Articles Issue #23
BY Anthony GrassoFebruary 11, 2018
BY Anthony GrassoFebruary 11, 2018
After decades of carceral growth, criminal justice reform has recently become a significant issue in American politics. Prior to the recent reinvigoration of law-and-order politics, growing support for prison reform from the left and right indicated a departure from tough-on-crime impulses. Political discourse focused on the costs and consequences of the prison crisis and prompted a rethinking of U.S. crime policy that contrasts the punitive rhetoric being reanimated in the current political climate.
In such a polarized discursive environment, support for “rehabilitation” as an alternative to punitive politics has become a signifier of progressive credentials. During the 2016 presidential election, both major candidates on the left deployed the language of rehabilitation as an alternative to harsh justice. Hillary Clinton called for “[p]rioritizing treatment and rehabilitation—rather than incarceration” for low level offenders. Bernie Sanders stated that, “Our emphasis must be on rehabilitation, not incarceration and longer prison sentences.” And a few months before he left office, Barack Obama issued a presidential memo titled “Promoting Rehabilitation and Reintegration of Formerly Incarcerated Individuals.”1
While this facilitated a shift in crime discourse, it is important to recognize that rehabilitating those we put behind bars is not a new idea in American politics. For most of the twentieth century, the philosophy that incarceration should reform and prepare inmates to lead lawful and industrious lives upon release guided U.S. crime policy. It was only in the 1970s that policymakers rejected this “rehabilitative ideal” in favor of the familiar brand of punitive politics associated with the carceral state’s rise.2
Although support for reclaiming the rehabilitative ideal has become almost a prerequisite for identifying as progressive, advancing rehabilitative crime politics as an alternative to punitive discourses ignores the ideal’s ideological roots and historical role in political development. Rehabilitative policies have long coexisted alongside punitive policies and appear to have only modest effects in improving the lives of released inmates and reducing recidivism.3 Historically, discoveries that “nothing works” to immediately reduce recidivism or rehabilitate inmates have resulted in escalated calls for punishment.4
An historical analysis of rehabilitative ideology provides insight into the rehabilitative ideal’s relationship to punitive politics. Rehabilitative interventions such as indeterminate sentencing, educational programming, and vocational training are designed to provide offenders experiences, knowledge, and skills to help them succeed. This ignores how structural inequalities deny people access to those experiences, knowledge, and skills in the first place. That’s because in rehabilitative ideology, criminality is understood as a function of individual defects rather than as symptoms of the broader social and political inequalities that shape the class profile of the prison population. When criminality is viewed as a function of defects and deficiencies entirely rooted in the person, criminality can only be cured through individual level responses.
This individualistic framework of rehabilitative logic has been informed by scientistic continuities in crime scholarship. Emergence of the rehabilitative ideal was coupled with political trends driving the rise of eugenics in the late nineteenth and early twentieth centuries. Bio-deterministic constructs of criminality shaped two prongs of rehabilitative theory—one premised on reforming and releasing offenders, and another focused on segregating and punishing those deemed “incorrigibles” who proved impossible to reform. The “incorrigibles” label reflected the concept of “born criminals” created by nineteenth-century criminologist Cesare Lombroso, founder of the school of criminal anthropology, to refer to individuals born with a primitive biological makeup that left them prone to crime.5 This linked rehabilitative ideology to a punitive politics focused on identifying and warehousing people deemed naturally and inherently criminal.
Shaped by biological scholarship linking crime to congenital pathologies, rehabilitative thought adopted an ideological framework distinct from earlier philosophies of punishment. For example, retributivist- and deterrence-based penologies emphasized consistency by arguing that punishments must be proportional to criminal acts.6 By contrast, rehabilitation posited that punishment must be individualized. Two people who committed the same crime should receive different sentences if they had different natural rehabilitative capacities and needs. This emphasis on the focal individual opened the door to a politics targeting a construct of the “criminal type” shaped by the ideological biases of crime science.
Late nineteenth and early twentieth century eugenic scholarship linked crime and poverty to a shared biological predisposition, directing scholars’ attention onto crimes common among the urban poor. This imbued rehabilitative theory with a series of class-skewed a priori assumptions about what counted as crime and who was likely to commit it. Rehabilitation consequently served a scientistic project of class sorting, as lawmakers have routinely looked to individuals’ behavioral histories, personal traits, and socioeconomic background as evidence of their propensity to rehabilitate or recidivate. Political choices in writing criminal statutes have historically reflected the tenets of crime science, justifying harsh punishments for crimes commonly committed by poor populations viewed as naturally prone to crime. The crimes of elites have alternatively taken on different substantive meanings warranting less severe punishment, since these individuals lack criminogenic dispositions and biological traits. The crime science on which rehabilitative ideology rests has naturalized inequality and crime in ways that have tightly linked class distinctions to constructions of criminality.
