Habitual Criminal Laws and Eugenics: Meeting with Daniel Loehr, author of amicus brief sent to the CO Supreme Court
Tara*, a senior at Yale, writes about the amicus brief written by Daniel Loehr for the Colorado Supreme Court, which is about eugenics and habitual criminal laws.
*Tara Bhat ‘25 (she/her) is a senior at Yale University, majoring in Political Science.
Last month, members from the AECY met with Daniel Loehr, a clinical lecturer at the Yale Law School whose recent work lies within the intersection of law and the history of eugenics. In the spring of 2024, Loehr filed an amicus brief with the Colorado Supreme Court for the case Ward v. the People of Colorado. The case revolves around a man who was charged under a habitual criminal law with life in prison for robbing an ice cream store. For the past 31 years, he has been incarcerated, and this case asks the court to reconsider his sentence based on the decision in a 2019 Colorado case, Wells-Yates v. People. In Wells-Yates, the court ruled that judges should pay attention to Colorado’s evolving standards of decency when deciding upon punishments. In Loehr’s amicus brief, he showed just how much criminal legal standards have “evolved,” by illuminating the deep roots habitual criminal laws have in the eugenics movement, and how they continue to exist because of subscription to eugenic logics.
The brief maps the history of habitual criminal laws and their connections to the eugenics movement, providing historical context for laws that continue to be in use today. Loehr and his research assistants searched through archives and historical statutes in each state, finding that the first habitual criminal law in Colorado was passed in 1929, near the height of the eugenics movement in America. Just four years later, the Nazi Party in Germany passed the Law Against Dangerous Habitual Criminals. Both laws rely on the eugenic idea that “criminality” is a heritable trait that poses a threat to the future of the citizenry. To prevent the passage of “criminality” and other traits thought to be inherited, like “pauperism” and “feeblemindedness,” eugenicists advocated for forced sterilization, restricted marriage laws, and institutionalization in state asylums. In Connecticut, Governor Wilbur Cross commissioned the Survey of Human Resources of 1936, a report that analyzed the citizens of Connecticut and divided them into groups of those deemed to be fit and unfit citizens. The report included a plan to sterilize close to 200,000 Connecticut residents who were deemed unfit to contribute to the future of the state. Habitual criminal laws, which allowed life sentences for individuals who committed three criminal acts, were another method to prevent reproduction and restrict the freedom of people deemed to be unfit.
Loehr points out that the laws in Germany were abolished, while those in Colorado, under which the subject of the case was sentenced, still live on. In his brief. Loehr starts with an introduction to Cesare Lombroso and his theories of criminology which were all steeped with eugenical ideas. An Italian criminologist in the late 19th century and considered the “father of criminal anthropology,” Lombroso was one of the first criminologists to claim that crime was innate. Lombroso’s main theory was that crime was atavistic, meaning that people who were criminals’ development stopped at an earlier stage than “non-delinquent” people, making them a less evolutionary advanced class of people. Lombroso’s work was informed by his analysis of the anatomical characteristics of criminals. He conducted studies of hundreds of criminal skulls and compared these to “pre-historic” skulls, noting shared features such as “prominence of the superciliary arches” and “diminution of the capacity of the skull. Lombroso posited that while social and environmental conditions could impact crime, the “ultimate roots of crime lie in the atavistic and degenerate heredity” of the criminaloid, and Lombroso argued that 40% of criminals were “born” criminals. As Loehr put it, “40 percent were criminal at the species level.” The criminal was its own fixed, determined type, and the only remedy for crime was to destroy its roots completely. Although his ideas have now been discredited, Lombroso’s work had wide reach and material impact on the field of criminology, influenced later eugenic thought, and, as the amicus brief makes clear, the criminal legal system today.
The brief then goes on to show the numerous groups and people who endorsed and advocated for these ideas, including Supreme Court Justice Oliver Wendell Holmes, professors at Yale University and the Dean of Yale Law School, and even physicians. The eugenics movement was not just on the fringe, but taken up and advocated for by those with great power, including President Theodore Roosevelt, who wrote about how he saw a great need for sterilization. Eugenicists across the country advocated for longer prison sentences, sterilization campaigns, and marriage restrictions. From the 1900s to the 1930s, habitual criminal laws were passed from state to state, acting as one of the eugenicists’ powerful tools.
Along with the amicus brief in Colorado, Loehr hopes to submit more amicus briefs to other states with laws from the eugenics era, and has already submitted another in Colorado for a different case. He has also been sharing his work with legal practitioners and public defenders, hoping that the historical context of these laws will inform their work. Loehr’s work and his amicus brief call attention to the “eugenic sites” extant in the legal system, and showcase forward-moving anti-eugenic work that will hopefully help to spur reform in the criminal legal system.