History of Crime in the United States

elinaa

TheTwoPercentSolution.pdf

Home >History homework help >History of Crime in the United States

The Two Percent Solution: Eugenic Jurisprudence and the Socialization of American Law, 1900-1930

Author(s): Michael Willrich

Source: Law and History Review , Spring, 1998, Vol. 16, No. 1 (Spring, 1998), pp. 63-111

Published by: American Society for Legal History

Stable URL: https://www.jstor.org/stable/744321

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at https://about.jstor.org/terms

is collaborating with JSTOR to digitize, preserve and extend access to Law and History Review

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

https://www.jstor.org/stable/744321

The Two Percent Solution:

Eugenic Jurisprudence and the Socialization of American Law, 1900-1930

MICHAEL WILLRICH

The persons of stunted intellect and moral defect are scattered all through society. They account for the greatest burden of educators, from the kindergarten to the university. They account for many of the wife desertions, the bizarre and often cruel domestic entangle- ments, and the divorces. They account for the carelessness, the ir- responsibility, and the quarrelsomeness, which check industrial production.... The competent members of the community have to guard these defectives, endure their depredations and make good of their waste-often doing all these things without being fully aware of the burden or the cause for it.

Chief Justice Harry Olson, Municipal Court of Chicago, 1923.

In early twentieth-century America, the novel technology called "eugenics"- a potent hybrid of biological science, statistical method, and cultural assump- tions-won a diverse following of academics, animal breeders, social work- ers, criminologists, psychiatrists, institutional superintendents, philanthropists, and activists spanning the political spectrum from socialists to white suprem- acists. Although heirs to the Enlightenment pursuits of science, reason, and a rationally organized state, eugenicists rejected the Enlightenment's egalitari-

Michael Willrich is assistant professor of history at Rice University. He presented earlier versions of this essay at the University of Chicago Comparative Legal His- tory Workshop and the 1995 meeting of the American Society for Legal History, and he is grateful for the insights generated in both sessions. He wishes to thank George Chauncey, Andrew Cohen, Kathleen Conzen, Neil Harris, Thomas Holt, David Igler, Barry Karl, David M. Kennedy, William Novak, Susan Radomsky, Lucy Salyer, Nayan Shah, David Tanenhaus, Christopher Tomlins, James Trent, Mason Willrich, Patricia Willrich, Wendy Willrich, and the anonymous reviewers for their comments, criticisms, and encouragement.

Law and History Review Spring 1998, Vol. 16, No. 1 ? 1998 by the Board of Trustees of the University of Illinois

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

an strain, insisting that hereditary endowment determined social structure. Fusing Darwin's theory of evolution and Mendel's discoveries in plant hered- ity, eugenicists claimed to find distinct genetic roots for the many problems of personality and society that alarmed their contemporaries: from "feeble- mindedness" and "psychopathy" to "delinquency" and "hypersexuality." Within the bright lines of a eugenic worldview, the poverty and crime that pervaded an avowedly meritocratic urban-industrial democracy were comprehended as the offspring of hereditary "mental defects," racial "mongrelization," and sen- timental charitable efforts that, in a vain attempt to reform deviant individu- als, had only assured their survival and reproduction.

Unlike the laissez-faire social Darwinists of the Gilded Age, eugenicists in the Progressive Era were eager to use the full range of state police powers to prevent the reproduction of criminality, deviancy, and dependency.' Two crit- ical developments in criminal justice enabled them to do so: the structural ra- tionalization (or "modernization") of urban courts and the proliferation of crim- inological discourse linking criminality to hereditary "mental defect." The resulting synergy of state building and social theorizing, which this essay aims to illuminate, has gone largely unnoticed. Historians of criminal justice have had surprisingly little to say about eugenics,2 and historians of eugenics-de- spite their concern for the state's use of scientific knowledge to classify and control individuals-have neglected the courts, the increasingly powerful and interventionist instruments of local governance where so much of the classi-

1. Richard Hofstadter, Social Darwinism in American Thought, rev. ed. (Boston: Beacon Press, 1955), 161-67.

2. The standard histories of American criminal justice pay little attention to eugenics. Lawrence M. Friedman notes that "The gospel of eugenics affected criminal justice even in its ordinary course," but he does not say how. Crime and Punishment in American History (New York: Basic Books, 1993), 336. The same tendency is evident in Andrew J. Polsky, The Rise of the Therapeutic State (Princeton: Princeton University Press, 1991); David J. Rothman, Conscience and Convenience: The Asylum and Its Alternatives in Progressive America (Boston: Little, Brown, 1980); and Samuel Walker, Popular Justice: A History of American Criminal Justice (New York: Oxford University Press, 1980). Historians who have written about eugenics and crime have focused mainly on criminology and penal institutions, not the courts. See Hamilton Cravens, "Applied Science and Public Policy: The Ohio Bu- reau of Juvenile Research and the Problem of Juvenile Delinquency, 1913-1930," in Psy- chological Testing in American Society, 1890-1930, ed. Michael M. Sokal (New Brunswick: Rutgers University Press, 1987), 158-94; David Garland, Punishment and Welfare: A His- tory of Penal Strategies (Brookfield, Vt.: Gower, 1985); Philip Jenkins, "Eugenics, Crime and Ideology: The Case of Progressive Pennsylvania," Pennsylvania History 51 (1984): 64- 79; Alexander W. Pisciotta, Benevolent Repression: Social Control and the American Re- formatory-Prison Movement (New York: New York University Press, 1994); and Nicole Hahn Rafter, Partial Justice: Women in State Prisons, 1800-1935 (Boston: Northeastern Univer- sity Press, 1985). A particularly interesting exception is Steven Schlossman and Stephanie Wallach, "The Crime of Precocious Sexuality: Female Juvenile Delinquency in the Progres- sive Era," Harvard Educational Review 48 (1978): 65-94.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

fying and controlling took place.3 As a result, historians have overlooked a significant chapter in the development of criminal justice and, more general- ly, in the policing of American society.4

3. The historical and sociological literatures on eugenics have grown rapidly in recent years, owing partly to well-placed concerns about the resurgence of eugenics. For general histories of eugenics as science, social thought, and popular movement, see Carl N. Degler, In Search of Human Nature: The Decline and Revival of Darwinism in American Social Thought (New York: Oxford University Press, 1991); Daniel J. Kevles, In the Name of Eu- genics: Genetics and the Uses of Human Heredity (New York: Alfred A. Knopf, 1985); Stephen Jay Gould, The Mismeasure of Man (New York: W. W. Norton, 1981); Mark H. Haller, Eugenics: Hereditarian Attitudes in American Thought (New Brunswick: Rutgers University Press, 1963); and Donald K. Pickens, Eugenics and the Progressives (Nashville: Vanderbilt University Press, 1968). The history of the Eugenics Record Office, the institu- tional nucleus of American eugenics, is well told in Garland E. Allen, "The Eugenics Record Office at Cold Spring Harbor, 1910-1940: An Essay in Institutional History," Osiris, 2d ser., 2 (1986): 225-64. Recently, scholars have examined the relationship between the profes- sionalization of social control and the emergence of eugenics. See especially Garland, Pun- ishment and Welfare; Nicole Hahn Rafter, "Claims-Making and Socio-Cultural Context in the First U.S. Eugenics Campaign," Social Problems 39 (1992): 17-34, and "Eugenics, Class, and the Professionalization of Social Control," in Inequality, Crime, and Social Control, ed. George S. Bridges and Martha A. Myers (Boulder: Westview Press, 1994); Steven Noll, Feeble-Minded in Our Midst, Institutions for the Mentally Retarded in the South, 1900-1940 (Chapel Hill: University of North Carolina Press, 1995); and James W. Trent, Jr., Inventing the Feeble Mind: A History of Mental Retardation in the United States (Berkeley: Universi- ty of California Press, 1994). On the long-neglected history of eugenics in the American South, see Edward J. Larson, Sex, Race, and Science: Eugenics in the Deep South (Balti- more: Johns Hopkins University Press, 1995); and Noll, Feeble-Minded in Our Midst. For a useful comparative perspective, see Mark B. Adams, ed., The Wellborn Science: Eugenics in Germany, France, Brazil, and Russia (New York: Oxford University Press, 1990).

4. I use "police" broadly to describe the work of state and nonstate institutions that acquire cultural authority and public power by defining "social problems" and claiming expertise in managing the populations thus labeled deviant (e.g., "sexual inverts," "women adrift," "men- tal defectives"). My claim here is that urban courts, wielding state power as they define and address social problems, belong at the center of the increasingly insightful literature on social policing in twentieth-century America. See Hazel V. Carby, "Policing the Black Woman's Body in an Urban Context," Critical Inquiry 18 (1992): 738-55; George Chauncey, Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (New York: Ba- sic Books, 1994); Linda Gordon, Heroes of Their Own Lives: The Politics and History of Family Violence (Boston: Penguin Books, 1988); Regina G. Kunzel, Fallen Women, Problem Girls: Unmarried Mothers and the Professionalization of Social Work, 1890-1945 (New Haven: Yale University Press, 1993); Elizabeth Lunbeck, The Psychiatric Persuasion: Knowledge, Gender, and Power in Modem America (Princeton: Princeton University Press, 1994); Joanne Mey- erowitz, Women Adrift: Independent Wage Earners in Chicago, 1880-1930 (Chicago: Univer- sity of Chicago Press, 1988); and Mary E. Odem, Delinquent Daughters: Protecting and Po- licing Adolescent Female Sexuality in the United States, 1885-1920 (Chapel Hill: University of North Carolina Press, 1995). The influence of Michel Foucault looms large in the current historical conceptualization of social policing. See especially Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage Books, 1979); The History of Sexual- ity, vol. 1, An Introduction, trans. Robert Hurley (New York: Vintage Books, 1990); and The

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

The articulation of eugenic discourse and juridical rationalization produced a style of reform and governance that I call "eugenic jurisprudence," the ag- gressive mobilization of law and legal institutions in pursuit of eugenic goals. The emergence and florescence of eugenic jurisprudence were integrally tied to the larger transformation of American law and governance that its contem- porary advocates called the "socialization of law."5 Rejecting laissez-faire conceptions of state and society as inadequate to the governmental needs of the "modern" urban-industrial world, progressive jurists constructed a new sociologically oriented jurisprudence that legitimated an expanded role for the state in investigating, policing, and ameliorating social conditions.6 But social- ized law did more than broaden the state's reach into the industrial economy. It also reconfigured the relationship between the modem liberal state and its citizens. As Henry Steele Commager observed (in language that anticipates Foucault by decades), progressive jurists "saw law not primarily as a concise body of principles regulating the relationship between the individual and his government but as a sprawling body of practices conditioning the conduct of the individual in his society."7 If progressive jurists and reformers deserve credit

Foucault Effect: Studies in Governmentality, ed. Graham Burchell, Colin Gordon, and Peter Miller (Chicago: University of Chicago Press, 1991). However, Judith R. Walkowitz and oth- ers have persuasively argued that the simultaneous cultural production of power and knowl- edge in modem liberal regimes that Foucault so imaginatively problematized must be analyzed with a keener appreciation of historical contingency and human agency. Walkowitz, City of Dreadful Delight: Narratives of Sexual Danger in Late-Victorian London (Chicago: Univer- sity of Chicago Press, 1992), 1-13.

5. Roscoe Pound was the leading American writer on socialized law in the administration of criminal justice. The best introduction to this theme is his widely influential article, "The Administration of Justice in the Modem City," Harvard Law Review 26 (1913): 302-28.

6. Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992). Progressive legal thought grew out of the trans-Atlantic "revolt against formalism" that produced a new social-historical perspective among intellectuals. H. Stuart Hughes, Consciousness and Society: The Reori- entation of European Social Thought, 1890-1930 (New York: Vintage Books, 1958). James T. Kloppenberg, Uncertain Victory: Social Democracy and Progressivism in European and American Thought, 1870-1920 (New York: Oxford University Press, 1986). Edward A. Purcell, Jr., The Crisis of Democratic Theory: Scientific Naturalism & the Problem of Value (Lexington: University Press of Kentucky, 1973). Morton White, Social Thought in Ameri- ca: The Revolt Against Formalism (New York: Viking Press, 1949). William J. Novak has recovered a pervasive nineteenth-century vision of the common law that was less concerned with laissez-faire and individual economic rights than with a "well-regulated society." The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: Uni- versity of North Carolina Press, 1996). Alan Brinkley traces the decline of progressive le- gal thought during the late New Deal era. The End of Reform: New Deal Liberalism in Re- cession and War (New York: Alfred A. Knopf, 1995).

