The Sentencing Project releases new report, “The Eugenic Origins of Three Strikes Laws: How ‘Habitual Offender’ Sentencing Laws Were Used as a Means of Sterilization”

In this post late last week, I noted a new article by Daniel Loehr available via SSRN titled “The Eugenic History of Habitual Offender Laws.”  Today I received an email from The Sentencing Project about its new report, authored by Daniel Loehr, under the longer titled “The Eugenic Origins of Three Strikes Laws: How ‘Habitual Offender’ Sentencing Laws Were Used as a Means of Sterilization.”  Here is ths start of the introduction to the report:

Habitual offender” laws, also known as “habitual criminal” laws, are sentencing laws that significantly increase the length of a sentence based on an individual’s prior convictions.

They are widely understood to have emerged from the “tough-on-crime” movement in the 1980s and 1990s. During this time period, a number of states passed these laws, often in the form of “Three Strikes and You’re Out” laws, which require judges to impose life sentences for third convictions for certain offenses.  Washington state passed such a law in 1993, California amended a prior version of its law in 1994 adding a number of violent and non-violent crimes that would qualify for life sentences, and the federal government included a three strikes law in the 1994 Crime Bill.  Despite these prominent examples of “habitual offender” laws enacted during this time period, the origination of these laws extends back much further.

“Habitual offender” laws first spread across the country in the early 1900s as part of the eugenics movement, which grew in the 1880s and reached its peak in the 1920s. The aim of the eugenics movement was to create a superior race in order to address social problems such as crime and disease, which the movement assumed had a biological basis. Applying pseudoscience, laws and policies were created to prevent those who were deemed inferior, such as the mentally ill, those convicted of criminal offenses, or the physically frail, from reproducing. Eugenics and racism are deeply entwined, and the “projects” of eugenics supported “racial nationalism and racial purity.”  One example of the relationship between race and eugenics is found in Nazi Germany, where “Nazi planners appropriated and incorporated eugenics as they implemented racial policy and genocide.”

In the U.S., eugenicists promoted “habitual criminal” laws because they believed that certain people who committed crimes were genetically pre-destined to commit those crimes and also that these individuals could spread their criminality to their children. Therefore, according to eugenicists, one of the best ways to stop crime was to prevent certain individuals who had been convicted of crimes from reproducing.  And it is this set of beliefs that originally underpinned the country’s “habitual offender” laws.

With the backing of these eugenic premises, legislators passed “habitual offender” laws across the country in the early 1900s, with 42 states enforcing them by mid-century.  For example, as detailed below, “habitual offender” laws in California, Vermont, and Colorado, were advocated for on eugenicist grounds and passed successfully in 1923, 1927, and 1929, respectively.  These laws imposed sentences long enough to functionally bar reproduction, and, as is described in this report, they were advocated for in explicitly eugenic terms and were considered in tandem with, or as less controversial alternatives to, sterilization laws.