'The Criminal Is to Go Free': The Legacy of Eugenic Thought in Contemporary Judicial Realism about American Criminal Justice

Historians of the American penal state agree that" eugenics"-the global scientific and social movement for government managing of the" racial stock" of society-was a significant influence on the major wave of penal expansion that took shape in the first decades of the twentieth century, commonly described as the" Progressive Era." As a social and scientific movement that identified both individuals and whole races as more or less' fit," eugenics fell out of cultural favor in the 1940s following international revulsion at the enthusiastic eugenic practice of the Nazi regime. Ever since then, prevailing ideas in American penal policy, both liberal and conservative, have largely (although not completely) avoided classic eugenic arguments. However, decades after policy makers renounced its prevailing ideas, a growing body of scholarship points to the ongoing legacy of eugenic thinking about crime and crime prevention that …