7. Henry Steele Commager, The American Mind: An Interpretation of American Thought and Character Since the 1880's (New Haven: Yale University Press, 1950), 380. Foucault, Discipline and Punish, 296-308.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

for addressing inequities in the marketplaces and workplaces of industrializ- ing America, they also bear responsibility for the lives and liberties endangered by eugenic jurisprudence.

For at the local level-where historians of twentieth-century American law and the state too rarely travel-the socialization of law entailed a sweeping reorganization of judicial institutions in the early twentieth century, as munic- ipal reformers scrapped particularistic justice-of-the-peace systems and con- structed centralized municipal court systems in their place. With the advent of such "socialized" disciplinary techniques as indeterminate sentencing, proba- tion, and specialized courts-all geared toward the "individual treatment" of offenders-municipal judges gained new discretionary power over the dispo- sition of individual offenders, and they increasingly solicited the professional expertise of the social workers and psychiatrists attached to the new munici- pal courts.8 In the process, psychological testing, including its prominent eu- genicist variety, was integrated into the everyday practice of local courts, where the allegedly "natural" categories of eugenic jurisprudence-"feeble-minded," "psychopathic," or simply "mental defective"-acquired unprecedented coer- cive power.9

The Chicago Case

The Municipal Court of Chicago, America's largest and most famous urban court in the Progressive Era, served as a national model for urban court reform and a proving ground for eugenic jurisprudence. Roscoe Pound of Harvard Law School, the torchbearer of progressive legal thought, praised the court's bu- reaucratic structure and socialized approach to criminal matters, dubbing it "the

pioneer modern judicial organization in the United States."10 In 1914, the

8. Polsky, Rise of the Therapeutic State. Rothman, Conscience and Convenience. 9. The law gives "natural" categories like "race" and "gender" cultural legitimacy and a

materiality that renders them operational in state practice. Collette Guillaumin, "Race and Nature: The System of Marks: The Idea of a Natural Group and Social Relationships," Fem- inist Issues 8 (1988): 25-3. See also Peggy Pascoe, "Miscegenation Law, Court Cases, and Ideologies of 'Race' in Twentieth-Century America," Journal of American History 83 (1996): 44-69.

10. Roscoe Pound, "Organization of Courts," speech before the Minnesota State Bar Association, 20 August 1914, Journal of the American Judicature Society 11 (1927): 80. The institution and its students left behind a large residue of published and archival sources, including many never before examined. Chief Justice Harry Olson's administrative papers and correspondence reside in two collections: the Municipal Court of Chicago Collection, 1906-1927 (hereafter "MCC") at the Chicago Historical Society; and the Judge Harry O1- son Papers ("JHOP") at the Northwestern University Archives. The Chicago Historical So- ciety has also recently acquired the newspaper clippings that Olson collected from 1908 to 1916. Several hundred microfilm reels of unindexed criminal case files from the court, which

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

court's renowned chief justice, Harry Olson, established a eugenicist crimino- logical clinic in the court, the Psychopathic Laboratory, and he used his posi- tion as a bully pulpit. For the next fifteen years, Olson broadcast the dangers of criminal "mental defectives" in the public reports of the Municipal Court, in the pages of law journals, and in speeches before women's clubs and bar associations from coast to coast.1l The judge distilled the message of eugenic jurisprudence into a startling pair of statistics: two percent of the American population committed crimes, and two percent were estimated by eugenicists to be mentally defective.12 Psychological examination of urban offenders in criminological clinics showed these two populations to be one and the same. The solution? Giving a moder twist to the venerable common law doctrine

date from 1914 to 1924, have recently been discovered and are held at the Cook County Circuit Court Archives. Particularly useful for this essay, the first historical study of the Municipal Court, were several boxes of previously unexamined feebleminded commitment cases, also housed at the Circuit Court Archives. The Municipal Court's published (and widely disseminated) annual reports contain official statistics, institutional histories, and court propaganda. And, finally, there are the numerous contemporary studies of America's model "socialized" court. See especially Almena Dawley, "A Study of the Social Effects of the Municipal Court of Chicago" (M.A. thesis, University of Chicago, 1915); Hiram T. Gilbert, The Municipal Court of Chicago, 2d ed. (Chicago: By the author, 1928); Weston A. Good- speed, ed., History of Cook County (Chicago: Goodspeed Historical Association, 1909), 854- 64; Herbert Harley, A Modem Experiment in Judicial Administration: The Municipal Court of Chicago, address before the Louisiana Bar Association, 8 May 1915 (Chicago, n.p.); [Ethel R. McDowell], History of the Municipal Court of Chicago and Its Specialized Services (Chicago: Municipal Court of Chicago, n.d.); and Raymond Moley, "The Municipal Court of Chicago," in The Illinois Crime Survey (Chicago: Illinois Association for Criminal Jus- tice, 1929), 389-419.

11. Many of Chief Justice Harry Olson's speeches and essays on judicial administration and eugenic jurisprudence survive in published form. See especially "Disease and Crime- An Analogy," speech before the State Conference of Social Agencies, Los Angeles, 2 May 1916 (n.p.); "The Municipal Court of Chicago: A Tribunal of Procedural Reform and So- cial Service," speech before the Associated Charities of San Francisco, 10 May 1916, re- print from the San Francisco Recorder, 12 May 1916; "Report of the Psychopathic Labora- tory," in Tenth and Eleventh Annual Reports of the Municipal Court of Chicago: For the Years December 6, 1915, to December 2, 1917, inclusive (Chicago: Municipal Court of Chicago, n.d.), 9-18; "Organization, Procedure and the Psychopathic Laboratory," speech before the Iowa State Bar Association, 25 June 1920 (n.p.); "The Psychopathic Laboratory of the Municipal Court of Chicago," Central Law Journal 92 (1921): 102-8; "The Recent History of the Psychopathic Laboratory of the Chicago Municipal Court," Central Law Journal 93 (1921): 132-40; and "Crime and Heredity," presidential address before the Eugenics Research Association, 16 June 1923, in Research Studies of Crime as Related to Heredity (Chicago: Municipal Court of Chicago, 1925), 9-29. Several speech drafts can be found in JHOP, Boxes 3 and 4.

12. Olson, "Disease and Crime." As sociologist James W. Trent, Jr., has shown, estimates of the percentage of "feeble minds" in the American population rose dramatically from 1870 to 1920. In 1880, Frederick Wines, special consultant to the United States Census Bureau, surveyed 100,000 physicians and determined that 153.3 out of every 100,000 Americans were

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

that the insane could not be held accountable for criminal acts, Olson insisted

society take full responsibility. An enlightened society would use the new tech- nology of psychological testing to identify defectives and confine them in sex- ually segregated state institutions-before they committed crimes, if possible- and prevent them from reproducing "their kind."'3

Eugenic jurisprudence was not just another rhetorical flourish in the age- old "nature-nurture" debate. The Municipal Court's eugenics program dem- onstrated the stark human consequences of this marriage of scientific knowl- edge and juridical power. During Olson's tenure as chief justice from 1906 to 1930, municipal judges sent tens of thousands of criminal defendants to the laboratory for a psychiatric examination. Using widely accepted psychologi- cal tests, laboratory director William J. Hickson and his staff routinely con- cluded that the individuals they examined were dangerous hereditary mental defectives. Heeding the doctor's advice, Municipal Court judges committed an estimated one thousand people annually to sexually segregated institutions for the insane or feebleminded-regardless of whether the court found them guilty of breaking any law. "It cannot be doubted," Olson boasted in 1924, "that this practice ... has been a very effective means for the preventing of crimes."'4

feebleminded. Psychologist Henry H. Goddard first suggested that the feebleminded consti- tuted two percent of the population in 1910, after he invented the category "moron" to describe schoolchildren who "were certainly brighter than children traditionally recognized as feeble- minded, but... were still abnormal." Trent, Inventing the Feeble Mind, 160, 142, 171.

13. Blackstone explained the common law insanity doctrine as follows: "idiots and lu- natics are not chargable for their own acts, if committed when under these incapacities. . . "Quoted in Friedman, Crime and Punishment, 143.

14. Sixteenth, Seventeenth and Eighteenth Annual Reports of the Municipal Court of Chicago: For the Years December 4, 1921 to November 30, 1924, inclusive (Chicago: Mu- nicipal Court of Chicago, n.d.), 13. The court did not publish longterm commitment statis- tics in its otherwise thorough annual reports-an unconscionable omission given the human stakes involved. In the 1924 report Olson wrote, "Two or three years ago the commitments of such persons had reached a total of as high as one thousand per year. At the present time an ever higher rate is reported." In the same report, Dr. Hickson claimed that the laboratory had made "over 40,000 complete examinations" since 1914, or roughly 4,000 per year. He also noted that in a group of 1,002 consecutive cases sent from the Municipal Court's crim- inal branches, 68.25 percent of the men and 87 percent of the women had been "committed to institutions as feebleminded or insane." These percentages suggest a much higher annual commitment rate than Olson claimed. By comparison, the Municipal Court committed 14,260 defendants to the House of Correction or County Jail for misdemeanors and quasi-crimes from December 1923 to November 1924. Unlike the men and women facing indeterminate sentences in institutions for the "insane" and "feeble-minded," none of these prisoners could legally be held for more than one year, and most served much shorter terms. Ibid., 13, 128a, 182, 179, 181. Contemporaries noted Hickson's tendency to recommend commitment for the vast majority of individuals he examined. "Hickson Quits," Chicago Daily Tribune, 14 September 1929, 1. H. Douglas Singer, "The Deranged or Defective Delinquent," in Illi- nois Crime Survey, 733-810.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

Although controversial in its own time, the language of eugenic jurisprudence infused American public discourse on crime during the 1910s and 1920s, the years when law and order, historically a local matter, began to be redefined as a national issue. Newspapers and magazines lavished column inches on the link between crime and heredity,"5 while scholars debated the constitutionality and scientific validity of eugenic jurisprudence in academic journals.16 Social reform- ers sympathetic to eugenics invoked the specter of the criminal mental defec- tive to win support for compulsory sterilization laws, which thirty states enact- ed between 1907 and 1940.'7 Indiana established the nation's first such law in

1907 with the characteristic preamble: "Whereas heredity plays a most impor- tant part in the transmission of crime, idiocy and imbecility . ."18 And when the United States Supreme Court upheld the constitutionality of compulsory ster- ilization in Buck v. Bell (1927), disarming the hostile rulings of several state courts, Oliver Wendell Holmes Jr.'s infamous decision left no doubt that eugen- ic jurisprudence had reached the pinnacle of American law. "It is better for all the world," he wrote, "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."19 By 1964, more than 60,000 inmates of state institutions had been sterilized under state laws.20

Historians have long recognized the Progressive Era as a seminal moment in criminal justice reform: not since the 1840s and 1850s, when municipal reform movements led to the creation of the first professional police forces, had crimi-

15. French Strother, "The Cause of Crime: Mental Defect," "The Cure for Crime," "Crime

and Heredity," and "Crime and Educated Emotions," reprinted from World's Work, July, August, September, and November, 1924 (Chicago: Municipal Court of Chicago, 1924). "The Criminal Incompetent," Chicago Daily Tribune, 10 October 1927, 10.

