FACTOR POLITICO LEGAL

The Persistence of Lombrosian Orthodoxy and Its Challengers

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Late nineteenth century constructs of bio-criminality persisted into early twentieth century scholarship. Books by William Duncan McKim, G. Frank Lydston, Philip Parsons, and August Drahms transported Lombrosian ideologies about crime into twentieth century debates.408 _{But these scholars were more skeptical of Lombroso than}

their late nineteenth century predecessors while still accepting his basic claims. McKim, for example, posited that the criminal type was not simply recognizable by an analysis of anatomical differences, even though he agreed that, “the tendency to crime is essentially inborn.”409 _{G. Frank Lydston (1906) similarly concluded that “undue importance” was}

assigned to Lombrosian theory, but still included a chapter in his book on criminal crania. He suggested that Lombrosian physiological defects were indicative of “mental or moral defects” likely associated with criminal behavior.410

These scholars’ works only differed from the standard Lombrosian narrative in trivial ways. The rationale of McKim and Lydston added an intermediate step to Lombrosian theory—physiological defects were signs of inherent moral defects that manifested as crime—but left intact a causal arrow from biology to crime. They still paired bio-determinism with rehabilitative philosophy, as McKim, Lydston, Parsons, and Drahms supported the indeterminate sentence both as a reformative measure and a punitive one.411 _{Their proposed treatments for incorrigibles entailed eugenic solutions of}

408 Parsons, Responsibility for Crime; McKim, Heredity and Human Progress; Lydston, The Diseases

of Society; Drahms, The Criminal.

409 McKim, Heredity and Human Progress, 159, 162–64. 410 Lydston, The Diseases of Society, 88.

411 Drahms, The Criminal, 365–70; McKim, Heredity and Human Progress, 20–26; Lydston, The

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extraordinary severity, including indefinite containment, sterilization, or extermination.412

Their works maintained the marriage of an ostensibly progressive rehabilitative discourse to punitive interventions.

Despite the work of these scholars, Lombrosian orthodoxy was uncommon among Progressives. Two new schools of thought purported to challenge Lombrosian theories of crime in the early twentieth century—cultural and hereditarian theories. In an evolving social science terrain in which scholars of culture, eugenics, and economics became increasingly prominent, the primary intellectual carriers of ideas about crime shifted. The ways in which cultural theorists and especially eugenicists built on and modified the ideas of nineteenth century criminal anthropologists shaped the character of American crime politics in the early twentieth century.

As will be discussed, hereditarian scholarship was little different from Lombrosian theory. Although many presented themselves as breaking from Lombroso’s work, hereditarian scholars endorsed ideas of natural criminality first articulated in Lombroso’s research and defended the rehabilitative ideal as a tool for the eugenics movement. Scholars of culture posed more meaningful challenges to bio-deterministic science, but even they failed to wholly dislodge the assumptions of race science and bio- determinist theory. Cultural theorists commonly articulated essentialist narratives of group difference to explain divergences in behavior across race.413 _{When “black culture”}

412 McKim, Heredity and Human Progress, 146, 188–93; Lydston, The Diseases of Society, 562–68;

Parsons, Responsibility for Crime, 65, 148–49.

413 Reed, “Revolution as ‘National Liberation’”; Walter Benn Michaels, “Race into Culture: A Critical

Genealogy of Cultural Identity,” Critical Inquiries 18, no. 4 (1992): 655–85; George Stocking, Race, Culture, and Evolution: Essays in the History of Anthropology (Chicago: University of Chicago Press, 1968), 195–233.

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was used to explain disparities in crime, it still pathologized black crime as a distinct social problem. Even as a cultural phenomenon, “black crime” was treated as a function of one’s racial identity, impeding the capacity for cultural scholarship to fully discredit the arguments of bio-determinists and race scientists.

In The Condemnation of Blackness, Khalil Gibran Muhammad demonstrates why Progressive Era cultural theory failed as a counter-discourse to biology. Muhammad points to Franz Boas’s publication of The Mind of Primitive Man in 1911 as a critical juncture. A foundational text of cultural anthropology, The Mind of Primitive Man

claimed to break from biological explanations of racial inferiority by arguing that perceptions of racial inferiority were truly outcomes of social neglect.414 _{But Muhammad}

argues that Boas simply “erased the color line and replaced it with a culture line.” By linking inferior behavior to black culture, Boas fostered a discursive shift from biological to cultural essentialism. His emphasis on the distinctiveness of black culture grounded his work in an a priori assumption of racial difference, leaving room for readers to accept his arguments in addition to claims about innate racial inferiority among blacks.415

Other studies of race and culture by scholars like W.E.B. Du Bois attributed crime to cultural forces in ways that reinforced the idea that black culture was distinctively criminogenic.416 _{Du Bois’s analysis in The Philadelphia Negro (1899) was a rigorous}

examination of poverty and discrimination against black Philadelphians. He attributed black criminality to socioeconomic and cultural forces that could only be understood with

414 Franz Boas, The Mind of Primitive Man (New York: Macmillan, 1911); Stocking, Race, Culture,

and Evolution, 230–33.

