FACTOR TECNOLOGICO

Criminalizing Class Through Eugenics

Like many Progressive scholars, economists like Ely, Commons, and Ross sought to play an active role in pursuing reform. Many of them worked with or testified before President McKinley’s Industrial Commission from 1898 and 1902, participating in its analysis of industrial concentration, labor markets, and the impact of immigration on the

453 Theodore Roosevelt, The Foes of Our Own Household (New York: George H. Doran Company,

1917), 258.

454 Theodore Roosevelt, “T. Roosevelt Letter to C. Davenport about ‘Degenerates Reproducing,’” DNA

Learning Center, January 3, 1913, https://www.dnalc.org/view/11219-T-Roosevelt-letter-to-C- Davenport-about-degenerates-reproducing-.html.

179

economy. Thomas Leonard has noted the political attention received by the Industrial Commission and its reports, which made recommendations on antitrust law and regulatory policy for corporate criminals that are examined in the next chapter. But interestingly, eugenic perspectives also appeared in the Commission’s nineteen reports to defend harsh justice for street criminals, racial minorities, the urban poor, and immigrants.

In their own work, these economists linked pauperism and criminality to a shared hereditary basis. Ely, for instance, wrote that there are two classes of paupers—one that is willing to work but simply has not learned the requisite skills for labor, while it is “practically impossible” to reform those in the second group that “belongs to the criminal class.”456 _{Frank Taussig similarly tied “criminals and tramps” together as variants of the}

feeble-minded class who are “unemployable.”457 _{Their language was little different than}

the language of “incorrigibility” employed by Brockway and his adherents, but their conclusions were cloaked in the sciences of heredity and eugenics rather than anthropology and phrenology.

The Industrial Commission thus advocated for putting the urban poor and tramps to work behind bars, arguing that they were inherently criminal and needed compulsion to work.458 _{Commission members wrote that Italians, Hebrews, and Irish were prone to}

pauperism and criminality, and consequently made up majority of this class of the lazy

456 Ely, “Pauperism,” 400.

457 Taussig, Principles of Economics, 1:300.

458 U.S. Industrial Commission, Report of the U.S. Industrial Commission on Labor Legislation, vol. V

180

criminal poor.459 _{For instance, when Commons testified before the Commission, he}

claimed that “foreigners and children of foreigners are the worst element which we have in this country,” made up a disproportionate number of the poor and criminal classes, and should be put to work in prison.460

In its volume on prison labor, the Commission embraced ideas of incorrigibility just as scholars like Ely and Taussig did. In evaluating prison labor, the Commission identified the Elmira Reformatory as the premier example of prison management. Being “intended for the reclaiming of the younger lawbreakers, who could not be properly classified as hardened or incorrigible criminals,” the Commission endorsed the segregation of inmates based on categories of corrigibility. The Commission suggested that reformatories should follow Elmira’s lead of grading convicts in three tiers of reformability, with the third grade consisting of “the incorrigible” who should be “kept in confinement” and “at such labor as practicable.”461 _{The Commission endorsed the}

indeterminate sentence, stating if criminals “are becoming habitual criminals, they can be sent for a longer time, even to the extent of a life sentence,” which could arguably “be applied to all delinquents, including the pauper.”462

Late nineteenth century trends linking poverty, crime, and heredity persisted into the early twentieth century, even though the image of the tramp underwent a significant

459 U.S. Industrial Commission, Review of the Report of the Commission on Immigration, 15:xlvii, xliv,

xxi–xxii.

460 U.S. Industrial Commission, Report of the US Industrial Commission on the Relations and

Conditions of Capital and Labor Employed in Manufactures and General Business (Second Volume on This Subject), XIV:38–40.

461 U.S. Industrial Commission, Report of the Industrial Commission on Prison Labor, vol. III

(Washington: Government Printing Office, 1900), 57–58.