16. Joseph P. Chamberlain, "Eugenics in Legislatures and Courts," American Bar Asso- ciation Journal 15 (1929): 165-69. Harriette M. Dilla, "Some Sociological Aspects of Crim- inal Law," Michigan Law Review 13 (1915): 584-89. J. H. Landman, "The History of Hu- man Sterilization in the United States-Theory, Statute, Adjudication," Illinois Law Review 23 (1929): 463-80. Aubrey E. Strode, "Sterilization of Defectives," Virginia Law Review 11 (1925): 296-301. An especially rich source is the Journal of the American Institute of Criminal Law and Criminology (later renamed the Journal of Criminal Law and Criminol- ogy), the leading criminal law journal in the United States. Robert H. Gault, "Prospective Laboratories for the Study of Criminals," Journal of the American Institute of Criminal Law and Criminology 3 (1913): 825-27.

17. Gerald N. Grob, Mental Illness and American Society, 1875-1940 (Princeton: Prince- ton University Press, 1983), 173.

18. Quoted in Edwin R. Keedy, "Sterilization of Habitual Criminals and Feeble-Minded Persons," Illinois Law Review 5 (1911): 578.

19. Buck v. Bell, 274 U.S. 207 (1927). 20. Donald T. Critchlow, "Keeping the Life Stream Pure," review of The Surgical Solu-

tion: A History of Involuntary Sterilization in the United States, by Philip R. Reilly, Reviews in American History 20 (1992): 343.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

nal justice undergone such an explosion of innovation.21 Standard accounts, however, oversimplify the progressive moment as an almost Manichean contest between deterrence-obsessed "crime control" advocates and "environmentalist"

social reformers.22 There is some truth in this characterization. One undeniable

force in Chicago reform was a loose coalition of newspaper editors, attorneys, and businessmen led by the famous Crime Commission, which insisted that the chief purpose of criminal justice was to deter crime by assuring swift punish- ment. The commission focused on felony crimes and pressured the state's attor- ney's office to eradicate delays and "criminal coddling."23 A very different coa- lition of clergy, academics, and social workers rejected a rigid deterrence position and conceived of criminal justice broadly as an instrument of social reform. Known to contemporaries as "environmentalists" because of their conviction that

social ills had roots in the urban environment, this group attained its greatest influence in the Juvenile Protective Agency of Hull-House, which lobbied crim- inal justice officials to reform offenders, reunite families, and purge vice from the city streets.24 Although this picture of reform has its merits, it fails to account

for the central role of eugenicists in progressive criminal justice reform. And by framing the story as a contest between distinct types of reformers, rather than exploring the construction of eugenic jurisprudence, environmentalism, and crime

control as distinct but interdependent ideologies of governance, the current syn- thesis obscures the extent to which criminal justice reformers of all stripes ap- propriated each other's rhetoric and were engaged in a common enterprise: to broaden the reach of governmental institutions into the everyday lives of urban working-class populations.

This article charts the career of eugenics jurisprudence in one of the nation's most historically significant court systems, the Municipal Court of Chicago. Thus, it returns eugenic jurisprudence to the center of criminal justice reform in the Progressive Era. Forgoing well-trodden avenues in eugenics historiog-

21. On police and policing in nineteenth-century America, see especially Eric Monkkonen, Police in Urban America, 1860-1920 (Cambridge: Cambridge University Press, 1981); David Montgomery, Citizen Worker: The Experience of Workers in the United States with Democ- racy and the Free Market during the Nineteenth Century (Cambridge: Cambridge Univer- sity Press, 1993), 52-114; Allen Steinberg, The Transformation of Criminal Justice: Phila- delphia, 1800-1880 (Chapel Hill: University of North Carolina Press, 1989); and Christopher L. Tomlins, Law, Labor, and Ideology in the Early American Republic (Cambridge: Cam- bridge University Press, 1993), 35-97.

22. See especially Mark H. Haller, "Urban Crime and Criminal Justice: The Chicago Case," Journal of American History 57 (1970): 619-35; and Walker, Popular Justice, 127-93.

23. The best source on the commission is Bulletin of the Chicago Crime Commission, est. 1919. David R. Johnson, "Crime Fighting in Chicago: An Analysis of Its Leadership, 1919-1927" (M.A. thesis, University of Chicago, 1966).

24. Jane Addams, The Spirit of Youth and the City Streets (New York: Macmillan, 1909). Allen F. Davis, American Heroine: The Life and Legend of Jane Addams (New York: Ox- ford University Press, 1973), 149-56.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

raphy, it does not dwell upon legislative debates, mental institutions, or the diverse eugenics "movement." Instead, it directs attention to local courts, where the label of criminal "mental defective" was affixed and its meaning deter- mined. An examination of eugenic jurisprudence in action demonstrates the dangerous power that biologically essentialist theories of deviancy can have when incorporated into state practice. More surprisingly, it also reveals that eugenic jurisprudence and environmentalism, though contradictory in their first principles, were remarkably interdependent.25 From 1900 through World War I, the ideological differences between eugenicists and environmentalists were tempered by their mutual rejection of the deterrence model, their interest in "root causes," and their common commitment to the two structural goals of socialized criminal justice: the individual "treatment" of offenders and the introduction of professional experts-psychologists, psychiatrists, and social workers-into the juridical process. It was not until the common goals of eu- genicists and environmentalists had been achieved in most major urban cen- ters in the mid-twenties that environmentalists joined the broad trend in psy- chiatry and social science toward an explicit repudiation of eugenics and hereditarianism generally.26

"Organized" Courts and "Socialized" Law

The coalition of businessmen and attorneys who led the campaign for a mu- nicipal court in Chicago did not set out to create a national center for eugenic jurisprudence. But in their quest for a rationalized bureaucracy to administer justice in their "modern" city, they forged the structure and rationale for such a center. If necessity is the mother of invention, it is also the parent of unfore- seen consequences.

Before the Municipal Court of Chicago opened for business in 1906, the judicial system of America's second largest city, like that of most other Amer- ican communities, consisted of a particularistic confederation of justices of the peace and police magistrates with an overlay of county and state courts. The system's capacity for waste and corruption, as reformers saw it, was bound- less. The fifty-two justices of the peace, who collected their pay in litigants'

25. The interplay of hereditarian and environmentalist ideologies during the Progressive Era has been noted elsewhere. Gordon, Heroes of Their Own Lives, 75.

26. Degler, In Search of Human Nature, 59-211. Hereditarianism is now enjoying a re- naissance. Richard J. Herrstein and Charles Murray, The Bell Curve: Intelligence and Class Structure in American Life (New York: Free Press, 1994). Russell Jacoby and Naomi Glaub- erman, eds., The Bell Curve Debate: History, Documents, Opinions (Times Books, 1995). Robert Wright, "Brave New World Dept.: The Biology of Violence," New Yorker, 13 March 1995, 68.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

fees, allegedly favored perennial litigants. Businessmen complained of end- less delays. Poor litigants, who could not afford an appeal to a backlogged county court, had to accept the justices' rulings. Police magistrates, who heard petty criminal cases, were appointed by the mayor, creating a wide opening for political influence.27 All of this led the progressive daily Record-Herald to protest "the anomalies, the injustice, the oppression, the shame of the so-called justice shops."28

The Municipal Court was not an elite invention imposed upon urban masses. The court campaign grew out of the popular movement to win a new charter- and thus real local power-for Chicago.29 A 1904 amendment to the Illinois Constitution authorized the General Assembly to grant Chicago extensive home- rule powers, including the power to abolish the justice-of-the-peace system and create a municipal court. Under the amendment, home-rule measures required enactment by the assembly and approval of the Chicago voters. Unlike the pro- posed Chicago charter, the Municipal Court Act of 1905-drafted by a committee of businessmen, judges, and attorneys-cleared both hurdles.30 By ratifying the act in a general election, the people of Chicago discarded the arrangement of local justice that had prevailed in the Anglo-American world since the Middle Ages and created the nation's first "modem" court system.

The act's delineation of jurisdictions and powers may not quicken the pulse today, but contemporaries rightly divined a legal revolution in its provisions. The new court possessed all the features that historian Samuel Hays has iden- tified as characteristic of "progressive" reform: centralized decision making, functional organization, and a visible impulse toward efficiency, expertise, and order.31 A network of branch courts unified under a single chief justice, the court's vast jurisdiction included civil complaints, ordinance violations, mis-

27. Gilbert, Municipal Court, 15-18. Herbert Harley, "Business Management for the Courts: As Exemplified by the Municipal Court of Chicago," Virginia Law Review 5 (1917): 1-26. Harry Olson, "The Proper Organization and Procedure of a Municipal Court," reprint from Proceedings of the American Political Science Association (n.p., 1910), 78-96. "Suc- cess of Organized Courts," Journal of the American Judicature Society 1 (1918): 133-51.

28. "For People's Courts of Justice," Chicago Record-Herald, 2 November 1905, 6. See also "To Abolish Justices," Chicago Evening Journal, 22 March 1893; and "Rowe's Attack on the Justice Shop," Chicago Evening Journal, 11 March 1897.

29. On the charter campaign, see Maureen A. Flanagan, Charter Reform in Chicago (Carbondale: Southern Illinois University Press, 1987); and Thomas R. Pegram, Partisans and Progressives: Private Interest and Public Policy in Illinois, 1870-1922 (Urbana: Uni- versity of Illinois Press, 1992), 87-120.

30. Gilbert, Municipal Court, 13-32. 31. Hays, "Preface, 1969," in Conservation and the Gospel of Efficiency: The Progres-

sive Conservation Movement, 1890-1920 (Cambridge: Harvard University Press, 1959), vii- xiii. As Daniel T. Rodgers has noted, "progressivism" was less a monolithic movement than a diverse group of rhetorics and programs. "In Search of Progressivism," Reviews in Amer- ican History 10 (1982): 113-32.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

demeanors, and preliminary jurisdiction over felonies. (If probable cause was found in a felony case, it was turned over to Cook County Criminal Court.) The act empowered the chief justice, who was consciously fashioned after a corporate manager, to set the trial calendar, craft civil procedure, establish specialized branch courts, assign the twenty-seven associate judges to crimi- nal or civil branches, and require them to submit monthly written reports. These powers gave the chief leverage over his associates, who, like him, were elect- ed for six-year terms. "[T]he powers of the chief justice of the Municipal Court of Chicago," Columbia University law professor Raymond Moley later ob- served, "are much more striking and significant than those of the head of any of the state or federal courts of the United States up to the time when the Chicago court was established." With a good word from Governor Charles S. Deneen, the Republican party nominated Harry Olson, a thirty-nine-year-old assistant state's attorney, to be the first chief justice. Olson would hold that office for a quarter century, affording one man an unprecedented opportunity to shape the administration of justice in America's second largest city.32

Reflecting upon his own life history from his chambers on the ninth floor of City Hall, Harry Olson might have concluded that his was a textbook case of sturdy genes triumphing over an unpromising environment. Born to Swed- ish immigrants in 1867, Olson spent his early years in Goose Island, a famously hardscrabble section of Chicago. He came of age in rural Kansas, where he trained for a trade as a carriage painter. But like many an immigrant's son, he created personal opportunity through education. Equipped with a degree from Chicago's Union College of Law (later renamed Northwestern University School of Law), Olson launched a practice as an examiner of real estate titles. After serving as special prosecutor in a sensational murder trial, he clinched a job in 1896 in the state's attorney's office, where he hitched his political for- tunes to the rising star of State's Attorney Deneen, the future governor and United States senator. As a prosecutor, Olson often pressed judges to impose the ultimate penalty, sending seven men to the gallows; many years later, he would conclude that all but one of those men had suffered from a hereditary mental defect and should have been institutionalized. A man whose political ambitions surpassed the local judiciary, Olson sought his party's nomination for mayor in 1915 and 1919. Despite the support of Deneen and Chicago's progressive reform community, the consummate technocrat lost both bids to a boisterous coalition builder, William Hale ("Big Bill") Thompson.33

32. Moley, "Municipal Court," 396. Gilbert, Municipal Court, 257-60. Harley, "Busi- ness Management." "Success of Organized Courts."

