The Born Criminal and Indeterminate Sentencing

The Failure of Reform:

The rise of bertillonage and increased interest in rates of criminal recidivism led to the realization by policy makers of the late 19th century that in many cases, reformation of criminals does not work. The Bertillon system, which found its origins in the studies of French criminologist Alphonse Bertillon, focused on the measurement and recording of body parts as a means of identifying the criminal. The system helped create a profile that identified criminals based on their unchangeable physicalities, and could identify repeat offenders despite new tattoos or aliases they may use to mask their identity. It rose to popularity in an age before fingerprint analysis and shed light on the high rates of recidivism in American penitentiaries that policy makers had fallen ignorant to. “Recommitment rates” for Sing Sing prison, specifically, during the years 1817 and 1842 demonstrate that the likelihood of recidivism was far greater in the 19th century than reform.[1] By classifying between first time and repeat offenders, the Bertillon system lent support to the idea that efforts to reform criminals in prison were failing, and cast serious doubt over phrenological ideas that the criminal man was someone who could be turned away from his propensity of lawlessness.

It was in this context of uncertainty that criminal anthropology rose as an explanation as to why some criminals could be deemed ‘unchangeable’. It rooted itself in positivist ideas but contended that some people were born criminals and could not be reformed out of their natural states. They agreed with phrenologists and degenerationists that criminals were biologically inferior and even genetically defective, but did not agree that those criminals could change their genetic predispositions. It is in under this understanding of the nature of the criminal man that changes were made to how this criminal should be treated.

Rise of Indeterminate Sentencing:

Increased popularity of this idea lent support to indeterminate sentencing. The reasoning behind this was that if some criminals were unchangeable, they shouldn’t be released from treatment. Lawlessness here was treated as a disease, one that could not be cured. If then, a disease could not be cured, why stop treating it? The rhetoric surrounding the adoption of indeterminate sentencing was that a lifetime of imprisonment was the cure to the sickness of criminality. So convincing was this argument that penitentiaries throughout the country caught on to this trend by the end of the 19th and into the 20th century. Judge Lewis writes that “[t]he method of apportioning penalties according to the degrees of guilt implied by defined offenses is completely discredited,” for it restrains the prisoner only “until the term ends, as if one should cage a man-eating tiger for a month or a year, and then turn him loose”[2]. To him, those criminals beyond treatments should not be released, a statement supported by the Committee on Prison Discipline a decade later:

…. No doubt there will always remain some prisoners, perhaps many, unsafe to go at large with entire freedom. Incurable disease, extreme degeneration of body or of mind, and they of demonical possession, must be relegated to the lifelong measure of restraint . . . (1888, p. 135)

The Criminal Family:

Legislative acknowledge of the idea of ‘habitual criminals’ led to its rising legitimacy, and from that grew the belief that these genetically defective and incurable criminals could procreate defective offspring. Studies done on criminal families, such as Richard Dugdale’s famous analysis of the Juke family, corroborated the idea that lawlessness was an inheritable trait. Logic extends from that to conclude that criminals would breed other criminals, offspring that should then be prevented from being born and allowing for more lawlessness to enter society. This idea would later serve basis to the subsequent rise of the American Eugenics movement.


Eugenics Movement:

The Eugenics movement, which rose to prominence in light of the works of Charles Darwin and his theory of natural selection, aimed to breed out of the population genetically ‘undesirable’ people (or as Darwin would term them, the unfit.) Forced sterilization, lifetime imprisonment and other arbitrary and cruel methods were suggested to meet these aims. But while the 19th century saw the birth of these ideas on how to control the next generation, it wasn’t until the 20th century that technology to put these controls in place was perfected.  It was at this time that Edwin Kehrer in Germany and A.J. Ochsner in Chicago perfected the practice of ‘tying’ female’s fallopian tubes together and severing the vas deferens of males. The legalization of this practice would occur after World War 1 when states such as Connecticut, Kansas, New Jersey and Indiana all passed laws forbidding the marriage of the feebleminded, insane, and criminal.  Eugenicists continued to advocate forced sterilizations and lifetime imprisonment to prevent ‘degenerates’ from mating with one another. It wasn’t until after World War 2 even, that the movement started to wane in light of the discovery of the horrors of the Nazi regime’s use of it.


It was the contention of theorists of the late 19th century that some criminals were unchangeable. If then, as positivists would argue, criminals are genetically defective but cannot be reformed, their offspring would like be ‘born criminals’ as well. This was exactly the idea that permeated the American Eugenics movement of the time, which attempted to not only classify and discriminate against genetically undesirable people, but also to prevent them from procreating too. The criminal man of the late 19th century became someone very different than the one of the early 19th century. His ‘inherent’ and ‘unchangeable’ criminality made him undesirable to live among non-criminals, and if he did he must be sterilized so as to not breed with them. As ideas about him started to shift out to mean he was un-reformable, policy makers adjusted policy so that they didn’t have to be reformed.

[1] (Stern, Voices from American Prisons, 73).

[2](Haney, Criminal Justice and the Nineteenth-Century Paradigm 213-214 )