In an October interview with Hugh Hewitt, President-elect Donald Trump decried the alleged influx of immigrants under the Biden administration, asserting that many were violent criminals. “You know, now, a murderer—it’s in their genes” he told Hewitt. “And we’ve got a lot of bad genes in our country right now.” This remark is consistent with Trump’s longstanding fascination with genetic determinism, going as far back as his 1987 book The Art of the Deal, where he wrote: “I think deal-making is an ability you’re born with. It’s in the genes.” In both instances, Trump’s comments echo the discredited science of eugenics.
Eugenics, a pseudoscience widely accepted in the late-nineteenth- and early-twentieth-century United States, sought to improve society by breeding undesirable genetic traits out of the population. Marginalized groups—including the poor, people of color, disabled people, and other targets of criminalization—were subjected to coercive policies such as compulsory sterilization, which aimed to eliminate their “defective” genetic stock. Trump’s rhetoric about immigrants “poisoning the blood,” stated preference for Nordic immigrants, and endorsement of “great replacement theory” all evoke archaic eugenic tropes.
But Trump’s rhetoric linking eugenics with criminality and business acumen also reflects this dark history. In my book Dual Justice: America’s Divergent Approaches to Street and Corporate Crime, I demonstrate how eugenics shaped key features of the U.S. criminal justice and regulatory systems. During the Progressive Era, U.S. lawmakers drew on eugenic ideas to design dual justice systems—a punitive one to punish marginalized communities deemed biologically defective and predisposed to crime, and a regulatory one designed to monitor corporate lawbreakers without punitive measures.
Eugenic assumptions continue to inform these institutions, and Trump’s rhetoric signals that his second administration will only further entrench the inequalities they perpetuate. To counter the regressive policies of the incoming administration, we must understand this history and work toward developing an alternative vision for U.S. criminal justice.
The Progressive Era of the late-nineteenth and early-twentieth centuries was a transformative period in U.S. political development. During this time, two institutional features of the legal system took shape under the influence of eugenic ideas. What we now call the criminal justice system evolved to manage street crime via punitive measures aimed at poor and minority populations deemed inherently criminal due to their supposed genetic defects. In contrast, regulatory institutions were established to manage corporate malfeasance, as lawmakers rationalized the misdeeds of the capitalist elite as misguided extensions of their inherently entrepreneurial natures.
These systems reflected twin ideological frameworks, which I term rehabilitative ideology and regulatory ideology. While both ideologies rested on common eugenic principles, they diverged in application. Rehabilitative ideology subjected poor and non-white “street” criminals—deemed eugenic inferiors—to harsh justice. Alternatively, regulatory ideology conceptualized corporate offenders as rational actors whose wrongdoing stemmed from their natural entrepreneurial zeal, not inherent defects, thus warranting corrective regulation rather than punishment.
Importantly, this era witnessed a major shift in U.S. penology when rehabilitation became its guiding ideal. Innovations such as parole, probation, indeterminate sentencing, and in-prison educational programs emerged with the aim of reforming incarcerated people into law-abiding citizens. Zebulon Brockway, a founding figure of the rehabilitative ideal, implemented these reforms as warden of New York’s Elmira Reformatory from 1876 through 1900. However, Brockway’s philosophy was underpinned by eugenics. He believed biological defects were a key cause of crime and concluded that many incarcerated people were “defective fellow beings” whose social segregation was necessary to improve the human race. His rehabilitative model adopted a dual logic in which incarcerated people were categorized as either curable or incorrigible, with indeterminate sentences used to reform and release the former while permanently containing the latter. From its origins, the rehabilitative ideal’s promise of redemption was tethered to a promise to identify and punish the naturally incorrigible.
Brockway and other likeminded practitioners who endorsed rehabilitation also embraced the infamous theories of Cesare Lombroso, who posited the idea of “born criminals”—inferior evolutionary throwbacks biologically predisposed to crime. Lombroso himself even lauded Elmira as a prime example of his ideas in practice. As the eugenics movement gained momentum, Elmira and similar reformatory institutions adopted increasingly harsh eugenic practices. For instance, in the 1920s, Elmira warden Dr. Frank Christian was one of many prison officials who endorsed compulsory sterilization. While he stated that reformatories aimed to release those who could be rehabilitated, he also warned that “that time may never come” for the truly incorrigible for whom sterilization produced “excellent results.”
Corporate crime received a different treatment. During the Progressive Era, as public outrage over corporate misconduct gained new urgency with the rise of the “robber barons,” lawmakers created regulatory bodies like the Interstate Commerce Commission (ICC) and the Federal Trade Commission (FTC) to assuage public concerns. With these institutions, lawmakers aimed to manage the malfeasance of corporate actors through regulatory oversight and civil fines rather than punishment, interpreting their missteps as unavoidable byproducts of their naturally competitive drives.
