The Eugenic Origins of Three Strikes Laws: How “Habitual Offender” Sentencing Laws Were Used as a Means of Sterilization

Introduction

“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.¹ 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.² 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.³ 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.”⁴ 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.”⁵

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.⁶ 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.

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.⁷ 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. And the movement was not limited to the United States. When the German Nazi party came to power in 1933, they passed a “habitual offender” law nearly identical to the American versions within a year.⁸

After World War II, Germany repealed its “habitual offender” law, but the same did not happen in the United States.⁹ While eugenics fell into disrepute as a matter of theory, and while certain programs of eugenics have been repealed, repudiated, and even apologized for, habitual criminal laws have endured throughout the United States. Some statutes have remained on the books with few amendments since the early 1900s, while others have been amended to increase or decrease sentences in relatively small ways. Today, despite being a legacy of the eugenics movement, “habitual offender” laws are in force in 49 states.¹⁰

Early Eugenic Ideas About “Habitual Offenders”

When the term “habitual criminal” first came into common use, the word “habitual” meant something different than it does today. Today, “habitual” means “of the nature of a habit,” but as late as 1951, the Oxford English Dictionary defined “habitual” as something that is “inherent or latent in the mental constitution.”¹¹ Thus, according to that definition, a “habitual offender,” as the term was understood in the early 1900s, was a person whose criminality was “latent in their mental constitution.”¹² In other words, “habitual offender” was not understood to mean someone that repeatedly committed crimes, but rather someone who contained criminality in their being.

This conception of “habitual offender” as inherently criminal was constructed by scholars in the late 1800s. Key among those scholars was Cesare Lombroso, a medic-turned-writer from Italy, who gathered human skulls from battlefields and measured and compared them against crime records.¹³ Based on his studies, he claimed that for at least 40% of people who committed crimes, criminality was inherited and incurable.¹⁴ He thought this because he claimed to be able to see criminality physically manifested in the shape of the skull. Because such a feature was immutable, he believed that criminality was incurable and that it was “easier to transform a dog into a wolf than a thief into a gentleman.”¹⁵

Lombroso’s theory also linked the idea of the “habitual offender” to race. In addition to describing the criminality of “darker” southern Italians, Lombroso turned his attention to the United States. “I cannot avoid pointing out” he wrote, how skull features of people who committed crimes, “correspond to characteristics observed in normal skulls of colored and inferior races.”¹⁶ He thus asserted that people of color and Black people in particular suffered from the same genetic inferiority as “criminals.” Both groups, he claimed, had similar skull features that were both inherited and associated with criminality. Lombroso’s racialized theory of the “habitual criminal” was consistent with the racialized nature of eugenics more broadly, in which Black people were often targeted. For example, states began to enact laws preventing white people from marrying Black people so that “any hereditary defects of black[ people] would remain with them – and not corrupt the white race.”¹⁷ In another example, prominent University of Virginia eugenicist, Harvey Ernest Jordan, helped mount campaigns for forced sterilization “for the protection of society against distressing economic and moral burdens and racial decay.”¹⁸

Lombroso’s book Criminal Man was published in 1876 and Americans embraced and amplified his theories soon after. In the late 1800s, a decade after the publication of Lombroso’s research, Simeon Baldwin, a Yale professor and eventual Governor and Supreme Court Justice of Connecticut, published a paper called “How to Deal with Habitual Criminals” in which he endorsed Lombroso’s view that children are “bred” into crime.¹⁹ That same year his colleague Francis Wayland, the Dean of Yale Law School, compared criminality to smallpox and argued that “criminals” must be segregated to keep them from spreading their “disease.”²⁰

The historical record shows a prevailing belief in the early 1900s that criminality was inherited for some portion of people who committed crimes.

These theories reached from academia to the highest levels of the American judiciary. In 1897, Supreme Court Justice Oliver Wendell Holmes wrote: “If the typical criminal is a degenerate, bound to swindle or murder by as deep seated an organic necessity as that which makes the rattlesnake bite…he cannot be improved.”²¹ Thirty years later, he introduced these sentiments into a Supreme Court opinion, writing in Buck v. Bell that, “[i]t is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.”²²

His colleague, Justice Benjamin Cardozo, declared in 1929 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 [sic] and then permitting him to commingle with his fellows and spread the diphtheria germ.”²³

Lombrosian theories were also endorsed by members of the medical community. One doctor, for example, who had read a translation of Lombroso’s Criminal Man, described in 1887 “the criminal as a distinct type of the human species.”²⁴ Along similar lines, another doctor wrote in 1892 that “the instinctive criminal is an abnormal and degenerate type of humanity.”²⁵

Across disciplines, the historical record shows a prevailing belief in the early 1900s that criminality was inherited for some portion of people who committed crimes. As professor of psychology Dr. Winfield Hall summarized in 1914: “That a criminal father should beget a child pre-destined to criminality is a foregone conclusion.”²⁶ This basic belief would have drastic consequences for the future of sentencing law.