33. Douglas Bukowski, "Big Bill Thompson: The 'Model' Politician," in The Mayors: The Chicago Political Tradition, ed. Paul M. Green and Melvin G. Holli, rev. ed. (Carbon- dale: Southern Illinois University Press, 1995), 62, 70. Harley, Moder Experiment, 5-9. Ed- ward R. Kantowicz, Polish-American Politics in Chicago, 1888-1940 (Chicago: University

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

The fledgling Municipal Court and its chief justice quickly won national ac- claim. When President William H. Taft declared in 1909 that the reform of civil

and criminal procedure constituted "the greatest need in American institutions," he voiced a concern close to the heart of the legal profession.34 To many observ- ers, the Municipal Court of Chicago-with its corporate structure, streamlined procedure, specialized branches, and published statistics-showed that courts could still be players in an era when economic conflicts were fast becoming the province of administrative agencies.35 Admirers of this first so-called "organized court" likened it to a moder corporation: "a business man's court organized on business principles ... simply revolutionary," Philadelphia attorney Samuel Scov- ille, Jr., exclaimed to a congressional committee in 1910.36 Commentators bathed Olson in praise, one going so far as to compare his "inventive genius" to that of Edison. Within a decade of the court's creation, "organized" courts modeled after it were established in Cleveland, Milwaukee, Pittsburgh, Buffalo, New York, Atlanta, Philadelphia, Birmingham, St. Louis, and Kansas City.37

of Chicago Press, 1975), 137-40. Albert Nelson Marquis, ed., Who's Who in Chicago: The Book of Chicagoans (Chicago: A. N. Marquis, 1926), 660. Olson, "Crime and Heredity." Harold J. Rust, ed., "Illinois Judicial Who's Who," Illinois Law Review 14 (1920): 442.

34. Quoted in William Bayard Hale, "A Court That Does Its Job," World's Work, March 1910, 12695.

35. Harley, "Business Management," 11, 1-26. Pound, "Organization of Courts." 36. House of Representatives, Committee on the Judiciary, Hearings Before the Committee

on the Judiciary, January 12, 1910, on the Bill H.R. 14552 to Regulate Judicial Procedure, Etc. (As to Writs of Error and Appeals) (Washington: Government Printing Office, 1910), 33-34. Hale, "A Court That Does Its Job," 12697. Urban A. Lavery, "Some Tendencies of Social Legislation," Illinois Law Review 9 (1914): 24-31. John H. Wigmore, "The Most Famous City Court in the World," Illinois Law Review 6 (1912): 591-92.

37. "Editorial," Journal of the American Judicature Society 1 (1918): 131-32. Frederic B. Crossley, "Chief Justice Harry Olson and His Court," Journal of the American Institute of Criminal Law and Criminology 3 (1912): 346. Pound, "Organization of Courts." The claims of legal scholars that the Municipal Court of Chicago served as a national model are well substantiated by local press accounts. "Bar Would Abolish All Minor Courts," St. Lou- is Republic, 6 February 1909. "Chicago's Municipal Court," Birmingham Age-Herald, 24 March 1912. "Chicago's Police Court Explained by Judge Olson," Springfield (Mass.) Daily Republican, 28 April 1910. "A Court That Runs Like a Business Corporation," New-York Daily Tribune, 16 January 1910. "Courts of the People," Buffalo Express, 6 February 1909. "Improving Judicial Machinery," New York Evening Post, 17 March 1909. "Judge Olson Will Speak on Reform," Atlanta Constitution, 22 March 1912. "Municipal Court Would Eradicate Many Evils," Cleveland Press, 2 March 1910. "Reform of the Inferior Courts: A Review of the State Commission's Recommendations," Boston Evening Transcript, 21 February 1912. "Reform of Legal Procedure," Lewiston (Maine) Daily Sun, 16 October 1909. "Urges Cleveland Municipal Court," Cleveland Plain Dealer, 20 March 1910. Still more evidence that the court served as a model are the numerous letters written to Olson by reformers from other cities (including Buffalo, Philadelphia, St. Louis, Cleveland, Atlanta, and San Francisco) in MCC, Boxes 2-3, and JHOP, Box 3. See, e.g., John Alan Hamilton (Buffalo) to Olson, 11 May 1909, MCC, Folder 8.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

The invention of organized municipal courts was part of a larger transfor- mation of American law in the late nineteenth and early twentieth centuries, as the individualistic tenets of the common law came under direct challenge from progressive jurists and legal scholars. After three decades in which state and federal judges regularly struck down legislation that interfered with the market economy or the industrial workplace, progressives attacked common law jurisprudence as archaic and formalistic-too jealous of economic rights to represent the "social interest" in an increasingly interdependent nation. In this revolt against classically liberal legal thought, Morton Horwitz and oth- ers have argued, progressives placed a new premium on social context and ex- perimentalism in public and private law, laying the ideological foundation for workers' compensation, hours legislation for women, and, ultimately, the con- stitutional revolution of 1937.38 There was a parallel move in criminal justice. Progressive reformers deployed the rhetoric of socialized law to centralize local judicial administration and extend the reach of the state deep into the lives of urban populations.

Roscoe Pound called this transformation the "socialization of law."39 In an

influential 1913 article for the Harvard Law Review, Pound argued that the "common law polity" of the nineteenth century-with its particularistic courts, cumbersome procedural protections, and reliance upon traditional social con- trols-had created more bedlam than order in the "modem city." The struc- ture of American legal institutions presupposed an Anglo-Saxon country of farms and villages, but decades of industrialization, immigration, and urban growth had created "the modern city," which Pound portrayed as "a heteroge- neous community, divided into classes with divergent interests, which under- stand each other none too well; containing elements ignorant of our institu- tions." Pointing to the Municipal Court of Chicago as a model, he urged that urban courts be "organized" and their scope of administration broadened to include social and moral jurisdictions once policed by family, church, and community. The simultaneous expansion of state power and attenuation of procedural rights were necessary means to the end of socialized law: to "se-

38. See note 6 above.

39. Pound's vision-that the individualistic common law needed to be reformed to serve

the "social interest"-covered virtually every area of American law. In private law, for exam- ple, he argued that the prevalent late nineteenth-century legal fiction "liberty of contract" was an empty formalism that papered over the real inequalities between employers and workers. Roscoe Pound, "Liberty of Contract," Yale Law Journal 18 (1909): 454-87. See also id., Crim- inal Justice in America (New York: Henry Holt, 1930). Thomas A. Green offers an insightful analysis of the implications of Pound's criminal jurisprudence for notions of human freedom and criminal responsibility in "Freedom and Criminal Responsibility in the Age of Pound: An Essay on Criminal Justice," Michigan Law Review 93 (1995): 1915-2053.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

cure the social interest in the moral and social life of every individual under the circumstances of the moder city."40

Despite their critique of laissez-faire individualism, proponents of socialized criminal justice made the individual deviant-not the larger social structure- the subject of expert scrutiny and state police power. In the administration of local justice, the rhetoric of socialized law demanded that criminals cease to be treat-

ed as members of a single "dangerous class." As early as the 1870s, penal re- formers and welfare activists had lobbied legislatures to give judges and war- dens greater discretion in the disposition of individual offenders. By the century's turn, this agitation had born fruit in the therapeutic disciplinary techniques of indeterminate sentencing, probation, and parole. During the next two decades, American cities created a passel of new courts that specialized in juvenile jus- tice, domestic relations, and public morals.41 Under this new regime of "indi- vidualized treatment," judges would approach each offender as a psychologist or social worker might a "case," taking note of the offender's mental abnormal- ities, family history, and social experience. A rising class of professional social experts found in socialized law a powerful tool for expanding their cultural au- thority and public power. It was not long before specialists in what sociologist Andrew Abbott has colorfully termed the "personal problems jurisdiction"- psychiatrists, psychologists, and social workers-had established themselves as the indispensable personnel of socialized courts.42

The progressive effort to regulate social life was particularly intense in Chicago. Decades of mass industrialization and labor militancy-from the Haymarket bombings to the Pullman Strike to the massive walkouts of 1919- made that city America's epicenter of industrial conflict. During the same era, Chicago negotiated the cultural consequences of three major migration streams: single young men and women from the countryside, the allegedly unassimila- ble "new" immigrants from southern and eastern Europe, and the "Great Mi-

40. Pound, "Administration of Justice in the Modem City," 311, 310, 302-28. Pound's theory rested on assumptions about "modernization" shared by many of his contemporaries in social science. "Chicago School" sociologists posited that modernization (accelerated industrialization, immigration, and urbanization) fostered social "disorganization" (the break- down of family and community relationships), which rendered obsolete the traditional so- cial controls of home, church, and community. Robert E. Park, Ernest W. Burgess, and Roderick D. McKenzie, The City (Chicago: University of Chicago Press, 1925). Paul Boy- er uses a similar framework in Urban Masses and Moral Order in America, 1820-1920 (Cambridge: Harvard University Press, 1978).

41. Rothman, Conscience and Convenience, 43-235. Greater discretion did not neces- sarily entail greater leniency. The introduction of indeterminate sentences often resulted in longer prison terms. Walker, Popular Justice, 149-60.

42. Andrew Abbott, The System of Professions: An Essay on the Division of Expert La- bor (Chicago: University of Chicago Press, 1988), 280-314.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

gration" of African-Americans from the South. A highly creative and fiercely confident generation of middle-class social activists responded to these trans- formations by using a panoply of institutions-ranging from YWCAs to so- cial settlements to museums-to improve physical health and instill middle- class notions of moral order in the city's predominantly immigrant working class. As an instrument of state power, the Municipal Court occupied a privi- leged place among these institutions. "[U]nder Metropolitan conditions a Court has necessarily a profound social duty," Chief Justice Olson thoughtfully ob- served. "[I]t must give a larger meaning to the word 'judicial,' in an age when society is bent upon remedial action, when it is necessary to throw light into the dark corners of our civilization and procure data essential to the construc- tive treatment of social ills."43

Urban women-white, well-to-do, and well-read in law and social science- led many of the state and local campaigns for the creation of socialized courts and shaped their practice in profound ways. The most notable example is Chicago's Juvenile Court Committee, composed primarily of upper-middle- class women from the Hull-House social settlement and the Chicago Women's Club. Committee members Lucy Flower, Jane Addams, and Julia Lathrop (among others) championed the successful campaign to create, in 1899, the nation's first juvenile court in Cook County. In a remarkable display of pri- vate participation in the administration of criminal justice, the Juvenile Court Committee paid the salaries of the court's probation officers and operated the court's detention home until the county assumed those responsibilities in 1907. Soon after, the committee changed its name to the Juvenile Protective Association and began directing more of its attention to public investigations and prosecutions of public immorality in saloons, dance halls, and other ven- ues of working-class sociability that, the reformers believed, generated vice and crime. With the future of the Juvenile Court assured, JPA members set out

to socialize the enormous Municipal Court of Chicago.44

43. Seventh Annual Report of the Municipal Court of Chicago: For the Year December 2, A.D. 1912 to November 30, A.D. 1913, inclusive (Chicago: Municipal Court of Chicago, n.d.), 87. Lizabeth Cohen, Making a New Deal: Industrial Workers in Chicago, 1919-1939 (Cam- bridge: Cambridge University Press, 1990). James R. Grossman, Land of Hope: Chicago, Black Southerners, and the Great Migration (Chicago: University of Chicago Press, 1989). Helen Lefkowitz Horowitz, Culture & the City: Cultural Philanthropy in Chicago from the 1880s to 1917 (Chicago: University of Chicago Press, 1976). Meyerowitz, Women Adrift.