462 U.S. Industrial Commission, Report of the US Industrial Commission on the Relations and

Conditions of Capital and Labor Employed in Manufactures and General Business (Second Volume on This Subject), XIV:ccxxxi.

181

transformation in popular culture. In Tramping with Tramps (1899), sociologist Josiah Flynt argued that it is “better for criminology to study the criminal’s milieu” instead of his skull, contesting ideas of innate criminality among the poor.463 _{This contributed to a}

more positive image of tramps in pop-culture. Vaudeville routines depicted tramps as victims of circumstance, not social threats.464 _{But this trend romanticized poverty by}

labeling behaviors once criticized as faults as virtues. Even Charlie Chaplin’s famous “little tramp” character was a thief and con artist.465 _{Despite its positive connotations, this}

comedic imagery did little to divorce perceptions of tramps from ideas of criminality, and kept poverty linked to laziness and deviance.

As a result, this nostalgic imaging coexisted readily with ideologies and rhetoric justifying exclusionary policies targeting the poor. Praising Pennsylvania’s anti-tramp law, the Los Angeles Times reported in 1901 that, “Tramps have multiplied here at an alarming rate in the last few months, and a notable increase in the number of robberies and assaults has resulted.” Brockway connected the criminal poor to cultural determinism, with the Washington Post quoting him as saying, “The culture of crime…the mass of misdemeanants, and the present shiftless methods of treatment produce hardened criminals.”466

This contrast between the pop-culture image of the tramp and public anxieties over the poor was not lost to observers of American criminal justice. In 1901, the Los

463 Josiah Flynt, Tramping with Tramps: Studies and Sketches of Vagabond Life (New York: Century,

1899), 22, 24, 26.

464 DePastino, Citizen Hobo chapter 5; Kusmer, Down And Out, On the Road chapter 9. 465 Kusmer, Down And Out, On the Road, 183.

466 “Crime and Its Cure: Z.R. Brockway on Methods of To-Day and the Future,” The Washington Post,

182

Angeles Times wrote that, “The hobo of the comic page is an amiable soul, with a tomato can; the hobo of real life, when he gets to California, is thoroughly vicious, degraded and dangerous…An epidemic of crime invariably follows the coming of the tramps.”467

William A. Pinkerton stated in 1903 that, “The chief criminal work of this age is done by hoboes or professional tramps.”468 _{In 1907, the New York Times stated that the vagrant or}

tramp “is necessarily a dangerous element, whether or not, or rather even before, he blossoms out into a professional criminal.”469 _{This indicates that those in policy circles}

were less willing to accept the makeover the poor received in popular culture, instead holding onto ideas linking criminality to poverty.

Links between poverty and criminality remained tenacious in intellectual circles as well. For instance, The Journal of the American Institute of Criminal Law and Criminology frequently published articles relating poverty to crime.470 _{In his 1914 study}

of New York’s municipal lodging house, Robert Gault argued that, “A large proportion of vagrants” were “pathologic” and 12% “showed definite evidence of defective mentality.”471 _{In the next issue, John Lisle wrote that the tramp class “must be destroyed”}

and that tramps’ criminality “is not due to their failure to bear their share of the social burden…but in their dangerous characters.”472 _{These ideas served as the basis for}

467 “Ball and Chain for Tramps: Women Vagrants to Get Same Treatment as the Males,” Los Angeles

Times, January 28, 1901.

468 “Tramps Who Are Criminals,” The New York Times, September 29, 1903. 469 “Crime and Vagrancy,” The New York Times, May 2, 1907.

470 Edward Lindsey, “The Bill to Establish a Criminological Laboratory at Washington,” The Journal of

the American Institute of Criminal Law and Criminology 1, no. 2 (1910): 106–11.

471 Robert Gault, “Pathologic Vagrancy,” The Journal of the American Institute of Criminal Law and

Criminology 5, no. 3 (1914): 321–24.