Even though rehabilitative rhetoric has waxed and waned in influence, rehabilitative penology’s ideological principles are permanently imprinted onto the U.S. criminal justice system. Significant elements of the state’s punishment calculus reflect a scientific logic aimed towards identifying what makes an individual likely to recidivate or reform. Sentencing is still informed by assessments of individual offenders’ socioeconomic backgrounds, behavioral histories, and personal traits. How class-skewed ideologies about natural criminality undergird this punishment calculus can be traced to the origins of crime science and rehabilitative ideology in the Progressive era.
The class slant embedded into these sentencing calculations is exacerbated by contemporary bio-analyses of crime, which purport to prove that certain populations are naturally criminal. Recent work by scholars like Adrian Raine attributes crime and poverty to congenital biological, genetic, and physiological factors, reinforcing the most abusive and class-biased facets of state penal policy. Rehabilitative ideology’s relationship to eugenics earlier in the century suggests that this research could connect a full revival of rehabilitative theory to growing support for eugenic practices.
This history highlights why progressives should be cautious in their advocacy of rehabilitation. The labels of “habitual criminal,” “career criminal,” and “three-strikes offender” bear ideological likenesses to the labels “incorrigible” and “born criminal.”7 Rehabilitative ideology’s emphasis on science and its assumptions about who is likely to recidivate restrict the reach of these labels to racial minorities and the poor, comporting with neoliberal crime politics and its emphasis on individual responsibility. Resurgent interest in bio-criminology provides a fresh intellectual validation of upper-class assumptions that lower-class citizens are naturally defective and prone to deviance.
After examining the rehabilitative ideal’s bio-criminological roots, this article highlights the influence of crime science on policy in three case studies from the late nineteenth and early twentieth centuries. While scientistic constructs of criminality justified enhanced penalties in anti-tramp laws and the convict-lease system, assumptions about who was a likely “criminal type” justified lenient penalties in the Interstate Commerce Act of 1887. The durable historical connections between scientistic ideas of criminality and rehabilitative ideology are highlighted in the second section, which considers the political implications of the current renaissance of bio-criminology.
By conceptualizing criminality as a function of individual faults that can be treated through micro-interventions, rehabilitative frameworks rely on a crime science that naturalizes and hardens class distinctions. Contemporary assumptions about who needs rehabilitation and who can and cannot be reformed share consistencies with earlier modes of thought that emerged in conjunction with eugenics. Rehabilitative ideology and crime science have helped to ensure that the upper-class view of who and what counts as “criminal” has remained the common sense view. Given the growing interest in bio-criminology, a contemporary recovery of the rehabilitative ideal will only reaffirm this perspective.
The Rehabilitative Ideal and the Biology of Crime
Zebulon Brockway, a pivotal force in the history of American penology, popularized rehabilitation as a philosophy of punishment in the late 1800s during his tenure as warden of New York’s Elmira Reformatory. He received national acclaim for Elmira’s indeterminate sentencing program, which released offenders before the end of their sentences if they demonstrated adequate rehabilitative progress.8 But inside Elmira, beatings and psychological abuse were common experiences for inmates. This was due in large part to Brockway’s belief in Lombrosian theory. He called inmates “defective fellow beings” and described the “inferiority” among those endowed with the physiological stigmata Lombroso identified among born criminals.9 Brockway defended the indeterminate sentence as both a repressive and curative instrument, one that enabled reform for inmates while ensuring that incorrigibles would be “continuously held under enough of custodial restraint to protect the public.” The scientific racism at the rehabilitative ideal’s foundation was apparent in his conclusion that the dual purposes of indeterminate sentencing served the purpose of creating “a perfect race.”10
Well-known nineteenth-century scholars of crime and human behavior like Arthur MacDonald, Henry Boies, August Drahms, and Charles Henderson endorsed the rehabilitative ideal and were adherents to the Lombrosian School of criminal anthropology. Their rehabilitative philosophy was consequently as double-sided as Brockway’s and infused with the influence of the eugenics movement. The indeterminate sentence particularly became a sorting mechanism to reform and release inmates while identifying, segregating, and punishing incorrigibles deemed immune to reform. Annual reports from State Boards of Charities (SBCs)—state agencies charged with overseeing state social and welfare institutions and making policy recommendations to state legislatures—indicate that indeterminate sentencing laws passed in New York, Ohio, Indiana, Illinois, and Pennsylvania during the nineteenth and twentieth centuries were designed with this dual purpose. Policymakers regularly cited Brockway, Boies, and other scholars to advocate for indeterminate systems designed to serve punitive and reformative ends. The incorrigibility idea had a unique political value, as its connection to rehabilitation permitted policymakers to defend reformative measures and punitive policy within a unitary rehabilitative framework. This allowed them to reap benefits for being both tough-on-crime and progressive.11
The deterministic disposition of criminal anthropology, the rehabilitative ideal, and the incorrigibility idea molded the criminal law into a tool of class control. Particularly, late nineteenth and early twentieth century anti-tramp statutes and convict-lease laws were designed to severely penalize offenders widely viewed as incorrigible. In contrast, individuals without criminal dispositions and viewed as unlikely to recidivate were sorted away from the prison. Ideas about incorrigibility and criminality reflected the uncritical perspective of an Anglo-Saxon upper class. With assumptions about their natural superiority legitimated through scientistic narratives, the notion that lower classes were inherently criminal became an indisputable conclusion.