415 Muhammad, The Condemnation of Blackness, 101–11.

416 W.E.B. Du Bois, The Philadelphia Negro: A Social Study (New York: Schocken Books, 1899), 242,

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reference to the long history of racial repression in America. It was a study of significant import that constituted a pivotal reformulation of the concept of race and laid groundwork for the development critical race theory. But Du Bois’s contemporaries classified his work under the “Negro question,” separating his research from larger questions about labor, immigration, and poverty, even though Du Bois made a strong case for their interrelation.417 _{Despite its longer historical significance, The Philadelphia}

Negro’s immediate impact was shaped more by the leading scholars interpreting it than its author.

Nonetheless, even Du Bois’s work was infected with strains of determinism. He wrote there were degenerates among blacks just as there were among Europeans, noting that “some [blacks] were fitted to know and some to dig.”418 _{This is a testament to the}

tremendous sway of hereditarian theory in the Progressive Era—even a leading opponent of race science feared the excessive breeding of the unfit and argued that there existed, within each racial type, natural hierarchies of superiority.

Among eugenicists, race scientists, and even cultural theorists, criminality remained intimately connected to racial identity and biological makeup. Numerous progressive scholars accepted the work of hereditarians and determinists.

The Emergence of Hereditarian Theory

Hereditarian theorists often presented their work as challenges to biological scholarship, but hereditarian theory was mostly a repackaging of ideas related to bio- determinism. The central difference between hereditarian and biological theory was that

417 Leonard, Illiberal Reformers, 70.

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atavistic features were not seen as direct causes of criminality. Rather, they were indicative of lower intelligence or moral defects, which were the true causes of crime. This was a distinction of marginal import, as in both schools of thought, criminality remained a congenital defect requiring predictive containment. The shift from biological and anthropological to hereditarian theories of crime kept the basic ideology of crime the same while changing its scientific clothing. The more important difference were the unique policy implications of hereditarian theory, which insisted that the state play a greater and more interventionist role in selecting the unfit out of society. The hard science of heredity proved valuable to Progressives. Expressing a deep faith in objective science, Progressives relied on the science of heredity to hierarchically order humanity into natural tiers of superiority, which justified an agenda of state administered artificial selection.

Stephen Jay Gould’s The Mismeasure of Man (1981) tracks the origins and development of early twentieth century hereditarian scholarship. French psychologist Alfred Binet sparked the emergence of psychology as an intellectual field by developing mental tests to quantify intelligence and correlate it with human behavior. Binet was an “anti-hereditarian,” in the sense that he did not measure mental capacity hoping it would uncover each individual’s developmental ceiling. Rather, he sought to use it to identify individuals who had unique educational needs.419

American scholars quickly perverted Binet’s aims, interpreting his tests as proof that people had natural limits to their development. Scholars like H.H. Goddard and Lewis Terman linked this to criminality. In his seminal book Feeble-Mindedness (1914),

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Goddard argued that, “The so-called criminal type is merely a type of feeble- mindedness.” He estimated that 25 to 50 percent of the people in prisons were mental defectives “incapable of managing their affairs with ordinary prudence.”420 _{He suggested}

that criminality was heritable through intelligence.421 _{Goddard was primarily concerned}

with “morons,” a diagnostic label for people whose testing scored them at a mental age between 8 and 12. Morons typically lacked the observable physiological features of mental deficiency, and Goddard feared they could be mistaken as healthy and interbreed with the healthy population.422

In 1916, Lewis Terman built on Goddard’s ideas in The Measurement of Intelligence. Terman identified intelligence as the most relevant trait in explaining crime, asserting that, “the most important trait of at least 25 percent of our criminals is mental weakness.” Like Goddard, Terman saw himself as challenging criminal anthropology by pointing to the role of intelligence in criminality. He stated that, “The physical abnormalities which have been found so common among prisoners are not the stigma of criminality, but the physical accompaniments of feeble-mindedness. They have no diagnostic significance except in so far as they are indications of mental deficiency.”423

It was a trivial difference. Terman and Goddard disagreed that Lombrosian stigmata were indicative of a criminal biology but suggested that they were markers of a defective intelligence that caused crime. Their causal connections had an extra step but

420 Henry Herbert Goddard, Feeble-Mindedness: Its Causes and Consequences (New York: Macmillan,

1914), 6–7.

