Issue 24: The Eugenics Origins of “Habitual Offender” Sentencing Laws

March 29, 2024 By Kyle C. Barry

What You’ll Read:

  • Vacancies & Elections: In Michigan, a regressive voice on state constitutional rights won’t seek reelection; the South Carolina Supreme Court tilts rightward with a new chief justice
  • Spotlight: The Eugenics Origins of “Habitual Offender” Sentencing Laws
  • Alaska & Minnesota High Courts Restrict Police Searches & Seizures
  • A World Without Qualified Immunity: Colorado Woman Wins $3.76 Million Verdict For Violations of State Constitutional Rights
  • More Coverage of the Pennsylvania state constitutional challenge to death-in-prison sentences for felony murder

Vacancies & Elections

  • With partisan control of the state supreme court at stake, Michigan Justice David Viviano, one of three conservative justices on the 7-member court, will not seek reelection. That leaves Democratic-appointee Justice Kyra Bolden as the only incumbent in the race. Viviano and Justice Brian Zahra have been regressive voices on state constitutional rights against excessive criminal punishments. They previously said they would “accept [prosecutors’] invitation to revisit … case law” interpreting Michigan’s antipunishment clause, which bars “cruel or unusual” punishment, as providing “greater protection than the Eighth Amendment of the United States Constitution.” Michigan will hold one race for two seats, and if “two Republican candidates win the most votes this November, the court would swing to a 4–3 Republican majority.” [State Court Report]
  • In South Carolina, the state legislature elected State Supreme Court Justice John Kittredge as the state’s next chief justice. Kittredge will replace Chief Justice Don Beatty (a former Obama-nominee to the U.S. District Court for the District of South Carolina) who hits retirement age this year.  “Kittredge’s ascension … represents at least a subtle shift on the court from an era of justices like Beatty … who were more willing to push back against South Carolina’s powerful Legislature,” the Post & Courier reports. “Over Kittredge’s 15-year tenure on the high court, he’s been more deferential to the Legislature and more of an originalist than his immediate predecessors.” Kittredge’s move to chief justice will also create a new vacancy for the state legislature to fill. 

The Eugenics Origins of “Habitual Offender” Sentencing Laws

In Colorado, the state supreme court will soon decide to what extent recent reforms to the state’s so-called “habitual offender” sentencing law undermine the constitutionality of sentences previously imposed under that law. The court has already held that legislative changes toward leniency indicate critical “evolving standards of decency” under the state constitution, and it will now consider if that holding applies retroactively, to people whose cases are otherwise final. 

But an amicus brief in that case shows that even more is at stake: Whether Colorado will continue to enforce prison sentences grounded in abhorrent eugenics theory, thereby endorsing methods of social control that are synonymous with Nazi Germany. 

“The Nazi party rose to power in Germany in January 1933. Within a year, the party had passed the ‘Law against Dangerous Habitual Criminals,’ which permitted life sentences for individuals who committed three criminal acts. Four years earlier, in 1929, Colorado passed its first ‘habitual criminal law,’ which, just like the Nazi law, permitted life sentences for individuals who committed three criminal acts,” writes Daniel Loehr, a Lecturer in Law at Yale Law School. “The synchroneity of these two laws is no fluke. Both emerged from the same movement—the eugenics movement—which was flourishing around the world in the early to mid-1900s.”

This chilling history is largely ignored even among reformers, perhaps because their focus is on the modern “three strikes” laws that supercharged mass incarceration— especially the California version, first passed in 1994, that The New York Times once called “the opening salvo” of what “would become the ‘The Three Strikes and You’re Out’ movement.” In reality, though, American habitual offender laws—a tandem of sterilization and life-in-prison mandates—date back more than 100 years.

Loehr’s brief documents the 19th century origins of eugenics theory and its wide adoption among legal and medical professionals in the United States. Its adherents included legal luminaries Oliver Wendell Holmes and Benjamin Cardozo, who argued that criminality spread like a contagious disease:

In a 1929 lecture, [Cardozo] described the ‘class’ of criminals as ‘defectives’ and held that their ‘redemption is hopeless.’ Quoting a doctor, he elaborated that, ‘for a large proportion of criminals . . . the percentage has yet to be determined . . . punishment for a period of time and then letting him free is like imprisoning a diphtheria-carrier for awhile and then permitting him to commingle with his fellows and spread the diphtheria germ.’

That same year, a law review article explained that “the criminal is a special type of individual capable of an accurate description as a species.”

To combat this perceived problem, American policymakers primarily pursued a combination of sterilization and permanently segregating people from society. A 1923 textbook, for example, said in a chapter on “The Defective Criminal” that “permanent segregation. . . may be the kindest and most efficient form of treatment.’” President Theodore Roosevelt took a different view:

In 1913, in a letter to the prominent eugenicist Charles Davenport, Roosevelt wrote: ‘we have no business to permit the perpetuation of citizens of the wrong type.’ His preferred method for halting that perpetuation was sterilization. ‘I wish very much,’ he wrote, ‘that the wrong people could be prevented entirely from breeding; and when the evil nature of these people is sufficiently flagrant, this should be done. Criminals should be sterilized and feeble-minded persons forbidden to leave offspring behind them.’

The result, Loehr writes, was a “wave of habitual criminal laws” between 1900 and the 1930s.  

New York passed “one of the earliest and harshest habitual criminal sentencing laws” in 1907, with supporters citing leading eugenicist theorists and arguing that “habitual criminals are a ‘distinct class’ in need of permanent segregation.” States across the country followed suit, and “between 1920 and 1930, 23 adopted eugenically-motivated habitual offender sentencing laws.” Among these, Loehr writes, was Colorado.

