CREATORS
March 11, 2025
The rising tide of urban violence during the 1980s and 1990s
caused lawmakers to consider ways to up the ante for chronic offenders. In
1994, Congress enacted the former President Bill Clinton-backed Violent Crime
and Control Law Enforcement Act. Part of the Act included a "three
strikes" provision.
The federal three strikes statute, or habitual offender law,
as it is sometimes referred, punishes a defendant with "mandatory life
imprisonment if he or she is convicted in federal court of a 'serious violent felony'
and has two or more prior convictions in federal or state courts, at least one
of which is a 'serious violent felony.'
Many states followed the federal government. Today 28 of
them have some form of three strikes laws. Many considered the habitual offender
laws as an innovation in sentencing that would make neighbors safer. In fact,
habitual offender laws were not innovative, they were dubious laws repackaged
from an embarrassing era in American jurisprudence.
A new report from The Sentencing Project authored by Daniel
Loehr entitled "The Eugenic Origins of Three Strikes Laws: How
"Habitual Offender" Sentencing Laws Were Used as a Means of
Sterilization" traces the connection between eugenics and three strikes
laws.
"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 movement aimed to create a
superior race to address social problems such as crime and disease, which, as
Loehr suggested, the movement assumed had a biological basis.
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, according
to Loehr. Eugenics and racism are deeply entwined, as eugenics supported
"racial nationalism and racial purity." 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."
U.S. Supreme Court Justice Oliver Wendell Holmes' opinion in
Buck v. Bell — which upheld the sterilization of women in the state of Virginia
— was even cited in defense of Nazi judges during the Nuremberg War Trials.
Carrie Buck became pregnant at age 16. Her foster parents
had her institutionalized as a "feeble-minded moral delinquent,"
despite her claims that she had been assaulted by their nephew.
After she gave birth, Buck was sent to the Virginia State
Colony for Epileptics and Feeble-Minded in Lynchburg, where her mother was
already a resident.
Virginia had a law authorizing sterilization of, among
others, the feeble-minded and the socially inadequate. With three generations
available for examination, the colony set out to prove that the Buck women were
defective. They sought to have Carrie Buck sterilized under the new law.
The Supreme Court supported Buck's sterilization by a vote
of 8-1. Holmes' 1927 opinion is remembered as containing some of the most
infamous language ever delivered by the high court — "Three generations of
imbeciles are enough."
Three strikes laws reduce crime primarily through a theory
of sentencing known as incapacitation. Proponents of incapacitation argue that
an offender who is locked up cannot commit another crime while incarcerated.
The longer the prison stay, the less opportunity to commit crime.
Incapacitation is hard to argue against, especially when the person is a repeat
offender. However, there is a downside to incapacitation.
Three strikes laws significantly increase the sentence
length of a growing segment of prisoners, resulting in a growing and aging
prison population. The fiscal impact of the measure has been significant at
both the state and local levels.
According to Jacob Bush in an article in the Kentucky Law Journal
entitled "Habitual Offenders Statues: A Need for Change" state
expenditures for corrections went from $10.62 billion in 1987 to $80 billion in
2021.
States will face significantly higher future costs resulting
from habitual offender laws as that population continues to grow and age.
Tough-on-crime legislation, immigration crackdowns and promises of draconian
sentencing practices continue to put a huge strain on an already overwhelmed
criminal justice system.
Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book The Executioner's Toll, 2010 was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino
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