During industrialization in the late nineteenth century, vagrancy laws were commonly revamped into punitive “anti-tramp” acts in the Northeast and Midwest. Vagrancy laws in industrial northern areas primarily served ideological and economic functions by punishing tramps and paupers. These terms had distinct meanings—“tramps” were homeless men wandering between cities in search of temporary labor, whereas “paupers” broadly refers to the poor—but they were commonly used interchangeably. Tramps and paupers were viewed as violating social norms by eschewing regular work, wage labor, and a family life and were seen as potential threats to political, social, and economic stability. The criminal repression of tramping in these regions punished those who lived in violation of middle-class norms.12
Overhauling of vagrancy laws was driven by political and ideological trends that varied geographically. For instance, southern vagrancy laws were essential parts of the Black Codes used to stock the convict-lease system. Police commonly arrested young black men en masse to serve the interests of southern industries seeking cheap labor, rendering convict-lease a system that served both economic and racial control functions.13 In conjunction with regionally unique dynamics, the spread of anti-vagrancy laws in both the North and South served broader projects of class control and were justified in important ways by the deterministic character of crime science and rehabilitation.
Links between economic class and crime were clear in Brockway’s work. He linked the disposition of the poor to criminality, suggesting that “habitual improvidence, with its attending poverty,” was a chief cause of criminal behavior.14 By connecting poverty and crime to a common biological constitution, tramping became an indicator of criminal propensities. Other scholars like G. Frank Lydston went further, claiming to uncover shared physiological defects between tramps and born criminals.15 Francis Wayland of Yale Law School, an acclaimed scholar of poverty, suggested that between 94 and 99 percent of tramps were inherently criminal. He described the tramp as “a lazy, shiftless, sauntering or swaggering, ill-conditioned, irreclaimable, incorrigible, cowardly, utterly depraved savage…Having no moral sense, he knows no gradations in crime.”16 This perspective linked poverty, unemployment, and criminality to a singular biological predisposition.
Henry Boies’ arguments particularly highlighted the class character of the rehabilitative ideational framework. He suggested that two classes of paupers existed: the physically and mentally impaired, and the “incorrigibly idle, dissolute, and criminal,” including “beggars, vagrants, and tramps.” He argued that paupers and tramps should either be “transformed into honest self-supporters” or incarcerated “for life” if they failed to complete such a transition.17 This provides stark insight into the rehabilitative ideal’s class ideology; “rehabilitation” meant transforming into a self-supporting worker, and failure to do so was evidence of incorrigibility warranting punishment.
American scholars had long tied crime and poverty together through biology. Richard Dugdale’s famous 1877 study of the “Juke” family in New York attributed the family’s history of poverty and criminality to features of their heredity.18 These connections between poverty, crime, and biology resurfaced in rehabilitative ideology, which validated these conclusions with scientific evidence and put them into practice through indeterminate sentencing, probation and parole, and statutory reform.
Late nineteenth century pushes for anti-tramp legislation were often bound up with political demands for punitive indeterminate sentencing laws. For instance, in 1892 the Ohio SBC stated in its defense of indeterminate sentencing that “indefinite sentences” were warranted for “all misdemeanants of the incorrigible class.”19 In 1896, Pennsylvania’s Board of Charities informed the state legislature that “better results would come from longer periods of detention” for paupers in discussing the benefits of indeterminate sentencing.20 At the 1892 National Prison Association Annual Meeting, Francis Wayland insisted on “the indefinite imprisonment of all habitual criminals, paupers, and drunkards,” highlighting how expansive definitions of criminality conflated crime, poverty, and incorrigibility.21
Earlier in the nineteenth century, tramps and paupers were generally subjected to short (often one-night) stays in police stationhouses.22 By the end of the century, over thirty-seven states revamped their vagrancy laws into punitive anti-tramp acts increasing the maximum terms of incarceration for tramps.23 By 1916, that number increased to forty-seven. Ten states authorized a maximum of a year or more of incarceration while Rhode Island and Ohio authorized up to three years behind bars for tramping.24
Some southern states authorized fines as a possible punishment for vagrancy in lieu of a prison sentence, generating an impression of lenience.25 But this reflected the connection between southern vagrancy laws and the convict-lease system. When young black men could not pay fines for vagrancy violations, their labor would be sold to whoever paid the fines. Thus, the convict-lease system promoted racial control while securing economic benefits for southern industries seeking cheap and controllable labor. The system was designed to ease the South’s transition out of a slave-based economy, and it was partly justified by the conclusion that black criminals were naturally irredeemable, inherently criminal, and could only contribute to society if compelled.26
As Khalil Muhammad has illustrated, race science was infused with ideas about innate black criminality in the Progressive Era, leading to racialized crime policy in the North as well as the South.27 Muhammad stresses the influence of Frederick Hoffman’s book Race Traits (1896), which used census data to highlight how the proportion of black crime outstripped the black proportion of the population. Hoffman concluded from the data that blacks had “a decided tendency towards crime.” His work powerfully combined white supremacist discourse, race science, and Lombrosian theory to reinforce fears that sexual aggression and violence were engrained into black men’s biology.28