From Eugenic Ideas to “Habitual Offender” Laws

The belief that criminality was a heritable trait prompted calls to identify “habitual criminals” and prevent them from reproducing. “The extinction of the criminal class,” wrote Charlton Lewis, the President of the Prison Association of New York, “is an ideal to be kept in view, just as the elimination of disease must be the perpetual aim of medical sciences.”²⁷

Though there was agreement in the goal of extinguishing the “criminal class,” eugenicists debated which tool would best accomplish that goal. One law review article bluntly surveyed the tools available, writing in 1914 that:

the following methods have been suggested for removing individuals with innately defective strains:

1. Life segregation (or segregation during the reproduction period.)
2. Sterilization.
3. Restrictive marriage laws and customs.
4. Eugenical education of the public and of prospective marriage mates.
5. Systems of matings purporting to remove defective traits.
6. General environmental betterment.
7. Polygamy.
8. Euthanasia.
9. Neo-malthusianism.
10. Laissez-faire.²⁸

Supporters of eugenics proposed the top three eugenic tools–life segregation, sterilization, and marriage restriction–to target “habitual criminals.” One example of marriage restriction as a eugenic tool to stop reproduction of “habitual criminals” can be found in the law struck down in the famous case of Loving v. Virginia. While that case is well known for striking down the law in Virginia that prohibited interracial marriage, what is less known is that the law in question also contained a prohibition on marrying “habitual criminals.” To get a marriage license in Virginia, grooms had to declare that, “neither is she nor am I a habitual criminal.”²⁹ But while marriage restriction was a tool used by eugenicists to respond to fears of heritable criminality, it was sterilization and long-term imprisonment that were viewed as the most effective tools.

Sterilization as a means of stopping the spread of “habitual criminals” was originally advocated for by the medical community. In an article titled Surgical Treatment of Habitual Criminals, for example, Dr. A.J. Oschner recommended vasectomies “to eliminate all habitual criminals from the possibility of having children.”³⁰ These recommendations soon reached the mainstream. President Theodore Roosevelt was convinced of their merit and advocated explicitly for sterilizing “habitual criminals.” “We have no business to permit the perpetuation of citizens of the wrong type,” he wrote.³¹ Thus, he concluded, “[c]riminals should be sterilized.”³²

While marriage restriction was a tool used by eugenicists to respond to fears of heritable criminality, it was sterilization and long-term imprisonment that were viewed as the most effective tools.

Others, however, believed that long prison sentences—through “habitual criminal” sentencing laws—were a better tool than sterilization. Lombroso, for example, had always maintained that “[b]orn criminals must be interned in special institutions to gradually reduce that not inconsiderable proportion of criminality that stems from heredity [sic] factors.”³³ Bernard Glueck, who taught at Harvard Law School, put it plainly when he wrote that “incorrigibles have to be dealt with in only one way, and that is permanent segregation and isolation from society.”³⁴

While some eugenicists preferred sterilization and others preferred long sentences, most seemed to agree that they did not have to choose. One prominent eugenicist and psychologist, Dr. Henry Goddard, published a report in 1913 that specifically weighed the merits of sterilization versus segregation for “habitual criminals.” He concluded that “it is not a question of segregation or sterilization, but segregation and sterilization.”³⁵ And in 1922, Chief Justice Harry Olson of the Chicago Municipal Court summed it up concisely, writing that “the two theories of segregation and sterilization are not antagonistic, but both may be invoked.”³⁶ And they were both invoked—rapidly and across the whole country.