44. Juvenile Court Committee, 1907-1908 (n.p.). The report can be found in the Juve- nile Protective Association of Chicago Papers, University of Illinois at Chicago, Manuscript Collections. Useful accounts of the group's work are Paul Gerard Anderson, "The Good to be Done: A History of [the] Juvenile Protective Association of Chicago, 1898-1976," 2 vols. (Ph.D. diss., University of Chicago, 1988); Louise De Koven Bowen, Safeguards for City Youth: At Work and at Play (New York: Macmillan, 1914); and Davis, American Heroine, 149-56. For a range of perspectives on the Cook County Juvenile Court and juvenile jus- tice generally, see Sanford J. Fox, "Juvenile Justice Reform: An Historical Perspective,"

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

The JPA, like the Juvenile Court itself, promoted a belief in the plasticity of human nature and an environmentalist view of crime and vice. As JPA pres- ident Louise De Koven Bowen wrote in 1914,

The Juvenile Court rests upon two great principles: first, the valuation of the child, resulting in the belief that if he is surrounded by a safe environment and protected from evil associations, he will become a contributor to the wealth, prosperity and good environment of the state, but that if he is neglect- ed, he will become a burden on the community and a danger to society. Sec- ond, the abandonment of retributive justice, for the Juvenile Court does not regard a child under seventeen as a criminal, and its aim is not to punish but to bring about such changes in the child's life, either through the home or through care in an institution, as will fit him for respectable citizenship.45

Good environments made productive citizens; evil environments, criminals; and it was within the power of society, through the instrument of the state, to con- trol this process. These same progressive-liberal assumptions underlay and legitimated the JPA's coercive public campaigns against saloons, dance halls, and cheap theaters-"vicious" places that would tempt innocent youths into disordered lives. It is important to understand, however, that the JPA's envi- ronmentalism was more of an informed sensibility than a rigid ideological commitment, a sensibility reinforced by the women's everyday encounters with

poorly clad, ill-nourished, and uneducated youth offenders from the immigrant neighborhoods around Hull-House. Just as integral to the JPA members' world- view as their much-publicized encounters with the immigrant poor was their valorization of experimentalism, empiricism, and expertise. This faith in mod- em technique would prevent JPA members and like-minded social reformers from rejecting the "scientific" findings and utopian promises of eugenic juris- prudence. Jane Addams herself revealed this receptiveness in her 1913 tract on prostitution, when she wrote hopefully of "the new science of eugenics with its university professors" and "organized societies."46

Stanford Law Review 22 (1970): 1187-1239; Victoria Lynn Getis, "A Disciplined Society: The Juvenile Court, Reform, and the Social Sciences in Chicago, 1890-1930" (Ph.D. diss., University of Michigan, 1994); Helen Rankin Jeter, The Chicago Juvenile Court, U.S. Chil- dren's Bureau pub. no. 104 (Washington, D.C.: U.S. Department of Labor, 1922); Odem, Delinquent Daughters; Anthony M. Platt, The Child Savers: The Invention of Delinquency (Chicago: University of Chicago Press, 1969); Douglas R. Rendleman, "Parens Patriae: From Chancery to the Juvenile Court," South Carolina Law Review 23 (1971): 205-59; Steven L. Schlossman, Love and the American Delinquent: The Theory and Practice of "Progressive" Juvenile Justice, 1825-1920 (Chicago: University of Chicago Press, 1977); Eric C. Schneider, In the Web of Class: Delinquents and Reformers in Boston, 1810s-1930s (New York: New York University Press, 1992); and David S. Tanenhaus, "Policing the Child: Juvenile Jus- tice in Chicago, 1870-1925" (Ph.D. diss., University of Chicago, 1997).

45. Bowen, Safeguards for City Youth, 95. 46. Jane Addams, A New Conscience and an Ancient Evil (New York: Macmillan, 1913),

130-31.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

The JPA and other reform groups wasted no time in socializing the Munic- ipal Court, and they found a ready ally in its chief justice. After 1910, Chief Justice Olson shifted his managerial attention from civil procedure to crimi- nal and quasi-criminal matters,47 and he soon won a new round of public ku- dos by creating a trinity of specialized branch courts, each focused on an as- pect of social life. At the urging of Louise De Koven Bowen, he founded the Court of Domestic Relations in 1911 to hear bastardy, child support, and aban- donment cases.48 After serving on the famous Chicago Vice Commission, he created the Morals Court in 1913 to hear prostitution and obscenity cases. A year later, after Bowen wrote a well-publicized report protesting that the ju- risdiction of Cook County Juvenile Court ended at age sixteen, leaving older "boys" exposed to harsh judges and hardened criminals; with a stroke of his pen, Olson created the Boys' Court, extending the paternalistic style of juve- nile justice to boys aged seventeen to twenty-one. The new courts would have been inconceivable under the old justice-of-the-peace system; functionally specific institutions, they required the central structure of an "organized court" to classify cases and legitimate their discretionary power.49

47. Black's Law Dictionary defines quasi-crimes as "all offenses not crimes and misde- meanors, but that are in the nature of crimes. A class of offenses against the public which have not been declared crimes, but wrongs against the general or local public which it is proper should be repressed or punished by forfeitures and penalties." Henry Campbell Black, Black's Law Dictionary: Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, 6th ed. (St. Paul: West Publishing, 1990), 371. In the shorthand of the Municipal Court, "quasi-crimes" referred specifically to violations of city ordinances: e.g., vagrancy, indecent exposure, carrying a concealed weapon, and the ubiq- uitous "disorderly conduct." Sixteenth, Seventeenth, and Eighteenth Annual Reports, 108.

48. Addams, Bowen, and JPA superintendent Gertrude Howe Britton all participated in the creation of the Domestic Relations Court, and the JPA maintained a close working relation- ship with the institution. JPA members assisted Olson in establishing the court's legitimacy, and judges effectively deputized JPA social workers to investigate hundreds of cases per year in the 1910s. In her address at the court's opening day ceremonies, Addams declared: "Many of us who for years have seen children in poverty and degradation welcome the opening of this court in a manner we can hardly express. In fact it seems to me that since the Municipal courts were started and placed under the direction of Judge Olson there has been one thing after another added to their efficiency, until they are approaching a state where they are the best in the land." "Heart Court in First Act Unites Broken Family," Chicago Evening Ameri- can, 3 April 1911. Juvenile Protective Association of Chicago, Fourteenth Annual Report: Juvenile Protective Association of Chicago, 1914-1915 (n.p.), 14, 23, in JPA Papers.

49. Dawley, "Social Effects," 1-67. Olson, "Municipal Court," 8-10. Judges of special- ized branches regularly published short histories of their courts. See especially Nineteenth, Twentieth, Twenty-First and Twenty-Second Annual Reports of the Municipal Court of Chi- cago: For the Years December 1, 1924 to December 2, 1928, inclusive (Chicago: Municipal Court of Chicago, n.d.), 101-16. A. P. Drucker, "A Study of One Hundrer [sic] Juvenile- Adult Offenders in the Cook County Jail, Chicago, Illinois," Journal of the American Insti- tute of Criminal Law and Criminology 4 (1913): 47-57. Murray Howard Leiffer, "The Boys' Court of Chicago" (Ph.D. diss., University of Chicago, 1928). Claude Willard Sprouse, "The Boys' Court of Chicago" (Ph.D. diss., University of Chicago, 1916).

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

It was no accident that the new specialized branches focused on issues of domesticity, youth, and sexuality. The rhetoric and administrative logic of socialized law required the construction of a recognizable "social" jurisdic- tion that could not be adequately addressed by previous legal structures. The progressives' well-documented alarm over the "breakdown" of the family in urban-industrial society provided sturdy ideological timber for this project. The involvement of women's reform groups like the JPA and the Chicago Women's Club as creators and vocal observers of socialized courts also as-

sured a focus on domestic relations-a gendered jurisdiction of investiga- tion and intervention that women benevolent reformers had carved out for

themselves in the nineteenth century and that women social workers would fight to hold onto in the twentieth. The very word "social," when placed opposite "law" in reform literature, connoted both the "modern" and "sci- entific" techniques of individualized treatment and the jurisdiction of the domestic. In this fashion, a 1913 Handbookfor the Women Voters of Illinois noted the significance of the Municipal Court of Chicago to the causes of newly enfranchised Illinois women: "As a local court it is largely important because of its attempt to treat the cases brought before it from a social as well as from a legal point of view."50

In their everyday practice, the Municipal Court's new branches exhibited the experimentalism and discretionary style of socialized justice. They also reflect- ed a distinctly environmentalist sensibility, as judges and social workers in- vestigated and attempted to remedy the "root causes" of each case. Defendants typically waived their rights to a jury trial, leaving all questions of fact and law to the judges. Judges, who seemed readily to assume their new role as experts in "the social," concentrated on the parties before them rather than the alleged offense. The judges liked to say that their courts transcended the ad- versarial, unsavory environment of a typical city courtroom. For example, a domestic relations judge rhapsodized that his court "sits as a friend to all par- ties before it, and does everything humanly possible toward reconciling the parties, thereby keeping the home intact, giving to the children the protection which they are rightly entitled to, that of a good home, clean and happy sur- roundings."51 Each court had at least one social worker on hand to interview defendants and provide counseling and referrals to charitable agencies; in the

50. Alice Greenacre, A Handbook for the Women Voters of Illinois, ed. Sophonisba P. Breckinridge (Chicago: Chicago School of Civics and Philanthropy, 1913), 46. Kunzel, Fallen Women. Lunbeck, Psychiatric Persuasion, 23-45. Kathryn Kish Sklar, Florence Kelley and the Nation's Work: The Rise of Women's Political Culture, 1830-1900 (New Haven: Yale University Press, 1995), 69-90. For a classic account of the rise of "the so- cial," see Jacques Donzelot, The Policing of Families, trans. Robert Hurley, paperback ed. (Baltimore: Johns Hopkins University Press, 1997).

51. John J. Lupe, "Domestic Relations Branch," in Nineteenth, Twentieth, Twenty-First and Twenty-Second Annual Reports, 101.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

Morals Court, a physician inspected alleged prostitutes for venereal disease.52 The courts kept social statistics, including race and nationality. Paramount to the socialized approach was that judges should enjoy wide latitude in devis- ing "treatments," which ranged from a stem word and probation to a year in the city's workhouse, the House of Correction. As one Boys' Court judge ob- served, "the proper punishment will save this boy for future citizenship."53

For Olson and his JPA supporters, the socialized courts would have been incomplete without the seemingly revolutionary techniques of social investi- gation afforded by a criminological laboratory. Criminological clinics sprang up in reformatories, jails, penitentiaries, and urban courts across America dur- ing the 1910s and 1920s, a logical outgrowth of socialized law and its rheto- ric of scientific investigation, professional expertise, and individual treatment. As Pound put it, "Criminals must be classified as well as crimes."54 Inspired by the new psychological and sociological literatures on adolescence, the wealthy Chicago feminist and JPA member Ethel Sturges Dummer founded the nation's first court-affiliated clinic in 1909 to study offenders in Cook County Juvenile Court. This Psychopathic Institute was officially incorporat- ed into the Juvenile Court a few years later, and court clinics soon appeared in Philadelphia, Boston, Detroit, and other major cities. The new clinics served a dual public function: to assist judges in devising a disposition or "treatment" appropriate for each offender and to conduct policy-shaping clinical research into the "root causes" of crime. "[T]he laboratory idea," Chief Justice Olson breathlessly explained in a public report, "marks a turning point from the tra- ditional policy of society of treating the delinquents as a single large class, by automatic methods, without consideration of the various individual character-

istics which distinguish them, and are now seen to divide them into a number of sharply differentiated classes, each with its separate proclivities, potential- ities, and prognostic characteristics."55 Dr. William Healy, head psychiatrist of

52. Until 1919, these inspections were voluntary. Harley, "Business Management," 12. Under an Illinois statute enacted in 1919 (as part of the wartime panic over venereal disease), local judges were required to send to a hospital, sanitarium, or clinic for an exam- ination any defendant brought before them who appeared "from the evidence or otherwise" to be "suffering from a communicable venereal disease." If a defendant tested positive, the statute declared that "he or she may by order of the court be sent for treatment to a hospital, sanitarium or clinic . . . and if necessary, be segregated for such terms as the court may impose." Quoted in George E. Worthington and Ruth Topping, Specialized Courts Dealing with Sex Delinquency, reprint (Montclair, N.J.: Patterson Smith, 1925, 1969), 11.

53. Edgar A. Jones, "The Boys' Court," in Sixteenth, Seventeenth and Eighteenth Annu- al Reports, 102.

54. Quoted in A. L. Jacoby, "The Psychopathic Clinic in a Criminal Court: Its Uses and Possibilities," Journal of the American Judicature Society 7 (1923): 22, 21-25.