These sorts of links between race, crime, and biology were common in the works of rehabilitative scholars. A case in point is Henry Boies’s Prisoners and Paupers. Boies included a chapter studying “The Negro Element of Increase,” in which he stated that, “The inbred habits of life, confirmed by generations of slavery, when all were the property of a master…have tended to utterly obliterate all consciousness of meum and tuum.” By suggesting that black men and women had no biological capacity to distinguish private property, Boies explained high rates of property crime committed by blacks as a biological phenomenon. He concluded that blacks are prone to crime due to a lack of “conscientious scruples to deter them.”29 Charles Henderson similarly explained the high levels of crime and poverty among the black population by claiming that, “The primary factor is racial inheritance, physical and mental inferiority, barbarian and slave ancestry culture.”30
This rationale was widely shared by race scientists and medical scholars explaining the challenges faced by southern penal practitioners. In 1891, Dr. Albert Henley informed the National Prison Association that, “We have difficulties at the south which you at the north have not…We have a large alien population, an inferior race…The Negro’s moral sense is lower than that of the white man.” He rationalized the convict-lease system on the grounds that blacks only work if compelled and that southern penologists “do not yet know” how to reform black crime.31
The writing of retired convict labor camp captain J.C. Powell provides a concrete example of how these ideas laid at the basis of the convict-lease system. In his memoir, Powell explicitly linked notions of black criminal incorrigibility to black labor potential. Powell wrote, “We have little material for skilled labor among the criminals of the South. The bulk of our convicts are negroes who could not by any possibility learn a trade, and how to employ them at anything save the simplest manual toil is a problem not yet solved.” Because black criminals had to be forced to work, were only capable of low-skill labor, and could not be meaningfully transformed into independent workers, the convict-lease system was designed to compel black criminals into work.32
Taxpayers and policymakers in the South were widely resistant to spending money to help “incorrigible” black offenders. In “Worse than Slavery” (1996), David Oshinsky discusses one Mississippi state legislator who pushed for reforms protecting juveniles from the convict-lease system at the turn of the century. However, the lawmaker faced significant pushback. His proposals were rejected by legislators who suggested that “it was no use trying to reform a negro,” leaving in place the convict-lease system as a means of controlling incorrigible black youths.33
Vagrancy laws solved several problems for southern Democrats by providing businesses with labor, maintaining racial control, and appeasing taxpayers. But while multiple dynamics facilitated the convict lease system’s design, assumptions about rehabilitative potential and biological proclivities for criminal behavior helped to rationalize it and populate it with black men. The influence of crime science and the rehabilitative ideal on anti-tramp laws and the convict-lease system reveals the broad political purchase of these ideas. Their class-skewed and deterministic dispositions served as fertile ground out of which varying species of prejudice could flourish.
Rehabilitative discourse legitimated systems of punishment and control over lower-class citizens by depicting their behavior as evidence of pathological dispositions, but laws targeting people who did not fit the anthropological image of the criminal were designed differently. A good example is a statute underappreciated as a criminal law, the Interstate Commerce Act of 1887 (ICA). The ICA created the Interstate Commerce Commission (ICC) to oversee the operations of railways. Its passage was a response to populist politics, agrarian frustrations, and outrage at the plutocratic class.34 The bill as initially proposed in 1877 contained strict criminal prohibitions on abusive rate-setting practices, but ideas about crime helped to water these provisions down before passage..35
Evolutionary themes shaped economic scholarship as well as crime discourse. The two ideologies synthesized classical economics and survival of the fittest in ways that rationalized rapacious capitalism, attributed inequality to the pathologies of the poor and superiority of capitalists, and depicted corporate criminals as sympathetic figures. Needless to say, that perspective resonated with the common sense shared by titans of industry like Rockefeller and Carnegie.36
Railroads and pro-business legislators brought this rhetoric to debates over the ICA. For instance, former Attorney General Wayne MacVeagh deployed this language to draw bright lines between street and corporate crimes. He stated during his committee testimony that criminal sanction should be reserved only “for some of the manifold forms of crime, in the ordinary acceptation of that term” but not the economic activities targeted by the bill.37
But the railroads’ capacity to distinguish street and corporate crimes rested on a more fundamental element of the railroads’ legislative strategy. Specifically, railroads re-oriented the debate about crime in the ICA. Railroads and their allies focused less on whether their agents and officers committed criminal acts and more on whether they were criminal types. This made the decision to criminalize railway executives’ behavior less a judgment of their actions and more a judgment of who they were as people.