Such an approach recalled ideas prominent in eugenic scholarship. Consider G. Frank Lydston, whose book The Diseases of Society (1904) claimed to show that those who committed violent and property crimes shared cranial irregularities with poor populations, indicating their common eugenic inferiority. Yet he described business leaders accused of wrongdoing as “respected citizens” driven by “great inherent capacity for good” and a “character that makes men great” that differentiated them from the “petty thief.” Lydston was merely one of many eugenic scholars who perpetuated this double standard within the eugenic understanding of lawbreaking.
This logic gave policymakers a ready-made rationale for managing corporate lawbreaking through regulation. For instance, during debates over the ICC’s creation, Chauncey Depew, a surrogate for Cornelius Vanderbilt, insisted that railroad executives lacked the pathologies necessitating punishment. He informed the House in 1882 that, unlike ordinary criminals, executives “have outlived the penitentiary for mistakes.” Similarly, in debates over the FTC, Louis Brandeis told Congress the FTC would regulate rather than punish activity among corporate actors whose wrongs differed from typical crimes in which “the offense involves a moral taint in the individual.”
These developments in criminal law and economic regulation were rooted in shared assumptions that the behaviors of different populations were traceable to innate traits—whether they be criminal genes or natural ambition—which warranted differential treatment. Together, rehabilitative and regulatory ideologies stigmatized the poor and racial minorities as pathologically criminal while adopting the lighter touch of regulation for governing corporate elites, who were otherwise celebrated for their competitive vigor.
These eugenic foundations still influence contemporary legal practice. For instance, courts often impose sentences that far exceed the statutory maximum for a given crime due to a defendant’s criminal record—a practice that diverges from most other developed nations that give criminal history lesser weight. This stems from the advent of indeterminate sentencing in the United States, when figures such as Brockway interpreted criminal history as irrefutable evidence of incorrigibility. Risk assessments perpetuate comparable logic by relying on factors correlated with racial and class inequality—criminal records, employment history, socioeconomic status—to designate people in the system as either reformable or high-risk, echoing the practice of distinguishing the corrigible and incorrigible based on racial and class variables.
Meanwhile, modern regulators have wide discretion to manage criminalized corporate conduct with varying tools in civil, administrative, and equity law, thus obscuring the frequency and severity of corporate crime. Consider Trump’s 2020 pardon of Michael Milken, a controversial figure convicted for his role in the savings-and-loan crisis. Trump extolled Milken as “one of America’s greatest financiers” and lamented how Milken’s 1989 charges alleged that “some of his innovative financing mechanisms were in fact criminal schemes.” Trump characterized these charges as “novel” because such actions had only been treated as “technical and regulatory violations” before Milken’s case. By presenting Milken’s crimes as extensions of his innovative character and noting that similar conduct had previously only been regulated, Trump concluded that prosecutors mistook Milken’s capitalist vigor for criminality. Trump’s words illustrate how certain assumptions about the capitalist elite endure in the regulatory approach.
As Trump prepares for his second term, his rhetoric threatens to exacerbate the inequalities embedded in U.S. institutions and practices. Effectively resisting his politics requires challenging the eugenic assumptions underlying the current system and articulating an alternative vision of justice that opponents of the carceral state can unite around.
First, we must reject the myth of natural incorrigibility and confront the threat of modern eugenics. While Trump’s eugenic rhetoric about crime might seem like empty bluster, eugenic ideas are becoming increasingly popular in public discourse. Meanwhile, academic studies linking crime to biology, neurology, and IQ all have seen a resurgence. These ideas are likely to resonate with Trump and his allies, making it essential to soundly reject them.
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Second, criminal records must no longer be treated as proof of someone’s unfixable nature, an outdated idea traceable to the rehabilitative ideal’s eugenic roots. Unlike in the United States, European nations typically limit the impact of criminal records in sentencing, with many ensuring that prior convictions cannot increase someone’s sentence beyond the statutory maximum for their current offense. Aligning sentencing practices with these international norms would eliminate a practice that perpetuates eugenic myths and disproportionately harms poor, Black, and Hispanic communities.