In Colorado, permanently locking people away was something of a compromise, with the governor first vetoing a sterilization bill before signing the habitual offender sentencing law. 

One of the [habitual sentencing] bill’s advocates, Representative Annah G. Pettee, spoke of her disappointment with the Governor’s veto of the 1927 sterilization bill, describing the veto as ‘the tragedy of the session.’ Simultaneously, she warned of the ‘rapid increase of the insane, feebleminded and habitual criminal classes.’

Importantly, while Colorado’s law has been amended numerous times, people are still serving life terms under provisions that date back to the original 1929 law. One such person, David Ward, is currently before the state supreme court, seeking relief from two mandatory life sentences that he received in 1993. Ward could not receive anywhere near such extreme punishment if he committed the same offenses today—a fact that is central to his state constitutional claim—but his sentence is not simply antiquated. It is the product, Loehr writes, of a “sentencing framework … motivated by a eugenic desire to eradicate the perceived subspecies of ‘habitual criminals,’” and court rulings that leave it in place express “an endorsement of these motivations.” [Read the Brief | Case Docket]

Alaska & Minnesota High Courts Restrict Police Searches & Seizures

In a ruling that protects privacy rights against advancements in surveillance technology, the Alaska Supreme Court held that the state constitution requires police to get warrants before taking photos of people’s yards with a zoom lens while flying overhead in an airplane:

The Alaska Constitution protects the right to be free of unreasonable searches. The fact that a random person might catch a glimpse of your yard while flying from one place to another does not make it reasonable for law enforcement officials to take to the skies and train high-powered optics on the private space right outside your home without a warrant. Unregulated aerial surveillance of the home with high-powered optics is the kind of police practice that is inconsistent with the aims of a free and open society. The Alaska Constitution does not allow it.

The court emphasized how the state constitutional analysis differs from the federal Fourth Amendment, and is uniquely concerned with protecting “a free and open society”: 

Our approach to interpreting the Alaska Constitution is qualitatively different than federal courts’ approach to interpreting the U.S. Constitution. In contrast to federal doctrine, whether a particular expectation of privacy is objectively reasonable under the Alaska Constitution entails a value judgment whether, if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a [degree] inconsistent with the aims of a free and open society. This judgment is influenced by the fact that the Alaska Constitution, unlike the federal constitution, explicitly recognizes and protects the right to privacy. We therefore give section 14’s protection against unreasonable searches and seizures a liberal interpretation  that increases the likelihood that a person’s expectation of privacy can be deemed objectively reasonable.

[Alaska Beacon | Full Alaska Supreme Court Opinion]

Meanwhile, the Minnesota Supreme Court used its state constitution to limit the “good faith exception” to the warrant requirement—an exception that allows prosecutors to use evidence obtained illegally if the investigating officers were working in good faith. In this case, police arrested a woman based on a warrant that had been quashed, but that appeared active to police officers due to a clerical error by court personnel. Although the U.S. Supreme Court has endorsed the good-faith exception for Fourth Amendment violations of exactly this sort, the Minnesota high court declined to do so under the state constitution. The court reasoned that, “in addition to the central object of deterring unlawful police conduct, we recognize other purposes served by” excluding illegally obtained evidence, “including the related goal of more generally deterring unlawful government conduct.” [Full Opinion | State Court Report

Colorado Woman Wins $3.76 Million Verdict For Violations of State Constitutional Rights

In 2020, Colorado enacted a new law that uses state courts and state constitutional rights to circumvent the scourge of “qualified immunity” —the U.S. Supreme Court-made rule that shields even horrific police abuses and civil rights violations from federal lawsuits. The Colorado law allows people to sue for violations of their state constitutional rights, and states explicitly that “qualified immunity is not a defense to liability.”

Earlier this month, a 78-year-old grandmother used that law to win a $3.76 million jury verdict after a Denver SWAT team raided her home. The ACLU of Colorado explains

On January 4, 2022, a DPD SWAT team ransacked Ms. Johnson’s home of 43 years based on an alleged location ping from an iPhone’s “Find My” app that the officers did not understand and for which they had no training. Ms. Johnson lived alone in her Montbello home and was in her robe, bonnet, and slippers when she was subjected to the terrifying police raid. Donning body armor and automatic weapons, police officers searched Ms. Johnson’s home for stolen items from an incident that she had absolutely nothing to do with.

“This is a small step toward justice for Ms. Johnson, but it is a critical case under our state’s Constitution, for the first time affirming that police can be held accountable for invading someone’s home without probable cause,” said Tim Macdonald, ACLU of Colorado Legal Director.

More Coverage of Commonwealth v. Lee, the Pennsylvania state constitutional challenge to death-in-prison sentences for “felony murder,” from Bolts

In a major case involving state constitutional rights against excessive punishments, the Pennsylvania Supreme Court recently agreed to decide if mandatory life without parole sentences for people convicted of felony murder (known as “second degree” murder in the state) violate the state’s ban on “cruel” punishments. Such cases involve people who neither killed nor intended to kill anyone, but were still held responsible for murder and sentenced to death by incarceration. Indeed, the man bringing this case, Derek Lee, was in another room when his accomplice in a burglary shot and killed the homeowner.

Lee spoke to Bolts about the case:

“With the recent development at the supreme court,” Lee told Bolts in an email last week, “many [people] have been sharing with me how this possibility has restored a [sense] of hope in their life to have another chance at freedom.” He added: “It’s easy for us to throw people away. But if somebody is putting in the work to truly transform and can be useful to society, families and communities, then why not use that person? I believe in redemption if somebody has done the work.” 

[Read More In Bolts Magazine]