A good case of how this strategy worked in action can be seen in the statements of Chauncey Depew. An attorney for Vanderbilt’s railroads at the time, Depew would later go on to serve as Senator from New York. But during his testimony on behalf of Vanderbilt during the ICA debate, Depew informed the House Committee that railroad executives were not like the “convicted thief” but were “as fair, as honorable, as reputable a class of our fellow-men…as any other” and “have outlived the penitentiary for mistakes.” 38 Nationally respected expert railway engineer Albert Fink was even more direct in his opposition to the bill’s criminal provisions: “[T]he evils encountered in the management of [railroads] in this country are not the result of any wickedness on the part of the American railroad managers.”39 These arguments were premised on the idea that corporate offenders did not need to spend time behind bars because they lacked the tendencies, traits, and dispositions criminal sanction was meant to punish or correct.
Many lawmakers, especially those aligned with business, agreed that railroad executives should be not punished by virtue of their characters.40 Roswell Horr (R-MI) condemned the law’s emphasis on criminal sanctions, stating that it would “take men who stand well among their neighbors, who are honored and respected by those who know them best, who are well spoken of by the entire community in which they live” and equate them with “‘cut-throats,’ or…‘naked, bald-headed robbers.’”41 Byron Cutcheon (R-MI) argued that it was wrong to punish “upright and enterprising men,” who had “never been accused in [their] community of being dishonorable.” And as Senator Edward Walthall (D-MS) pithily said of railway managers, “they are just like other men.”42 The emphasis on the clean behavioral histories, upright character, and “normal” dispositions of executives justified opposition to criminal punishment.
Debates about the ICA’s criminal provisions hinged less on whether executives did bad things and more on whether they were judged to be bad people. Framing the debate this way made for a stark contrast between railroad officers—men of high social standing without criminal backgrounds—and prevailing ideas of criminality. Corporate actions that could be reasonably compared to theft took on unique substantive meanings because they were committed by people who did not fit the image of the criminal type. Their behaviors were instead seen as rational responses to market dynamics and displays of healthy capitalist self-interest, not as manifestations of criminal dispositions. For example, John D. Kernan, chair of the New York Railroad Commission, argued that rate-setting abuses “relate to and are a part of…business” and should not be punished.43 George Richardson, president of the Northern Pacific Railroad, similarly stated that, “Sometimes the nature of trade is such that a man feels excused for being dishonest. It would be very difficult to enforce the [criminal] law.”44 By explaining executives’ actions as functions of market forces rather than personal dispositions, their behavior appeared less “criminal.”
Comparable claims were expressed on the floor of Congress. Senator Orville Platt (R-OH) stated that criminal sanction should be reserved for actions that were “inherently wrong” and that rate-setting manipulations were “necessary result[s] of the system” that ensured economic health.45 Edward Seymour (D-CT) also noted that “there must sometimes from the necessity of the case be rebates and drawbacks” and that criminalizing activity natural to the economy constituted “an attempt to make that a criminal offense which in the very nature of things ought not to be so made.”46
The ICA’s final text specified that any violation of the law was a criminal act, but importantly gave the ICC discretion to respond to violations through sanctions like injunctions or cease-and-desist orders instead of prosecution. Pro-business legislators were quick to support the commission after it was proposed in the mid-1880s.47 Presenting rate-setting abuses as appropriate responses to exogenous market forces justified support for the ICC as an alternative to prosecution for people who lacked criminal dispositions. It was argued that the commission would “be more potent to reform than fines or imprisonments” and would promote “righteous dealing” because corporate executives would be responsive to milder interventions.48 The ICC was thus granted the broad discretion to determine when an action was legal, illegal but undeserving of criminal sanction, or deserving of prosecution, despite the fact that the law explicitly stated that any violation of its provisions constituted a criminal act.49
Even if rate manipulations resembled theft or extortion in some ways, these actions were viewed as less criminal than street crimes by virtue of the traits of the perpetrators. The economically motivated businessman was an inversion of the born criminal—a virtuous and productive individual who should not be punished. The focus on punishing the criminal and not the crime turned debates over the ICA’s criminal provisions into a political choice about whether corporate executives were “bad people,” regardless of the nature or consequences of their actions. The prevailing interpretive understanding of the “corporate criminal” that emerged in contrast to prevailing ideas of “incorrigibles” and “born criminals” produced institutional arrangements that channeled corporate criminals away from the criminal justice system and into regulatory venues.
The Resurgence of Crime Science
Like its Progressive era iteration, contemporary rehabilitative discourse aims to fix individuals while leaving in place social structures that perpetuate disadvantage, all the while relying on class-biased assumptions informed by scientific analyses about who is likely to recidivate. But the premise that reforming individuals can reduce crime obscures the deeper structural forces that contribute to criminal behavior, like failing schools, a dearth of jobs, and socioeconomic inequality. This renders the policy implications of rehabilitative ideology consistent with neoliberal political commitments.