421 Goddard, 188–92; Rafter, Creating Born Criminals, 136–41.

422 Goddard, Feeble-Mindedness, 4–6, 171.“Imbeciles” scored from age 3-7, and idiots less than 3. See

Gould (1980), 188-90.

423 Lewis M. Terman, The Measurement of Intelligence: An Explanation of and A Complete Guide for

the Use of the Stanford Revision and Extension of the Binet-Simon Intelligence Scale (Boston: Houghton Mifflin, 1916), 7.

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accepted the correlations Lombroso claimed to identify. It is predictable that Terman made policy proposals similar to the ones that Lombroso, Brockway, and biologically oriented rehabilitative scholars defended. He insisted on “permanent custodial care” for the “hopelessly feeble-minded.”424

Hereditarian scholarship was closely tied to race science and eugenics scholarship, but there were meaningful differences between the three. Hereditarian scholarship viewed heredity as the primary explanation for human behavior and intelligence, implied the necessity of more state intervention in monitoring the selection process, but presented itself as an objective science without the normative spin attached to race science and eugenics. Scientific racism alternatively aimed to uncover scientific proof of racial inferiority and superiority explicitly in the service of a white supremacist agenda. Eugenics constituted both an intellectual discipline and a political and social movement, seeking to use the state to improve the human race through selective breeding. Hereditarian scholarship, scientific racism, and eugenic scholarship thus intersected and overlapped in complex ways. As a movement, eugenics channeled the ideas and ideologies articulated in all three fields into political demands for expanding the state’s powers to engage in artificial eugenics-oriented selection. The tight intertwining of these intellectual and ideological threads justified the targeting of undesirables, including criminals, for harsh justice.

Concepts like “feeble-minded” and “mental defective” emerged in these intellectual traditions independent from debates about crime. But scholarship published by Goddard and Terman blurred the lines between intelligence, mental illness, and

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criminality by treating the “feeble-minded,” “insane,” and “epileptics” as “criminal types.” Goddard explicitly stated that “Lombroso’s famous criminal types…may have been types of feeble-mindedness on which criminality was grafted.”425

Consequently, early twentieth century scholars of crime defended eugenic solutions for criminals, and the idea of incorrigibility became instrumental to their theories. It was scholars like Lydston, Boies, and McKim who helped transport ideas about innate criminality into Progressive Era politics, while hereditarians like Goddard and Terman repackaged these ideas into ideational frameworks amenable to Progressives. But it was scholar-reformers who helped put them into practice through policy change.

As the social sciences evolved in the twentieth century, hereditarian theory was deployed by three groups of scholar-reformers to pursue policy reform and depict various sub-populations as inherently criminal and unworthy of social assistance. Economists presented criminals as inherent defectives that impaired the functionality of the American economy and labor market. Race scientists depicted immigrants and racial minorities as likely criminals and as threats to the survival of American society. Finally, eugenicists used hereditarian theories to label the urban poor, racial minorities, immigrants, and mental defectives natural criminals, offering scientific legitimacy to state sterilization laws. Although eugenics was a fundamentally racist project, it took a broad range of forms and legitimated ascriptive hierarchies of race, class, gender, and ethnicity. The embrace of eugenics by a diverse class of scholar-reformers highlights how eugenics legitimated the durable racist, classist, and nativist biases of American political culture.

425 Henry Herbert Goddard, The Kallikak Family: A Study in the Heredity of Feeble-Mindedness (New

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Hereditarian Theory and Economists

Thomas Leonard has shown how economists like Richard Ely, John Commons, and Edward Ross pushed for progressive reforms like minimum wage laws in ways that embraced social exclusion. Driven by race science and eugenics, Progressive economists pursued legislation that would uplift the worthy poor while excluding the unworthy poor, including immigrants, blacks, women, mental defectives, and “white trash.” They formed the American Economists Association in the late nineteenth century in order to connect intellectuals and scholars to policymaking circles.426

These scholars were Progressives in that they viewed criminals as pathologies to the collective social body. Fears of “race suicide,” the idea that the unfit were outbreeding their betters, fostered anxieties that natural selection was inefficient at breeding out social undesirables in modern society. Scholars of political economy viewed criminality as a tendency common among undesirables who were a drain on community resources, weakened society’s productive capacity, and thus needed social control, typically through compulsory sterilization.