Third, rejecting the idea of natural incorrigibility prompts us to reconsider recidivism as a metric for evaluating in-prison programming. Using recidivism rates to measure whether such programs effectively rehabilitate individuals overlooks the reality that equipping people with skills for socioeconomic success is meaningless if they return to communities that systematically deny them the opportunity to use those skills. In other words, by treating in-prison programs as means of “fixing” people, the rehabilitative paradigm ignores the structural political and economic forces that drive recidivism by instead attributing it to incorrigibility. Thus, instead of prioritizing recidivism reduction, we should view in-prison programming through a different lens. Adopting constitutional language of human rights and personal dignity to defend such programs as central to humane treatment, as many European nations do, can create a more compassionate system without conceptualizing in-prison programs in purely instrumental terms. This perspective values such opportunities as inherent goods on their own merit, irrespective of their impact on recidivism, eschewing a rehabilitative logic that reinforces problematic ideas about individual incorrigibility.
Beyond institutional reforms, in Dual Justice I advocate for a more radical structural solution to mass incarceration. Specifically, the book acknowledges the danger of fixating on unpunished corporate misconduct to make a point, which can prompt carceral critics to demand punitive equality by extending the carceral state’s reach to corporate wrongdoers. Such a solution would exacerbate the carceral crisis and reflect a troubling tendency that James Q. Whitman calls “leveling down”—our penchant for equalizing inequalities in punishment by subjecting everyone to the most degrading and severe treatments. Such punitive egalitarianism contrasts with a “leveling up” approach, which seeks to reduce penal inequalities by elevating the treatment of everyone to the most humane and dignified standards.
In this light, “leveling up” would expand regulatory governance to manage both corporate and street-level criminality. Regulatory ideology views corporate lawbreakers as rational actors led astray by the conditions and imperfections of the economy, rejecting the notion that they are either inherently criminal or require individualized reform. Proactively managing economic conditions in pursuit of crime prevention is an idea often advocated by critics of punitive criminal justice, and the historical record shows us how such an approach has flourished in the ideology of business regulation that has grown alongside the carceral state. By improving the material conditions of high-crime areas and curbing capitalism’s most harmful abuses, regulatory governance can mitigate the structural drivers of crime in disadvantaged communities, reframe street crime as a matter of economic justice, and shift the justice system’s attention from individualized treatment to structural economic reform.
Historical precedents illustrate the potential of regulatory frameworks to govern street crime without relying on punitive tools. Many early-twentieth-century drug policies, for instance, focused on regulating businesses and medical professionals rather than criminalizing users. Modern anti-tobacco campaigns have successfully reduced smoking through regulation, advertising restrictions, and public education, not punitive sanctions. More recently, states that have legalized marijuana have instituted various regulatory schemes to manage its production, distribution, and sale without criminal controls. These examples highlight how regulatory tools can govern some social harms without criminal law.
Building on these precedents can facilitate broader applications of regulatory ideology in relation to street crime governance. Expanding access to public goods through federal economic regulation—such as employing federal regulators to expand access to quality education, public housing, and safe and fair workplace conditions in poor, high-crime communities—can offset the structural economic conditions that cause crime through regulatory initiatives. Public investments in job creation and federal works programs can provide economic stability in high-crime and poor communities, reducing the likelihood that residents will turn to criminality for a livelihood. Public jobs programs are not only popular, but recent academic research and past political campaigns for federal jobs programs have emphasized how such initiatives can prevent crime.
Instead of focusing on rehabilitating individuals, the regulatory approach can shift attention onto the structural economic inequalities that fuel recidivism regardless of our attempts to fix people behind bars. This sidesteps a narrow emphasis on individualized reformation, abandons the eugenic myths embedded in U.S. penal practice, and highlights a path out of our carceral crisis that emphasizes economic justice. By moving beyond the legacy of the rehabilitative ideal in this way, the United States can build a justice system rooted in dignity, fairness, and equality.
Dual Justice offers additional arguments for improving the governance of corporate crime, including expanding regulatory oversight, building new Department of Justice divisions committed to prosecuting financial crime, and reforms to better track corporate criminal offending. These suggestions are offered alongside an acknowledgment that the enormous corporations dominating the U.S. economy will remain difficult to govern through any combination of regulation and prosecution, thus necessitating the consideration of more ambitious structural solutions to curb corporate misconduct and make the economy fairer—like breaking up big banks, adopting federal corporate chartering schemes, or asserting permanent nationalized presences in key economic sectors.
Unfortunately, these strategies are unlikely to gain traction any time soon, as Trump prepares to take office. However, understanding this history both equips us to resist some of the worst impulses of the incoming administration and provides a foundation for crafting long-term alternative visions for the future of U.S. law and criminal justice. We must begin laying this groundwork now to be prepared for when more favorable political conditions emerge in the future.
Image: Wellcome Library/Wikimedia Commons