Neoliberal rationality reproduces citizens as entrepreneurial economic actors that are compelled to cultivate their human capital in order to survive. The tenets of human capital theory—that one’s knowledge, skills, and attributes determine one’s potential capital accumulation—have driven the metastasization of neoliberal politics to all aspects of human life.50
The idea that crime can be “cured” through individual interventions mirrors these principles. Rehabilitating someone’s personal pathologies and criminal tendencies equates to improving their human capital and masks the structural inequalities that help drive criminality. It serves what Loïc Wacquant has called the process of “deadly symbiosis” through which patterns of urban segregation and deprivation work in tandem with the penal system to repress an increasing subproletariat.51 Ultimately, if crime can be fixed by rehabilitating people before they return home, there is no need to address the problems where home is.
Jeffrey Reiman’s claim that the penal system is designed to ensure that “the rich get richer and the poor get prison” is served by the science of crime and rehabilitation. 52 Labels like “habitual criminal,” “career criminal,” and “three-strikes offender” reflect assessments about reformative capacity and disproportionately stigmatize the poor.53 Contrastingly, while judges and prosecutors view deterrence as paramount in white-collar cases, favorable impressions and preconceived notions about white-collar criminals check their impulse to punish such “respectable” offenders. They often conclude that white-collar criminals are unlikely to recidivate, have suffered enough, and have contributed to their communities in ways that mitigate their crimes.54 As they did in the nineteenth century, ideologies about who is likely to recidivate and reform shape the class profile of those subjected to the state’s most severe penalties.
Several analyses suggest that the lenient treatment of white-collar crime is rooted in Reagan-era politics.55 Scholars claim that financialization of the economy since the 1980s has glorified the pursuit of profits through illicit means and rationalized corporate crime as a social good.56 The idea that white-collar offenders are morally upright, enterprising, and less “criminal” than street offenders is not new, but it is true that the neoliberal moment and celebration of market ideologies has amplified these biases.
The rehabilitative ideal thus fuels a circular logic. Conceptualizing criminality as a function of personal pathologies puts the onus for reform on individuals, justifies welfare retrenchment and carceral expansion, and produces disadvantaged neighborhoods conducive to crime. Meanwhile, white-collar offenders not seen as needing rehabilitation cannot be deemed incorrigible and remain insulated from the ideal’s punitive prong. By reserving the most severe sanctions for offenders deemed naturally criminal, the scientific calculus of punishment decisions shapes the class makeup of the prison population.
Several scholars have posited that there is a connection between the prevailing governing ideologies of a moment and simultaneous patterns in criminological research.57 As a result, the current revival of bio-criminology should be considered in conjunction with the consolidation of neoliberalism. Bio-criminology connects criminal behavior and poverty to a common set of immutable biological traits, thus accentuating the idea of incorrigibility, the class ideologies of the rehabilitative ideal, and corresponding elements of neoliberal thought. As Stephen Jay Gould has said, “Resurgences of biological determinism correlate with periods of retrenchment and destruction of social generosity.”58 The attribution of criminal behavior to innate pathologies serves neoliberal imperatives by rationalizing the denial of social assistance to disadvantaged groups while justifying their punishment and containment.
The roots of bio-criminology’s resurgence can be dated to the 1960s and 1970s, when research on XYY “Super-Males” purported to identify links between violent crime and the male Y chromosome. Although the theory was debunked, it sparked a global resurgence in biological studies of crime.59 The 1980s witnessed a burst of adoption studies and cross-cultural analyses looking for links between crime and genetics.60 A particularly famous study in bio-determinism came in 1994 in Richard Herrnstein and Charles Murray’s The Bell Curve. The Bell Curve not only concluded that IQ is genetically determined, but also resolved that racial differences in IQ are hereditary, behaviors associated with IQ have a genetic basis, and that IQ is the most important predictor of criminal behavior. By arguing that criminality was heritable through IQ and that racial differences in IQ are genetic, Herrnstein and Murray’s work suggested that certain races are genetically predisposed to crime.61 Their core arguments resemble early-twentieth-century race science, a disciplinary relative of eugenics that sought to order the human race into hierarchies of naturally occurring racial types.