For instance, Richard T. Ely wrote in Introduction to Political Economy that, “the dependent and criminal classes…impair the productive power of the community.”427 _He

wrote that there were three divisions of the unemployable population, specifically “the defective, delinquent, and dependent.” He argued that these classes were “morally incurable” and “should not be allowed to propagate their kind.”428 _{Economist Frank}

426 Leonard, Illiberal Reformers, 28–39.

427 Richard T. Ely, Introduction to Political Economy (New York: Eaton and Maines, 1901), 120. 428 Richard T. Ely, “Pauperism in the United States,” North American Review 152, no. 413 (1891): 395,

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Taussig made similar claims, arguing that there existed only two classes of unemployables—the aged and disabled, and the “feebleminded” who mostly consisted of “irretrievable criminals and tramps” who were “tainted with hereditary disease” and should be “prevented from propagating their kind.”429 _{In these contexts, criminals were}

perceived as defectives and drains on the nation’s political economy.

Edward Ross’s work particularly carried ideas about criminality carried into progressive discourse. He argued that the criminal law should not punish a crime in proportion “to the measure of harm” it incurred. This, he said, was more common in “rude communities” that over-sympathized with victims. Alternatively, he insisted that, “offences should be repressed according to the badness of character they imply.” This emphasis on the character of the offender rather than the action reflected ideas from nineteenth century debates. Whether someone fit the idea of the criminal type was the most important factor in determining their punishment. Ross thus drew conclusions that “the trolley company, the quack medicine man, the insurer or rotten ships, and the jerry builder” should not be punished as harshly as other offenders “because they are morally superior” to ordinary criminals.430

Ross connected criminal punishment to the health of the collective society. In his 1896 article “Social Control,” he wrote that society should be focused on the “moulding of the individual’s feelings and desires to suit the needs of the group.”431 _{He said that}

“insuring greater harmony of social life by segregation of the insubordinate and

429 Frank Taussig, Principles of Economics, vol. 1 (New York: Macmillan, 1911), 300.

430 Edward Ross, Social Control: A Survey of the Foundations of Order (New York: Macmillan, 1901),

110.

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elimination of the criminal, aims…at progress.”432 _{He drew on rehabilitative ideology to}

package ideas of innate criminality into progressive economics. Ross wrote that, “the principle of individual responsibility is another great improvement in the technique of control.” He concluded that, “as to the mass of small-witted, weak-willed, impulse-ridden human ‘screenings’ that collect in prisons, our care should be to reform the reformable and to hold fast the incurable the rest of their days.”433

These economists regularly argued that artificial selection was preferable to natural selection. In his 1901 book Social Control, Ross wrote that “we can regard this society as a living thing” and social control “as one of the ways in which this living thing seeks to keep itself alive.”434 _{He wrote a few years later in defense of “sterilization of all}

congenital criminals as the only means of thinning out the bad breeds.”435 _{He even}

defended Wisconsin’s sterilization statute in 1914 by connecting it crime prevention, stating, “Sterilization is not nearly so terrible as hanging a man, and the chances of sterilizing the fit are not nearly so great, as are the chances of hanging the innocent.”436

Economist John Commons similarly wrote that “We cannot placidly rely on any abstraction of natural selection to wipe out crime…Evolution is not always development upwards.”437 _{Ely also pointed to the “superiority of man’s selection to nature’s}

432 Ross, 521.

433 Ross, Social Control, 1901, 118–19. 434 Ross, 67.

435 Edward Ross, “Recent Tendencies in Sociology III,” Quarterly Journal of Economics 17, no. 3

(1903): 447.

436 Quoted in Rudolph Vecoli, “Sterilization: A Progressive Measure?,” The Wisconsin Magazineof

History 43, no. 3 (1960): 190–202.

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selection.”438 _{It was through this logic that economists justified sterilization for}

defectives, the unfit, and criminals, among others who were viewed as drains on the national economy.

Hereditarian Theory and Race Scientists

Race scientists also transported ideas about natural criminality into twentieth century debates. It should be noted that the term “race” had broad, vague, and multiple