While some states had “habitual offender” laws even before the 1900s, the eugenic advocacy described above generated a wave of new and harsher versions in the early 1900s. In 1907, for example, New York passed a “habitual criminal” law that required a sentence for a term of one’s “natural life” upon a fourth conviction.³⁷ Prior to its passage, the New York State Board of Charities advocated for the bill on eugenic grounds, arguing that “incorrigible offenders should be permanently segregated by the state.”³⁸ In 1923, California passed an early Three Strikes Law, though that terminology did not exist at the time. Nonetheless, the law mandated that “every person convicted . . . of any felony who shall previously have been three times convicted . . . of robbery, burglary, rape with force and violence, arson or any of them, shall be punished by imprisonment in the state penitentiary for not less than life.”³⁹ Many states followed suit. Between 1920 and 1930, 23 states adopted “habitual criminal” laws.⁴⁰ By 1949, 42 states and the District of Columbia had them.⁴¹

The passage of sterilization laws for individuals convicted of repeated crimes followed a similar trajectory, and often states tried to pass both sterilization laws and “habitual criminal” laws at the same time. Legislators in Indiana, for example, passed the first sterilization law in 1907, the same year that they also passed a “habitual offender” law.⁴² California passed the second sterilization law in 1909, and added a habitual offender law in 1923.⁴³ When New Jersey passed its sterilization law in 1911, the press reported that the law acknowledged the “power of heredity in criminals” and that it was targeted at “the hopelessly defective and criminal classes.”⁴⁴ By 1914, 12 states had sterilization laws. Eleven of the 12 applied to “habitual criminals” or “confirmed criminals,”⁴⁵ such as Iowa’s which made sterilization compulsory upon a second felony conviction.⁴⁶ By 1933, 27 states had sterilization laws.⁴⁷

A pivotal moment for the eugenics movement came when the Nazi party rose to power in Germany in January of 1933. By November, they had passed the “Law Against Dangerous Habitual Criminals.”⁸ Like the American predecessors, this law allowed for life imprisonment for people deemed “incorrigible,” which under the law meant anyone convicted of three offenses.⁴⁸ Also like the American versions, the law was viewed by its advocates as aiming for the “eradication of permanently worthless human material from the national community.”⁵⁰ Hitler’s view, not dissimilar to Justice Holmes’s view expressed in Buck v. Bell, was that “habitual criminals” were a population that should be prevented from reproducing.⁵¹

But while the rise of the Nazi party in Germany was viewed as a victory for the eugenics movement, it also tied the fate of the movement to Hitler and Nazi Germany. As one prominent eugenicist author wrote at the time: “If Hitler succeeds . . . it will be a demonstration that will carry eugenics farther than a hundred Eugenics Societies could. If he makes a fiasco of it, it will set the movement back where a hundred Eugenic Societies can never resurrect it.”⁵²

The Eugenic Imprint on Current “Habitual Offender” Laws

As we now know, Hitler, and his defeat, set the eugenics movement back, as did the subsequent rejection of the scientific premises underlying eugenics. But while eugenics fell into disrepute after World War II, “habitual offender” laws have endured to this day and currently operate in 49 states and the federal government. And often, the “habitual offender” laws on the books today are the same—in text or in substance—as those adopted for eugenic purposes in the early 1900s.

While eugenics fell into disrepute after World War II, “habitual offender” laws have endured to this day and currently operate in 49 states and the federal government.

California, for example, enacted its “habitual criminal” law in 1923.⁵³ In the years leading up to its passage, eugenicists called for such a law for the purpose of preventing reproduction. Paul Popenoe, for example, was a Stanford graduate and board member of the American Eugenics Society. In 1920, he wrote that “habitual criminals” require “institutional care throughout life.”⁵⁴ And he advocated for this on explicitly eugenic grounds: “[t]he essential element in segregation,” he wrote, “is not so much isolation from society, but separation of the two sexes.”⁵⁵

Other Californians of that era shared Popenoe’s Lombrosian belief system. University of California, Berkeley Professor Samuel Holmes, for example, approvingly quoted Cesare Lombroso in 1921, writing that “the born criminal is a brute or savage living among human beings who have advanced beyond his stage of development.”⁵⁶ In a similar vein, a 1924 Los Angeles newspaper article claimed that for habitual criminals, “there is no hope of reform.”⁵⁷ The article continued that, “there is a type of habitual criminal devoid of the slightest desire to reform, and perhaps the capacity, even could the desire be awakened.”⁵⁸ A Humboldt County District Attorney echoed these Lombrosian views, writing that “the greatest number of criminals with whom the prosecutor has to deal, is born a criminal, he is a congenital criminal, he is defective from the day that he is delivered, and he will remain a criminal all of his life.”⁵⁹

The law that passed in 1923 was typical of “habitual criminal” laws in this era. It permitted a life sentence upon conviction of a third felony, and required a life sentence upon conviction of a fourth felony.⁶⁰ California legislators were also engaged in other eugenicist projects at this time. That same year, 1923, a California legislator introduced a eugenics law requiring couples under the age of 45 to undergo medical exams to ensure physical health before marriage.⁶¹ And, by this time, the state had begun involuntarily sterilizing thousands of Californians on eugenic grounds.⁶²