The Bell Curve showed how bio-deterministic analyses of human behavior serve the ends of neoliberal governance. Herrnstein and Murray claimed to identify ceilings on how much people can cultivate their skillsets, improve their employability, enhance their intelligence, or alter their behavior. Their work attributed the causes of crime and poverty to a shared biological basis that is nearly impossible to transcend, justifying state neglect of high-crime disadvantaged communities.62
Contemporary bio-criminological scholarship advances comparable ideas. For instance, neurological scholar Adrian Raine argues in his 2013 book The Anatomy of Violence that connections exist between violent crime and neurological defects such as a dysfunctional prefrontal cortex or a hyperactive amygdala, hippocampus, or thamalus. But the book goes beyond connecting crime to neurology by reexamining other ideas like XYY theory and the hypothesized relationships between low heart rates and crime. He concludes that crime has a genetic basis, at one point comparing the heritability of criminality to that of cancer.63 Other scholars have recently contributed to this literature by attributing crime to heart-rate patterns, psychophysiological traits, and genetics.64
Like The Bell Curve, The Anatomy of Violence also connects crime to class. Raine repeats that crime is a “biosocial” phenomenon in which a combination of biological and social forces engenders criminality, making his book appear more nuanced than Herrnstein and Murray’s. Some of the social factors he discusses deserve attention, such as correlations between crime and lead exposure and early childhood trauma. However, upon scrutiny, many of the other social factors he identifies as causing crime stigmatize racial minorities and the urban poor while ignoring larger social and economic problems in American society. For example, some of the social factors he claims foster crime in juveniles are an unstable home life, inadequate parental supervision, and frequent changes in parents’ marital status. He says this without exhibiting a full understanding of the political, social, and economic roots of these trends, going so far as to make the not-so-subtle eugenic proposal to require people to obtain state licenses to reproduce in order to prevent parental neglect or the passing down of deviant tendencies to children.65
Attributing criminal behavior to parents having strained relationships with their children or “not being around” avoids addressing uncomfortable realities about why so many low-income parents are absent from their family’s lives. These include the need to work multiple jobs, higher death rates among the urban poor who lack adequate health insurance, and higher rates of incarceration among black and low-income populations. Raine does not unravel these nuances in discussing parental absenteeism. As a result, the social risk factors he links to crime fail to recognize how disadvantage is produced. His proposed punitive interventions would likely only exacerbate these social risk factors.66
It is unsurprising that biological studies of crime generally focus on the same varieties of street crime that eugenicists and criminal anthropologists focused on over one hundred years ago. What is more surprising is the publication of research documenting the biological makeup of white-collar offenders. The little work done in this regard has produced findings that reinforce perceptions of white-collar criminals that have dominated political discourse from the 1880s through today. A 2011 study by six co-authors, including Raine, compared the brain functionality of 21 white-collar offenders with 21 matched controls on factors like age, gender, and general level of criminal offending. The authors concluded that “white-collar criminals have better executive functioning, enhanced information processing, and structural brain superiorities” in comparison to blue-collar offenders.67 The article is not intended to present white-collar criminals in a flattering light, but it creates a noticeable contrast from the image of pathological deviance commonly associated with criminality. It emphasizes traits that could reinforce the tendency for criminal justice practitioners to mitigate white-collar criminals’ sentences based on positive impressions of their character and personal nature. It buttresses harmful conclusions that have become common sense about the natural inferiority and criminal tendencies of lower-class offenders.
The history of the eugenics movement highlights how quickly bio-determinism can escalate into abusive policy.68 It underscores the dangers that could come from scientistic scholarship overstating itself empirically and normatively, especially if those conclusions are connected to broad policy proposals. The fields of neurology and genetics are both at relatively nascent stages; for example, roughly 98 percent of DNA is classified as “junk DNA” that geneticists have not been able to connect to specific functions. It is rash to make policy proposals based on conclusions about human behavior drawn from an analysis of 2 percent of the human genome.
By cloaking debatable empirics in sophisticated scientific terminology, scholars in the hard sciences are able to insulate their work from critical perspectives, allowing them to overextend the conclusions that can be drawn from their data.69 For example, after making qualifications about junk DNA and the small statistical relationships many of the factors he examines have to crime, Raine makes sweeping policy proposals.70 Some are unobjectionable—like early childhood programs encouraging healthy diets and exercise—but others are unsettling. His book’s final chapter describes a hypothetical state that uses data on citizens’ brains, genetics, and physiology to predict their criminal tendencies. In addition to parental licensing, he proposes screening children at the age of ten and subjecting them to compulsory biosocial therapy if they test positive as a criminal risk and preemptively detaining adults determined to be high-risk criminal threats. He defends this by claiming that the state already engages in preemptive detainment at institutions like Guantanamo Bay.71
Deterministic constructs of criminal behavior have not been limited to intellectual circles, as similar ideas have been used to rationalize punitive policies in political discourse. The fear of young “super-predators” in America’s poor urban black communities contributed to the promulgation of punitive criminal justice policies for juveniles in the 1990s and early 2000s.72 Over the past ten years, both the California Department of Corrections and Rehabilitation and district attorneys in Tennessee illegally coerced inmates and defendants into sterilizations. Both incidents prompted disciplinary responses from the states, but also highlight emerging support for eugenic criminal justice practices.73 In fact, at least one county in Tennessee reversed course in May of 2017 by authorizing a program in which male and female inmates can voluntarily undergo elective birth control treatments to reduce their sentences by thirty days.74 At least nine states currently allow for the chemical or surgical castration of sex offenders.75
Since bio-criminological research claims to find immutable causes of criminality, it validates the idea of incorrigibility built into rehabilitative thought. The conclusions of recent biological studies linking crime to poverty ensure that any anxieties about incorrigibility will be narrowly focused on specific classes of criminals as targets for repressive interventions. The historical connections between eugenic and rehabilitative ideologies provide a warning; the contemporary increase in support for eugenics will likely be exacerbated by a revival of rehabilitative discourse.
