund a traveling North Carolina Eugenics Exhibit. In June 2012, the North Carolina state legislature considered the Task Force’s recommendations. The North Carolina House of Representatives approved the legislation; however, the state senate rejected the Task Force’s compensation plan. Had North Carolina adopted these measures, it would have been the first state to compensate its victims of forcible sterilization. While North Carolina contemplated compensating its sterilization victims, eyes turned toward California, the most egregious offender in the nation’s shameful eugenic past. California performed one-third of the total sterilization operations in the nation, more than twice as many sterilizations as its “nearest rivals.” Will California follow North Carolina’s example and consider compensating its living victims? In this Comment, I discuss the challenges California faces in compensating its sterilization victims. Unlike North Carolina whose numbers of sterilizations rose after 1950, California’s sterilization program died down after 1952, meaning a large number of California’s victims are most likely no longer living. In addition, the state will face challenges locating victims and encouraging them to come forward in spite of the shame they may feel. 
Part I of this Comment explores the background of the nation’s eugenics history, focusing particularly on California’s sterilization program. Part II discusses the end of the state eugenic programs and outlines state measures taken to redress victims. Part III analyzes the case for compensation, exploring why states should consider compensating victims of involuntary sterilization. In addition, Part III discusses North Carolina’s approach to the issue. Part IV analyzes California’s challenges in compensating its victims, looking specifically at the number of possible living victims and the difficulties the state will face in locating them. Lastly, Part V examines California’s options and moral obligations, proposing that California should compensate its sterilization victims regardless of how few may be alive and the difficulties the state faces locating victims. I further propose that California should commission a task force to determine the amount of money and type of services it should provide survivors.