55. Municipal Court of Chicago, Report of the Psychopathic Laboratory of the Munici- pal Court of Chicago, 1 May 1914-30 April 1917 (Chicago: Municipal Court of Chicago, n.d.), 15. V. V. Anderson, "The Immoral Woman as Seen in Court: A Preliminary Report,"

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

the Juvenile Court's Psychopathic Institute, put it a bit more succinctly in a letter to Julia Lathrop of the JPA: "The fundamental question with regard to this whole matter is causation."56

Given the diversity of opinion within criminology on the relative influence of heredity and environment in causing criminal behavior, consensus on this "fun- damental question" would be a long time coming to socialized courts. Striking differences in outlook and practice developed between Dr. Healy at the Juvenile Court's Psychopathic Institute and Dr. William J. Hickson at the Municipal Court of Chicago's Psychopathic Laboratory. These differences were emblematic of this larger fragmentation, and they would prefigure the falling out between Ol- son and his environmentalist allies in the 1920s. Before turning to the operations

of the Municipal Court's Psychopathic Laboratory, then, it will be useful to map the variegated topography of early twentieth-century criminology.

Criminology and the Menace of "Mental Defectives"

Criminal classification and causation were the jurisdiction of criminology. For most of the nineteenth century, "classical" criminologists in Europe and Amer- ica had conceived of criminals as free moral agents who chose to break the law. It followed that punishments should be calibrated to fit crimes in such a way as to deter potential lawbreakers by assuring that the punishment out- weighed their incentive to break the law. In the exceptional case of the insane or idiotic lawbreaker, constitutionally incapable of distinguishing "right" from "wrong," criminal responsibility was suspended. The new "positivist" crimi- nology that emerged in the late nineteenth century fixed its gaze on the crim- inal instead of the crime, and under this gaze heredity loomed large. Cesare Lombroso of Italy, the period's most influential criminologist, proclaimed the existence of "born criminals"-"atavistic" creatures whose criminality was inscribed in bodily "stigmata," including "enormous jaws" and "handle-shaped

Journal of the American Institute of Criminal Law and Criminology 8 (1918): 902-10. Gault, "Prospective Laboratories for the Study of Criminals." Eugene A. Gilmore, "The Need of a Scientific Study of Crime, Criminal Law, and Procedure-The American Institute of Crim- inal Law and Criminology," Michigan Law Review 11 (1912): 50-55. Jacoby, "The Psycho- pathic Clinic." Edward Lindsey, "The Bill to Establish a Criminological Laboratory at Wash- ington," Journal of the American Institute of Criminal Law and Criminology 1 (1910): 103-17. J. H. Murray and Sydney Kuh, "A Psychiatric Clinic at the Chicago House of Correction," Journal of the American Institute of Criminal Law and Criminology 8 (1918): 837-43. Many local reformers wrote Olson seeking information on the court's laboratory. See, e.g., Mrs. William H. Mayhew, Milwaukee County League of Women Voters, to Ol- son, 18 October 1924, MCC, Folder 39.

56. Healy to Lathrop, 4 April 1908, Schlesinger Library, Radcliffe College, Ethel Sturg- es Dummer Papers, Folder 578.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

ears." Enrico Ferri, Lombroso's successor, made heredity central to his intri- cate classification scheme. Criminology at the century's turn was a diverse field, but a general consensus existed that criminals were an abnormal type, largely determined in the crucible of heredity.57

Hereditarian criminology-or "criminal anthropology," as it came to be known in the United States-found a receptive audience in the late nineteenth century among American officials and reformers concerned with prisons and state institutions for the insane or "feebleminded." In their conferences and

journals, welfare reformers and caretakers expressed increasing interest in the link between heredity, feeblemindedness, and criminality.58 New York merchant Richard Dugdale composed the seminal work in the reform literature on crime and heredity. His 1877 book, The Jukes, traced the genealogy of an upstate New York clan whose lineage amounted to seven generations of deviants, prosti- tutes, and criminals-at a cost to the state of $1,308,000 in prison expenses, relief, and medical care. Although Dugdale implicated both environmental and hereditary factors in the making of the Jukes, hard-line hereditarians brandished his work as evidence of the pervasive menace and immense public expense of hereditary defectives.59

It is important to note the distinction between the hereditarianism of Dug- dale's generation and that of eugenicists in Olson's day. In the 1880s and 1890s, the widespread acceptance of Lamarck's theory of acquired characteristics gave a hopeful premise to hereditarianism and to the burgeoning public institutions for the insane and feebleminded: under the disciplinary regime of the asylum, deviants could be reformed into sober, law-abiding citizens-characteristics their children would inherit. But by 1900 German embryologist August Weis-

57. Lombroso quoted in Gould, Mismeasure of Man, 124. Ibid., 122-5. Historians locate the origins of criminology in the late eighteenth and early nineteenth centuries, when Europe- an and American thinkers rejected theological conceptions of criminals as sinners, and human- itarian reformers led campaigns for the abolition of torture and public executions. The central figures of "classical" criminology were Cesare Bonesana, Marchese di Beccaria, and Jeremy Bentham. Harry E. Barnes, "Criminology," in Encyclopaedia of the Social Sciences, vol. 4, ed. Edwin R. A. Seligman (New York: Macmillan, 1931), 584-92. In Discipline and Punish, Michel Foucault challenged the interpretation of these developments as a humanitarian triumph over barbarism, calling critical attention to the essentialization of criminality and the creation of new disciplinary techniques that accompanied the emergence of the prison. For a range of perspectives, see Adam Jay Hirsch, The Rise of the Penitentiary: Prisons and Punishment in Early America (New Haven: Yale University Press, 1992); David J. Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic (Boston: Little, Brown, 1971); and Martin J. Wiener, Reconstructing the Criminal: Culture, Law, and Policy in England, 1830- 1914 (Cambridge: Cambridge University Press, 1990).

58. Trent, Inventing the Feeble Mind, 131-224. 59. Richard L. Dugdale, The Jukes: A Study in Crime, Pauperism, Disease, and Heredi-

ty (New York: Putnam, 1877). Haller, Eugenics, 21-25. Kevles, In the Name of Eugenics, 70-84.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

mann had exploded Lamarckianism. Together with the rediscovery of Men- del's pea studies in that year, Weismann's writings on the continuity of the "germ plasm" gave hereditarianism a harsher edge: heredity as destiny. The message of criminal anthropology meshed well with the new hereditarianism, and during the next two decades criminal "mental defectives" became a fixture of public discourse on welfare and corrections. Walter Femald, superintendent of the Massachusetts School for the Feeble-Minded, expressed a view com- mon among his peers when he wrote in 1908 that "every imbecile... is a potential criminal, needing only the proper environment and opportunity for the development and expression of criminal tendencies.... From a biological standpoint the imbecile is an inferior human being."60

For eugenicists, hereditarian criminology resolved ideological problems and provided a wedge for a broader political program. Since Francis Galton first coined the term "eugenics" in 1883, eugenicists in Europe and America had proposed two quite different public strategies to "keep the lifestream pure." Some eugenicists were content to launch public campaigns to encourage the "fit" to propagate (so-called "positive eugenics"). Others agitated for state programs to sterilize or sexually segregate the "unfit" ("negative eugenics"). The question of "fitness" exposed the most glaring normative assumptions of the eugenicists, and their answers were distorted by class, gender, and racial biases. Politically diverse as eugenicists were, they often quarreled over the criteria of social desirability. But few doubted who constituted the undesirable: "criminals," the "insane," and the "feebleminded" topped every list. Harry Olson noted this strategic point in a speech to the Eugenics Research Associ- ation, the closest thing to a leadership cadre in the American eugenics move- ment. "Being most readily discovered, and most universally abhorred, crime control becomes the first step in the eugenics programme."61

Despite the prominence of hereditarianism, American criminology in the early twentieth century was a field diverse in its professional makeup and ideo- logical possibilities. Criminologists of the era variously attributed crime to poverty, poor education, and other socioeconomic factors; to political factors like police corruption or popular "lawlessness"; or to a range of mental abnor-

60. Quoted in Trent, Inventing the Feeble Mind, 161. Degler, In Search of Human Na- ture, 3-55.

61. Olson, "Crime and Heredity," 11-12. Biologist Herbert S. Jennings noted in 1931 that "Feebleminded, insane, deformed or other markedly defective individuals are clearly less desirable than normal ones, and there is little dissent from the view that the propaga- tion of such groups is not to be encouraged if the defects are congenital. Beyond this the common assumptions of eugenicists are that vigor and health are more desirable than weak- ness and proneness to disease and that higher degrees of efficiency, adaptability and intelli- gence are more desirable than lower degrees. It is mainly in deciding concretely what indi- viduals fall within the preferred groups that question and dissension arise." Id., "Eugenics," in Encylopaedia of the Social Sciences, vol. 5, 620-21.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

malities caused by heredity or environment-or to any combination of the above. In 1910, Olson served with Dr. Healy and the influential sociologist Edward A. Ross on a committee of the American Institute of Criminal Law

and Criminology at Northwestern University to develop a system for record- ing criminal data. The experts consulted by the committee suggest the extraor- dinary range of contemporaries interested in criminology: philosopher Josiah Royce, anthropologist Franz Boas, and psychologist G. Stanley Hall shared the roster with lesser-known caretakers and professionals in the "personal prob- lems jurisdiction." The proposed recording system, drafted primarily by Healy, was thoroughly interfaith on causation. Giving equal attention to heredity and environment, it called for a medical exam, psychological tests, and even psy- choanalysis. In retrospect, the system seems naive: proper administration would have required a costly team of physicians, psychiatrists, psychologists, and social workers. Still, it suggests the depth of its authors' interest in root caus- es, experimentation, and fact gathering, and their desire to enlarge the role of "personal problems" experts in the courts. The system also plainly conveys the permeability of hereditarianism and environmentalism in 1910.62

Specialists in the emerging professions of psychiatry and psychology were leaders in early twentieth-century criminology. For psychiatrists, socialized courts, like the new psychopathic hospitals invented in the same period, pro- vided an opportunity to extend their cultural authority beyond the walls of the asylum and the jurisdictional confines of insanity. "Psychiatrists could no long- er limit their activities and responsibilities to the institutionalized mentally ill," historian Gerald Grob writes of the mental hygiene movement. "They had to lead the way in research and policy formulation, and to implement methods in such areas as mental hygiene, care of the feebleminded, eugenics, control of alcoholism, management of abnormal children, [and] treatment of crimi- nals."63 As Elizabeth Lunbeck has argued, psychiatrists broadened their juris- diction by claiming expertise on "normal" living and everyday human rela- tions-the field of "the social," where "the issues of personal identity and gender relations with which contemporaries were so concerned could be le- gitimately addressed."64 In the process, psychiatrists inadvertently secured entry onto the same interpretive ground for specialists in the behavioral sciences of psychology and sociology. The psychologists' chief contribution to criminol- ogy was the intelligence test, a novel device that enabled criminologists to quantify with apparent objectivity the mental abnormality of offenders.65

62. [William Healy], "A System for Recording Data Concerning Criminals," Journal of the American Institute of Criminal Law and Criminology 1 (1910): 84-97. "Sins of Father Save Son," Chicago Daily Tribune, 23 December 1909.

63. Grob, Mental Illness in American Society, 145. See also Abbott, System of Profes- sions, 297-98.

64. Lunbeck, Psychiatric Persuasion, 23. 65. Sokal, ed., Psychological Testing.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

Following their higher-status peers in medicine, psychiatrists in the Progres- sive Era shifted their attention from the study of symptoms to etiology, the contested terrain of causation. Despite a general interest in heredity, psychia- trists remained divided over the causes of mental illness. The practices of many institutions, including the celebrated Boston Psychopathic Hospital, were dom- inated by the classification schemes of Emil Kraepelin and the German "or- ganicists," who treated psychiatric problems as disease entities that correspond- ed to brain lesions. Although lesions might be caused by injury, the organicists' materialist perspective made them particularly receptive to hereditarian find- ings. After 1915, the organicists increasingly came under attack from the "dy- namicists," including Adolph Meyer and William Healy, who rejected general theories of mental illness and stressed the interdependence of biology, physi- ology, and social experience.66 For the pragmatically inclined dynamicists, rigidly hereditarian etiology-and especially its eugenicist variety-became increasingly untenable.