Social, political, and material inequalities have long been at the foundation of American crime policy. What has gone unappreciated by scholars and reform-oriented policymakers and activists is how those inequalities have been embedded into the science of crime and, consequently, into rehabilitative logic. Late-nineteenth- and early-twentieth-century debates about the causes of criminal behavior and the best ways to respond to it share affinities with similar debates going on today. Ideologies about natural criminality, biological predispositions, and predictive containment color the politics that have driven mass incarceration just as they drove punitive politics earlier in the century.
The historical record is clear. When a veneer of science and empirics is used to legitimize social inequalities, it provides crime politics with the same punch-line eugenics research provided earlier in the century—that incorrigibles require segregation. Historical continuities in the science of crime have naturalized distinctions of criminality through a two-pronged project of class control called the “rehabilitative ideal.” Through rehabilitative philosophy, the state to has been able to compel the “reformable” offenders into ascribing to the market while incapacitating those deemed naturally irredeemable. And the state has been able to do all of this in the name of a progressive and forward-thinking faith in scientific expertise.
Rehabilitative ideology’s abusive class-skewed logic has been hidden for too long underneath layers of scientistic clothing. Time and again, scholars and theoreticians of crime have successfully rationalized the “rehabilitative ideal” and its reciprocal “punitive ideal” by masquerading ideology as empirics. From Brockway to Raine, the science of crime has validated the superiority of a white, Anglo-Saxon upper class. It has provided empirical “proof” that populations that offend bourgeois sensibilities are natural criminal types and that it is right to keep them out of sight and out of mind. Crime science has ensured that the label of criminality can be used as a catchall receptacle into which any undesirable population can be discarded. It is these scientistic narratives that have maintained the marriage between an ostensibly liberal rehabilitative discourse and the criminal justice system’s class control functions by disguising upper-class biases and prejudices as facts.
This illuminates important historical connections between race and the historical development of the carceral state. In the late nineteenth and early twentieth century, race scientists aimed to hierarchically organize the human species into varying tiers of “racial types” ordered by superiority. Much like the discipline of race science, crime science presented the criminal as a naturally occurring and defective phenomenon. But the natural criminal category has since been populated with members of different “inferior” racial categories over time. A century ago, scientific racism presented blacks, Italians, Irish, and dozens of other racial categories as variants of the criminal type. Today, work by scholars like Herrnstein and Murray is little different, advancing arguments about the inherent criminality of certain racial minorities. The science of race has long worked in tandem with the science of crime to justify social control over marginalized groups. Racial categorizations have always been used to mark gradations of inferiority and criminality indicating which populations need to be most closely regulated and punished by the state.
Built on scientistic theory, the rehabilitative ideal espouses a class-skewed conception of what counts as “crime” and who counts as a “criminal.” This has had counterintuitive implications for upper-class white-collar offenders. Since white-collar criminals do not fit the image of the criminal type in need of rehabilitation, they cannot be scientifically proven as incorrigible. They do not need to be compelled into working. They do not require sterilization to prevent their pathologies from infecting the gene pool. And they are consequently not subjected to enhanced punishments for committing repeat offenses, because their behavior is attributed to exogenous forces rather than innate defects. White-collar criminals are difficult to punish for many reasons, but in surprising ways, the exclusion of white-collar crime from rehabilitative discourse and crime science has benefitted them. This reflects how the broader class control functions of the criminal justice system have been buttressed, not countered, by rehabilitative logics and efforts to link punishment to science.
To an extent, rehabilitative programs like educational interventions or vocational training can have value on their own merit. But it is problematic when they are treated as panaceas to crime and substitutes for broader political economic reform rather than simply as the right thing to do. It is unlikely that they will be embraced on their own worth given that contemporary discourses about crime, rehabilitation, and science promote the same class project they did earlier in the twentieth century. Rehabilitative interventions are still presented as crime reduction tools rather than public welfare measures and inherently good policy, and responsiveness to rehabilitation remains part of the scientific calculations about punishment that can enhance or decrease a sentence.
An education or vocational training received behind bars has little value for offenders who return to communities with no schools, jobs, or assistance from the state. But framing discourses about crime and rehabilitation within scientistic explanatory schematics hardens class distinctions created by problems like generational poverty and state withdrawal. If the state does not create tangible avenues for social and economic mobility in poor high-crime communities, it is unreasonable to think that reforming individuals will lead to robust positive change. The validation of lower-class inferiority through science justifies individual level micro-interventions as alternatives to meaningful state attention to poor high-crime communities.
Rehabilitative measures mean little without broad ranging political economic reforms. But in conjunction with crime science, the rehabilitative ideal absolves the state of any responsibility to pursue the broad ranging political economic reforms necessary to make a tangible difference in most offenders’ lives. Absent reforms addressing the structural causes of inequality, a revival of rehabilitative ideology will probably not make a dent in the carceral state or promote meaningful change in the lives of its most frequent victims. Given the ongoing resurgence of crime science, rehabilitative discourses will likely encourage a doubling down on punitive politics.