472 John Lisle, “Vagrancy Law: Its Faults and Their Remedy,” Journal of the American Institute of

183

multiple proposed bills to create a federal criminological laboratory in the Justice Department to study the criminal and pauper classes.473

Journalists and intellectuals clearly held onto the connection between poverty and innate criminality, but people with institutional power also shared these beliefs. For instance, Director of the National Association for the Prevention of Vagrancy James Forbes stated in 1911 that, “It is practically impossible to reform a tramp.”474 _{State laws}

relating to tramping thus remained as punitive as they were in the Gilded Age. In 1916, 46 states had statutes authorizing the incarceration of tramps for varied periods of time. Twenty of these states authorized a maximum between 3 and 6 months behind bars for tramping; eleven authorized a maximum of anywhere from one to three years.475 _As

noted in chapter two, these laws were justified on the logic that vagrancy laws should look more like the indeterminate sentence in the sense that they required a longer maximum sentence so that incorrigibles could be incarcerated for longer periods of time.

FIGURE 4.1: Maximum Sentences of Vagrancy Laws in the US States, 1916476

Fine No Max. <3 Months 3 Months 6-10

Months 1 Year 2 Years 3 Years

Total 2 2 11 9 11 4 5 2 States IN TN AR NE AZ MT LA CA AL MI OH TX VA DE NC CO NV NJ FL CT MA RI KY ND ID NM OR GA KS NY MS OK MN UT PA IL MD WI MO SC WY WA IA NH SD ME

473 Lindsey, “The Bill”; Adalbert Albrecht, “Cesare Lombroso: A Glace at His Life Work,” The

Journal of the American Institute of Criminal Law and Criminology 1, no. 2 (1910): 237–49.

474 “What Tramps Cost Nation: Seven Hundred Thousand Hoboes Put $100,000,000 Burden on the

Workers,” The Washington Post, June 18, 1911, 000.

475Laws of the Various States Relating to Vagrancy, Revised (Lansing, MI: State Printer, 1916). 476 Tabulated from Laws of the Various States Relating to Vagrancy. The only state without a vagrancy

184

In his research, Eric Monkonnen (2004) found that arrests for victimless crimes like vagrancy declined in the early twentieth century. He concludes that early twentieth century police focused on punishing criminal behavior rather than repressing poverty.477

But this data should not lead us to overlook the fact that urban police remained agents of class control. Monkonnen notes that those who were considered part of the “dangerous classes” had both negative and positive interactions with police in the nineteenth century, often being lodged and fed by urban police. In the early twentieth century, the police became a blunt negative instrument that enforced neighborhood boundaries. As skid rows emerged in cities to accommodate seasonal labor, police reinforced class lines by ensuring the poor were contained in certain neighborhoods.478

Progressives continued to associate the urban poor with labor violence, fearing them as likely instigators of a working-class revolution. Police often targeted tramps while criminalizing protests and strikes.479 _{While exaggerated, this link was not wholly}

unwarranted; the Industrial Workers of the World (IWW, or Wobblies), helped to infuse hobo culture with a leftist fervor. The IWW newspaper Solidarity wrote in 1914 that hoboes were “admirably fitted to serve as the scouts and advance guards of the labour army,” and could become “the guerillas of the revolution.”480 _{As Todd DePastino has}

477 Monkonnen, Police in Urban America, 83–85. 478 Monkonnen, 157–58.

479 “Soldiers War on Tramps: Infantry Will Perform Police Duty at For Sheridan,” Chicago Daily

Tribune, July 13, 1905, 3.

480 Quoted in Ralph Darlington, Syndicalism and the Transition to Communism: An International

Comparative Analysis (Burlington: Ashgate Publishing, 2008), 97; also see Walker C. Smith, “The Floater and the Iconoclast,” The Industrial Worker, June 4, 1910; Joyce Kornbluh, Rebel Voices: An IWW Anthology (Ann Arbor: University of Michigan Press, 1964), 94–126; DePastino, Citizen Hobo, 95–104.