Professional disagreement among psychiatrists was no novelty in American courts, where (as any prosecutor or defense attorney knew) dueling alienists had long been a familiar feature of trials that involved an insanity defense. Through- out the early twentieth century, psychiatrists tried, with limited success, to per- suade legislatures to abandon the nineteenth-century insanity standard-a de- fendant's capacity to distinguish "right" from "wrong"-for a broader inquiry into a defendant's mental makeup.67 Still, the organicism-dynamicism debate, which echoed the larger debate between hereditarianism and environmentalism, would shape the practices of socialized courts in ways far more subtle and pow- erful than a simple clash of views. Nowhere were the lines of this disciplinary debate so clearly drawn as in Chicago, which in the 1910s emerged as Ameri- ca's center of court psychiatry. Nowhere were the human consequences of this debate so apparent.

Contemporaries and historians alike have named William Healy of the Ju- venile Court's Psychopathic Institute as the innovator of a new style of crim- inal psychiatry that rejected hereditarianism and advanced a "therapeutic" agenda.68 It is seldom noted, however, that Healy came gradually to a thera- peutic approach. In 1912, he served on the Eugenics Committee of the Illinois State Conference of Charities and Corrections, which passed resolutions fa- voring marriage restrictions for the feebleminded, alcoholics, and people with tuberculosis. But the open-minded Healy embraced dynamic psychiatry, and his application of it in his analysis of young offenders at the Psychopathic

66. Grob, Mental Illness, 120, 108-78. Lunbeck, Psychiatric Persuasion, 117-20. 67. Sheldon Glueck, "Psychiatry and the Criminal Law," Virginia Law Review 14 (1928):

155-81.

68. Barnes, "Criminology." Davis, American Heroine, 171. Id., Spearheads for Reform: The Social Settlements and the Progressive Movement, 1890-1914 (New Brunswick, N.J.: Rutgers University Press, 1967, 1984), 56.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

Institute gradually led him to conclude that environmental factors were the chief cause of delinquency. In a move that anticipated the child guidance clinics of the twenties, Healy adopted a therapeutic approach that aimed to normalize delinquents-not to quarantine them from society. "We have not the slightest inclination to place delinquents as such in a list of abnormal individuals," he wrote in his influential 1915 treatise, The Individual Delinquent. "In view of the immense complexity of human nature in relation to complex environmen- tal conditions it is little to us even if no set theory of crime can ever be suc- cessfully maintained." Regarding the Lombrosian category of the "born crim- inal," Healy was similarly adamant. "Of course, mental defectives and epileptics and others, especially if brought up in bad environments, may be re- garded as having secondarily criminal dispositions," he wrote, "but placing them in this category tells us nothing of worth concerning them." The psychi- atrist continued to take heredity into account, but hereditarian theories struck him as indefensible, and worse, unconstructive.69

Chief Justice Olson postponed the opening of the Boys' Court until he had secured funding for a psychopathic laboratory from the City Council.70 In his search for a suitable psychiatrist to direct the laboratory, the judge naturally consulted Healy. But Olson, who had already begun to write favorably on eugenics, took the advice of Princeton psychiatrist Stewart Paton and recruit- ed a psychiatrist with impeccable organicist credentials.71 An American neu- rologist, Dr. William James Hickson had studied in some of Europe's most famous psychiatric centers: the clinics of Emil Kraepelin in Munich, Eugen

69. William Healy, The Individual Delinquent: A Text-Book of Diagnosis and Prognosis for All Concerned in Understanding Offenders (Boston: Little, Brown, 1915), 4, 781. See also William Healy and Augusta F. Bronner, "Report of the Juvenile Psychopathic Institute- December 1, 1916," in Cook County, Illinois, Juvenile Court and Juvenile Detention Home, Annual Reports of the Chief Probation Officer, Director Psychopathic Institute, Superinten- dent Juvenile Detention Home, Attending Physician at Home, 1916 (n.p.). Patrick Almond Curtis, "Eugenic Reformers, Cultural Perceptions of Dependent Populations, and the Care of the Feebleminded in Illinois, 1909-1920" (Ph.D. diss., University of Illinois at Chicago, 1983), 79. Rothman, Conscience and Convenience, 54-56.

70. "Fire and Police Bonds Favored By Committee," unidentified newspaper clipping, Harry Olson Disassembled Scrapbooks, Box 1, "Political 1914" file. The Psychopathic Laboratory operated on an annual appropriation from the Chicago City Council; by 1921, the appropriation had reached only $15,000, though the Municipal Court judges bolstered the laboratory's budget by placing several of Hickson's employees on the regular payroll as clerks of the court. Harry Olson to Alroy S. Phillips, 21 January 1921, JHOP, Box 5. Mu- nicipal Court of Chicago General Orders, vol. 16 (1921-1930), Cook County Circuit Court Archives.

71. Harry Olson, "A Constructive Policy Whereby the Social Evil May be Reduced," address before the Seventh Annual International Purity Congress, Minneapolis, 9 Novem- ber 1913 (n.p.). Id., "Organization, Procedure, and the Psychopathic Laboratory," address before the Iowa State Bar Association, 25 June 1920 (n.p.), 9-10.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

Bleuler in Zurich, and Theodor Ziehen in Berlin. When Olson spotted him, Hickson was working under psychologist Henry H. Goddard at the Training School for Feeble-Minded Boys and Girls in Vineland, New Jersey, the pre- mier American center for psychological testing. At the time, Goddard was a committed eugenicist and the leading exponent of theories linking mental deficiency and crime. As director of the Psychopathic Laboratory from 1914 to 1929, Hickson would create a fascinating synthesis of organic psychiatry and eugenic criminology.72

In founding the Psychopathic Laboratory on eugenic principles, Olson could count on the support of a broad and varied eugenics constituency in Illinois, where eugenics had gained a following of social workers, psychiatrists, super- intendents, and welfare reformers. Hereditarianism justified the burgeoning populations within state institutions for the insane or feebleminded, which by 1914 housed twenty thousand residents. Institution Quarterly, the organ of the State Board of Administration, frequently published favorable articles on eu- genics, and like their counterparts in other states, Illinois caretakers pointed to hereditary defects to explain their failure to rehabilitate their wards.73 Al- though most caretakers considered sterilization too extreme, many approved of their institutions' function of compulsory sexual prophylaxis via sex-seg- regated housing. Harry Hardt, superintendent of the Lincoln State School and Colony for the feebleminded, noted that his institution served as "an adjunct to nature in her selective power."74 It was precisely to such audiences that eu- genicists directed their message about criminal mental defectives. "By segrega- tion or sterilization," Goddard told the Illinois Conference of Charities and

Corrections in 1913, "we could, in a generation or two, reduce the number of our dependent classes enormously and save from a fourth to a half of the ex- pense of our criminals, our paupers, to say nothing of the moral degradation and disease engendered by our prostitutes."75

Like many other states in the teens, Illinois joined a spreading panic over the "menace of the feeble-minded." A capacious nineteenth-century term, "fee- blemindedness" was applied by professional experts and welfare workers to an array of mental deficiencies, including many now believed to be caused or

72. Cravens, "Applied Science," 158-94. Henry H. Goddard, The Kallikak Family: A Study in the Heredity of Feeble-mindedness (New York: Macmillan, 1912). Id., The Crimi- nal Imbecile: An Analysis of Three Remarkable Murder Cases (New York: Macmillan, 1915). Edward S. Scheffler, "The History of the Psychiatric Institute of the Municipal Court of Chicago," in A Dynamic Era of Court Psychiatry, 1914-1944, ed. Agnes Sharp (Chicago: Municipal Court of Chicago, 1944), 9.

73. Olson in Report of the Psychopathic Laboratory, 14. Curtis, "Eugenic Reformers," 90. Haller, Eugenics, 24-25. Nathan William MacChesney, "Race Development by Legis- lation," reprinted from Institution Quarterly 4 (Springfield, Ill., 1913).

74. Quoted in Curtis, "Eugenic Reformers," 71. 75. Quoted in Trent, Inventing the Feeble Mind, 165.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

exacerbated by poor nutrition and substandard education. By the 1910s, psy- chologists had subdivided the feebleminded into three categories: the "idiot," whom psychologists today might call "profoundly mentally handicapped"; the "imbecile," who might now be called the "trainable mentally handicapped"; and the "moron," who matches today's profile of the "educable mentally hand- icapped."76 To welfare workers and professional experts, and to the public offi- cials who heeded their alarmist message, the "moron" posed the greatest pub- lic threat. Intelligent enough to commit a crime and escape apprehension, the high-grade feebleminded person was, in the eyes of experts and laypeople alike, innately driven to criminal behavior.

At the Vineland Training School for Feeble-Minded Boys and Girls, God- dard reified feeblemindedness as a unitary characteristic (like eye color) and amassed genealogical data to prove that the condition was hereditary. The fee- bleminded lacked sexual self-control and could not distinguish right from wrong, he argued. As psychological testing of prison populations began to suggest a high incidence of mental defect, Goddard and others publicized the link between criminality and feeblemindedness. By the mid-teens, the discourse of "the menace of the feebleminded" had spilled over from welfare circles and professional journals into popular culture, popularized by the propaganda of the Carnegie Institution's Eugenics Record Office and a pulp heap of books on rural "misfits." Legislatures responded to the panic by passing a wave of commitment and sterilization laws for the "mentally defective."77

In 1914, A. A. McCormick, the progressive president of the Cook County Board of Commissioners, organized a group of Chicagoans to draft a bill for the involuntary commitment of the feebleminded. (At the time, parents could remove feebleminded children from state institutions, and adults could not be

held against their will.) Calling itself the Illinois Committee on Social Legis- lation, the group included Edward H. Ochsner, president of the State Chari- ties Commission, the former psychologist at Lincoln, and Olson. The commit- tee's alarmist stance is evident in a letter Ochsner sent Olson. "The care and

treatment of the feeble-minded is of tremendous importance in our State," he wrote. "Many solutions have been suggested for the problems which this class of our people have imposed upon society."78

Correspondence between Ochsner and Olson shows that the judge played an instrumental role in the passage of the 1915 commitment act. Olson pro- posed revisions, convened his associate judges to assess the bill's legal merit,

76. Noll, Feeble-Minded in Our Midst, 3. 77. Curtis, "Eugenic Reformers," 112. Gould, Mismeasure of Man, 158-74. Haller,

Eugenics, 125-43. Kevles, In the Name of Eugenics, 76-80. Rock Slyster, "The Physical Bases of Crime as Observed by a Prison Physician," reprinted from Bulletin of Academy of Medicine 14 (1913). Trent, Inventing the Feeble Mind, 131-224.

78. Ochsner to Olson, 15 March 1915, MCC, Folder 27.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

and even dispatched a judge to Springfield to lobby on its behalf.79 The act, which easily passed both houses of the General Assembly, broadly defined "feeble-minded person" as any "mentally defective" person "incapable of managing himself and his affairs or of being taught to do so, and requires su- pervision, control and care for his own welfare, or for the welfare of others, or for the welfare of the community." The act vested policing powers in the state's "reputable" citizenry: a commitment petition could be filed by "any relative, parent, guardian, conservator or friend of such supposed feeble-minded person, or any reputable citizen of the county in which such supposed feeble- minded person resides or is found." After a hearing, a "commission" composed of two physicians or one physician and a psychologist would examine the in- dividual. A circuit, county, or city court judge would review the commission's recommendations and make a final ruling to commit or discharge the individ- ual. Olson contributed a significant passage to the law: if a judge in a misde- meanor or criminal trial believed that the defendant was feebleminded, the judge could continue the case and order the filing of a commitment petition.80

The Juvenile Protective Association's support for the act demonstrates the capacity of state institutions to shape-rather than simply implement-progres- sive ideology. The evidence suggests that the operations of the Municipal Court's new Psychopathic Laboratory helped persuade the environmentalists to endorse a eugenic measure. In her 1914 book, Safeguardsfor City Youth, Bowen described the group's stunned reaction to Hickson's first results with defendants from the Boys' Court. "While we all anticipated that a certain num- ber of the boys would be sub-normal, we were hardly prepared for the first figures," she recalled. "During the first three weeks after the establishment of the laboratory, 95 boys brought into the court were found to be sub-normal; many of them with the intelligence of a little child, although with the body and passions of a man." The JPA president was especially moved by the case of one "huge fellow" who had brutally slain his employer and his employers' family. According to Hickson's tests, the boy possessed a mental age of eight- and-a-half years and suffered from dementia praecox. "Had his stature attained only the growth of his mind," Bowen wrote, "he would have lacked the strength to have accomplished a murder and his outbreak would have been regarded with the leniency we accord to the tantrums of a child." Taking Hickson's sci- entific findings at face value, Bowen drew her prescriptive conclusion: "Is not society under obligations to place such a boy in a school fitted to his intelli-

79. Ochsner to Olson, 29 March 1915, MCC, Folder 27. Ochsner to Olson, 13 April 1915, Folder 28. Ochsner to Olson, 19 April 1915, Folder 28. Olson to Ochsner, 20 April 1915, Folder 28. Ochsner to Olson, 6 May 1915, Folder 28. Harry Olson, "Objection to the So- Called Schofield Bill," Folder 29. Curtis, "Eugenic Reformers," 146-58.