California’s “habitual criminal” law was amended in 1927 to make it even harsher, requiring a life with the possibility of parole sentence for a third conviction and a life without parole sentence for a fourth conviction.⁶³

This scheme lasted until California’s Three Strikes Law of 1994, which added a mandatory doubling of a sentence for a second strike and also lowered the threshold for prior convictions to count as strikes.⁶⁴ These changes, though meaningful, did not alter the operative core of the three strikes law that had existed since 1923: a decades-long sentence for three convictions.⁶⁵ Thus, despite the passage of time and the shift away from eugenics after World War II, California continues to enforce the habitual criminal sentencing scheme that emerged from the eugenics movement.

Colorado’s current “habitual offender” law is similar in that it retains the same operative core as the state’s eugenic-era version. After three failed attempts to pass sterilization laws in the 1920s, Colorado enacted its first “habitual criminal” law in 1929. The last attempt to pass a sterilization bill had come in 1927, but the Governor vetoed it, noting that “the end sought to be reached by the [sterilization] legislation can be obtained by the exercise of careful supervision of the inmates, without invoking the drastic and perhaps unconstitutional provisions of the act.”⁶⁶ The Governor, therefore, had no qualms with the goal of barring reproduction of people deemed “habitual criminals.” He just thought that an option better than sterilization would be long-term sentences.

Colorado Representative Annah G. Pettee described the Governor’s 1927 veto of the sterilization bill as “the tragedy of the session.”⁶⁷ Simultaneously, she warned of the “rapid increase of the insane, feeble-minded and habitual criminal classes.”⁶⁸ She thus advocated for a different approach: a habitual offender sentencing bill. The legislature took that course two years later, in 1929, and passed Colorado’s first “habitual criminal” law.⁶⁹ The law imposed a significantly longer sentence for individuals convicted of a third felony, and a mandatory sentence for the term of one’s “natural life” upon conviction of a fourth felony.⁷⁰ Colorado’s “habitual criminal” law has been amended over the years, but the operative core—which requires reproduction-ending sentences for the repeated commission of crime—remains intact.⁷¹

Vermont passed its first “habitual offender” law in 1927.⁷² The Governor of Vermont proposed sterilization or long sentences for “habitual criminals” in order to “restrict the propagation of defective children.”⁷³ During the 1927 legislative session, the Senate passed a sterilization bill but the bill did not gather sufficient votes in the House.⁷⁴ The Legislature did succeed, however, in passing a “habitual offender” sentencing bill that same year.

Vermont’s law mandated life imprisonment for a fourth felony offense.⁷⁵ That 1927 version of the “habitual criminal” law remains in force today with only minor textual changes. To illuminate the changes, the text below of the current statute marks all the changes that have been made since 1927. The underlining represents words that have been added by amendment, and the strike-through represents words that have been deleted by amendment:

A person who, after having been three times convicted within this state, of felonies or attempts to commit felonies, or under the law of any other state, government or country, of crimes which if committed within this state would be felonious, commits a felony other than murder within this state, shall may be sentenced upon conviction of such fourth, or subsequent offense to imprisonment in the state prison for the term of his natural up to and including life.⁷⁶

As is evident, the text remains substantially the same. Vermont’s eugenically motivated “habitual criminal” bill remains on the books. What is remarkable about Vermont is that the state has apologized for eugenics. In 2021, the Vermont General Assembly passed a resolution making a public apology for past eugenic practices, but the focus was on sterilization, which was successfully passed in the 1930s. There was not a single mention of Vermont’s still-in-force “habitual offender” law.⁷⁷ Somehow, although eugenics and many of its programs declined, “habitual offender” laws have endured and remain largely unrecognized as a vestige of eugenics.

Conclusion

“Habitual offender” laws are widely understood to have emerged in the late 1900s as part of the “tough-on-crime” movement, but the historical record is clear that they proliferated much earlier as part of the eugenics movement. This is critically important, because it demonstrates that the design of “habitual offender” laws was premised on beliefs that are now widely rejected—first that criminality is heritable, and second that it is appropriate to attempt to control the reproduction of a population in order to eradicate them.
Although the eugenics movement has declined, its trace can be seen in the habitual offender laws that exist across the country. If we condemn eugenics, we ought to condemn one of the crowning achievements of the eugenics movement: “habitual criminal” laws and their associated long sentences.

Appendix: Current “Habitual Offender” Laws