185

argued, Wobbly folklore built on the image of the savage tramp to romanticize the tramp’s primitivism and masculinity as part of the class struggle.481

State, local, and federal authorities continued to punish radical labor organizations, especially those with high foreign-born membership, into the Progressive Era.482 _{The reports of the Industrial Commission often linked certain ethnic groups to}

working class radicalism, and President Theodore Roosevelt stoked public anxieties linking foreign radicals to deterministic discourse about crime.483 _{Roosevelt claimed that}

the cause of the anarchist’s criminality is “his own evil passions.”484 _{Politically, the}

repression of labor was still justified by links between criminality, race, and determinism. State laws criminalizing anarchy and federal crackdowns on Wobblies satiated fears that workers were prone to criminality. Private organizations like the American Protective League (APL) also emerged as security forces funded by local businesses to infiltrate radical organizations. With the DOJ’s endorsement, the APL demonstrated how intertwined the interests of big business, the police, and the state became in controlling labor through criminal sanction.485

481 DePastino, Citizen Hobo, 116.

482 Goldstein, Political Repression, 63–66.

483 U.S. Industrial Commission, Reports of the Industrial Commission on Immigration, Including

Testimony, with Review and Digest, and Special Reports, and on Education, Including Testimony, with Review and Digest, XV:xliv, 27, 50–51.

484 Theodore Roosevelt, “Message of the President of the United States, Communicated to the Two

Houses of Congress, at the Beginning of the First Session of the Fifty-Seventh Congress, December 3, 1901,” in The Works of Theodore Roosevelt: Presidential Addresses and State Papers, Part 2 (New York: P.F. Collier and Son, 1910), 534–35.

485 Harring, Policing a Class Society, 144–47; DePastino, Citizen Hobo, 105 note 34; George Mowry,

The California Progressives (Chicago: Quadrangle, 1963), 48–50; “Execution of Anarchists,”

Washington Post, February 25, 1908; Goldstein, Political Repression, 68–80 note 17, 108–10, 139- 153. Four states passed laws criminalizing anarchism, indicative of an acceptance for a greater state role in handling political repression that foreshadowed the robust federal interventions that came during World War I.

186

After a sharp uptick in strike activity in 1919—the height of the first “Red Scare”—Attorney General A. Mitchell Palmer instituted a series of raids in 1919 resulting in thousands of arrests. The climax came in January 1920, when federal agents arrested between 5,000 and 10,000 individuals across thirty cities. Palmer defended the raids by attributing the behavior of radical workers to their innate criminality. He drew explicitly on language from anthropological assessments of criminality, suggesting that “from their lopsided faces, sloping brows, and misshapen features,” anarchists and strikers arrested “may be recognized [as] the unmistakable criminal type.”486

Into the twentieth century, the poor and working classes were still viewed as dangerous criminals. But eugenics and hereditarian theory were not only crucial to helping Progressives rationalize class repression through criminal law. These same ideas translated readily into the repression of racial minorities as well.

Hereditarian Theory, Race, and Crime

A large proportion of Progressives supported racial segregation. Academics like Booker T. Washington and politicians like Theodore Roosevelt clung onto scientific discourses of racial inferiority and defended the segregationist policies and strict immigration laws of the Progressive Era.487 _{Within this exclusionary agenda,}

Progressives used ideas about hereditary criminality to defend a harsh justice politics targeting African Americans and immigrants.

486 U.S. Senate Committee on the Judiciary, “Address of A. Mitchell Palmer, Attorney General of the

United States, at the Dinner of the New York County Lawyers’ Association, Hotel Astor, New York City, Friday Evening, February 27, 1920,” in Charges of Illegal Practices of Department of Justice: Hearings Before a Subcommittee of the Committee on the Judiciary, United States Senate

(Washington: Government Printing Office, 1921), 623.

187

For instance, as reviewed in chapter two, vagrancy laws played an important role in southern criminal justice by stocking the convict-lease system. Crimes such as “mischief,” “insulting gestures,” and “pig laws” punishing theft of farm animals were variants on vagrancy laws and were disproportionately enforced against young black men in states like Mississippi, Georgia, Florida, Alabama, Louisiana, and Texas. Convict lease officially ended in 1928 when Alabama abolished it, but for decades the system encouraged police to sweep up vagrants and minor offenders in line with the labor needs of a state’s dominant industries.488

The convict-lease system was not a purely instrumentalist project fueled by economic interests, but one also justified by the logic of bio-determinism. State legislators and southern medical and penological professionals routinely defended convict-lease on the grounds that reformatories would not help to reform an inherently inferior race.489 _{David Oshinksy’s analysis of James Vardaman’s term as Mississippi’s}

Governor from 1904-1908 provides an example of how politicians deployed these ideas. Vardaman, nicknamed the “Great White Chief” for his white supremacist politics, deployed rhetoric depicting blacks as pathologically criminal. He described blacks as “lazy, lying, lustful animal[s]” with an “increased capacity for crime,” favored the use of vagrancy laws to compel black men into labor, and defended lynching as an appropriate response to black crime.490

488 N. Gordon Carper, “Martin Tabert: Martyr of an Era,” Florida Historical Quarterly 60, no. 2

(1981): 161–73.

489 “Remarks of Mr. Henley of Alabama, and P.D. Sims, Chairman of the Board of Prisons,

Tennessee,” 119–12; see Oshinsky, Worse Than Slavery, 32, 47 for quotes; chapters 2-4 on general history of convict-leasing and vagrancy laws.

188

The practice of lynching persisted into the Progressive Era and was justified by the notion that black men were innately violent and prone to raping white women.491

Even Presidents Theodore Roosevelt and William Taft qualified their concerns with the practice in ways that validated prevailing ideas about black criminality. Contending that lynching targeted black men accused of rape, Roosevelt feared that lynching posed a challenge to the state’s authority to punish crime. He wrote in 1903 that such cases should be processed more quickly in order to preempt lynching.492 _{Two years later, he}

stated at a luncheon in Arkansas that, “Long delays of justice, abuses of the pardoning power, [and] the sluggishness with which either court or attorney moves…[bring] about the condition of affairs which produces lynch law.”493 _{Roosevelt repeatedly stated that}

lynching could be prevented if blacks reported black crime and worked to change black culture.494 _{Taft’s conclusions were little different, as he stated in 1909 that lynching was}

caused by “the uncertainties and injustice growing out of delays in trials, judgments, and

491 Garland, Peculiar Institution; Messerschmidt, “We Must Protect Our Southern Women,” 77–94. 492 Theodore Roosevelt, “Letter to Governor Durbin, August 6, 1903,” in The Works of Theodore

Roosevelt: Presidential Addresses and State Papers, Part 2 (New York: P.F. Collier and Son, 1910).

493 Theodore Roosevelt, “Speech at the Luncheon at Little Rock, Arkansas, October 25, 1905,” in The

Works of Theodore Roosevelt: Presidential Addresses and State Papers, Part 2 (New York: P.F. Collier and Son, 1910), 543.

494 Roosevelt, “Letter to Governor Durbin,” 524–25; Theodore Roosevelt, “Address at the Lincoln

Dinner of the Republican Club of the City of New York, Waldorf-Astoria Hotel, February 13, 1905,” in The Works of Theodore Roosevelt: Presidential Addresses and State Papers, Part 3 (New York: P.F. Collier and Son, 1910), 230; Theodore Roosevelt, “At Tuskegee Institute, October 24, 1905,” in

The Works of Theodore Roosevelt: Presidential Addresses and State Papers, Part 4 (New York: P.F.