80. "An Act to Better Provide for the Care and Detention of Feeble-Minded Persons," Illinois Revised Statutes, 1925, ch. 23, sec. 346. Curtis, "Eugenic Reformers," 155-58.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

gence, to keep him there during his life, with a self-supporting occupation, that he may not be a source of danger to the community?"81 A vote for permanent institutional commitment of "subnormal" lawbreakers is not equivalent to a vote for eugenic jurisprudence. That the JPA provided in its 1915 Study of Mentally Defective Children in Chicago, which sounded an alarm over the dangers of mentally defective prostitutes. "It is a well-known fact that prosti- tutes and other dissolute women are mentally defective," the author declared. "Segregation of these women, at least during the childbearing period, would not only benefit public morals but would considerably lessen the number of the feeble-minded in the next generation."82

The 1915 commitment act indicated the breadth of support for eugenic ju- risprudence in Illinois. And as the JPA's endorsement demonstrated, to sup- port eugenics in 1915 did not require hostility toward environmentalism. That same year, the City Council convened a much-touted Committee on Crime, chaired by Alderman Charles E. Merriam, the University of Chicago political scientist. The laboratory had been open for only a few months, but already the committee saw its promise. "The Psychopathic Laboratory renders indispens- able service in diagnosing cases and indicating treatment for defective delin- quents," the committee opined. With a confidence emblematic of the era, the committee declared that the "chief causes of crime" were both "defective"

physical and mental conditions and "defective environment." Modem judicial administration demanded the best that science had to offer. The committee

urged that the laboratory be expanded.83

Eugenic Jurisprudence in Practice

Occupying cramped quarters near the socialized branch courts in Chicago's City Hall, the Psychopathic Laboratory was no Pasteur Institute. The labora- tory equipment consisted of little more than a handful of European visual memory tests, some of which Hickson revised to his own purposes. The tests were conducted by the doctor, his wife Marie, and one or two women psychol- ogists. The doctor himself compiled the findings and drew astonishing con- clusions from them.84

81. Bowen, Safeguards for City Youth, 124-25. 82. John E. Ransom, "A Study of Mentally Defective Children in Chicago," Institution

Quarterly 6 (1915): 49-50, quoted in Curtis, "Eugenic Reformers," 101. The full report is Ransom, A Study of Mentally Defective Children in Chicago, an Investigation Made by the Juvenile Protective Association (Chicago: Hale-Crossley Printing, 1915).

83. Chicago City Council, Report of the City Council Committee on Crime, 22 March 1915, 12, 15.

84. For the definitive statement of Hickson's work, see Report of the Psychopathic Laboratory.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

Hickson's writings, which Olson faithfully published in the Municipal Court's widely disseminated annual reports, were a mix of psychiatric theo- ry and political economy that aimed as much to sell the laboratory as to ex- plain it. Following the narrative conventions of eugenics propaganda (and of much early twentieth-century reform writing), Hickson wove a Whiggish account of crime and punishment in the West: a long ascent from the maim- ing of the Middle Ages to the "cruel" solitary confinement of the Jacksonian penitentiary and finally, in the bright light of modem science, to the applied theories of criminal psychiatry. Criminology, Hickson wrote, was still battling the sentimental tradition of environmentalism. "The environmentalists ... are

to criminology what the anti-evolutionists are to science in general," he charged. "They are pseudo-scientific meddlers whose thinking is dominated by their feelings, wishes and prejudices and who close their minds against established fact."85 Drawing an organicist analogy between criminality and disease, Hickson said that the state imperative was clear: to "develop the sci- entific administration of the law as it is doing in medicine, to go to the root of things in order that intelligent treatment may be undertaken, looking for a successful solution to the problem."86

Synthesizing the insights of his European mentors with those of Goddard, Hickson laid out his theory and methodology in a four-hundred-page Report of the Psychopathic Laboratory in 1917. The jargon ran thick-one critic said it defied the comprehension of "ordinary people"-but Hickson's claims were quite straightforward. The psychiatrist, like many of his professional peers, believed in simple functional locations of the brain: the upper brain was the seat of intelligence; the lower brain, the site of emotion or "affect." Whereas Goddard had linked criminality to a hereditary defect of intelligence (feeblemindedness), Hickson's chief innovation was his claim that "defec- tive intelligence" posed a minor threat next to "affective defect." While he took complicating factors such as alcoholism and "sex perversions" into account, Hickson claimed that most criminality was caused by a single type of hereditary affective defect, dementia praecox. First developed by Krae- pelin and Bleuler, the category covered a range of disorders that were part of the family, so to speak, of schizophrenia. Apathy and lack of remorse were characteristic; criminality, almost inevitable. "We see the determining role

85. Hickson, "Socio-Economics of Crime and Criminals," in Sixteenth, Seventeenth and Eighteenth Annual Reports, 178. Report of the Psychopathic Laboratory, 19-21.

86. Hickson, Report of the Psychopathic Laboratory, 21. Hickson made his influences clear in a characteristically self-congratulatory fashion: "On the subject of the Psychopath- ic Constitution we have followed in substance Ziehen; on that of Dementia Praecox, Bleul- er. [sic] and in the remaining psychoses and classifications, Kraepelin. In feeble-minded- ness we have relied on various American, English, French and other continental writers and authorities. A writer's status in this field can be estimated from the discrimination he uses

in his quotation of authors and authorities." Ibid., 32-33.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

of dementia praecox as the great causative factor," Hickson observed, "the leit motif of crime."87

Although dementia praecox had become a routine diagnosis in American psychiatric institutions during the teens, the claim that a definite causal link existed between the disorder and criminality was controversial.88 Whereas Hickson discovered dementia praecox in 1,146 out of 3,259 individuals (35 percent) who crossed his threshold from 1914 to 1917, William Healy and other dynamic psychiatrists viewed the matter more cautiously.89 "In some quarters it has been the tendency to over-estimate the percentage of cases belonging in the dementia praecox group which one meets with among young offenders," Healy wrote. "Certainly in not more than 25 cases in our 1000 young repeat- ed offenders [2.5 percent] have the symptoms been interpretable as belonging in any way to dementia praecox."90 Of course, Healy was examining younger offenders than Hickson, which might have accounted for part of the discrep- ancy between the doctors' findings. But while Hickson conceded that in many cases dementia praecox might first "become patent around the ages of 17 or 18," he insisted that this "great causative factor" could be detected "even in the earliest years of childhood."91 This difference of professional opinion was anything but academic-it was political, each position carrying a different prescription for state action. Whereas Healy favored therapeutic "treatments" such as probation, Hickson viewed a diagnosis of dementia praecox as sufficient cause for indeterminate institutional commitment to prevent future criminal behavior-and future criminals.

Hickson tested offenders for the presence of "affective defect" through a series of tests, including the Ziehen Memory Test and his own version of the Binet-Simon Intelligence Scale. The Binet-Simon test was ubiquitous in ear- ly twentieth-century America. A series of scaled tasks used to compare the test- taker's mental and chronological ages, it was the principal metric used by psy- chologists and psychiatrists in their aggressive pursuit of cultural authority through psychological testing, which culminated in the notorious "Alpha" and "Beta" tests of American servicemen during World War I. (According to the test results, the average white American adult possessed a mental age of thir- teen or fourteen-hovering just above the intelligence level of a "moron"; eugenicists deployed the new data as further evidence of impending racial catastrophe.) Revised by Lewis M. Terman at Stanford University, the Binet- Simon scale served as the basis of the IQ Test.92

87. Gilbert, Municipal Court, 94-95. Hickson, Report of the Psychopathic Laboratory, 31, 28-48. Curtis, "Eugenic Reformers," 126.

88. Lunbeck, Psychiatric Persuasion, 127-30. 89. Singer, "Deranged or Defective Delinquent," 794-95. 90. Healy, Individual Delinquent, 594. 91. Hickson, Report of the Psychopathic Laboratory, 31-32. 92. Gould, Mismeasure of Man, 146-233. Sokal, ed., Psychological Testing. For a bril-

liant contemporary critique of intelligence testing, see Walter Lippmann, "The Mental Age

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

Hickson's use of the Binet-Simon Intelligence Scale illustrates the danger- ously slippery science of biological determinism. When the French psycholo- gist Alfred Binet devised his test, he did not intend to provide an exact mea- sure of human "intelligence." According to Stephen Jay Gould, Binet "greatly feared that his practical device, if reified as an entity, could be perverted and used as an indelible label, rather than as a guide for identifying children who needed help."93 Binet's fears proved prescient. Goddard, who first popularized the Binet scale in America, claimed it measured a unitary "intelligence." Hick- son pushed the test further still. He used the test, he explained, "not only as [a] test for intelligence per se but also for primary disturbances of the intelli- gence function as found in paresis, senile dementia, narcotism, such as alco- holism, morphinism, cocainism, etc. We have also extended its use in an equally wide and important field in the psychoses, such as various forms of dementia praecox, manic-depressive insanity, hysteria, etc." In addition to pushing the Binet-Simon scale far beyond its author's intentions, Hickson applied only part of it in his diagnoses: a visual memory test, which consisted of a series of drawings that the test-taker would briefly view and then attempt to duplicate. The memory test was the essence of Hickson's methodology, his caliper of hereditary "mental defect."94

Judge Olson incorporated eugenic jurisprudence into the workaday routine of the Municipal Court. He instructed judges in the criminal and socialized branches

to be on the lookout for "defectives" among their defendants, plaintiffs, and even witnesses. Judges were expected to send suspected "defectives" to the laborato- ry for an exam. Though Hickson claimed to submit a full written report to the judge on each case, his diagnosis and recommendation were often transmitted with a phone call. The judge then enjoyed a range of options: he could commit the individual to a state institution for the "insane" or "feeble-minded," devise a

probation regimen, or ignore Hickson's report completely.95 Olson liked to say that the laboratory's case pool was Chicago itself, a

modem metropolis whose ability to centralize crime and vice seemed to rival its capacity to centralize the production, marketing, and distribution of every imaginable commodity. Although Cook County Criminal Court had final ju- risdiction over felonies, the judge noted that all felonies committed in the city had a preliminary hearing in the Municipal Court. "The result is that our field

of Americans," New Republic, 25 October 1922, in Bell Curve Debate, eds. Jacoby and Glauberman, 561-65.

93. Gould, Mismeasure of Man, 151, 146-74. 94. Report of the Psychopathic Laboratory, 170. 95. Report of the Psychopathic Laboratory, 13. Singer, "Deranged or Defective Delin-

quent," 797-98. In addition to the 1915 feebleminded commitment act, judges could com- mit defendants under Illinois's 1893 "lunatic" act, "An Act to Revise the Law in Relation to the Commitment and Detention of Lunatics ... " Illinois Revised Statutes, 1925, ch. 85, sec. 1-38.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

affords ample material for the study of the more serious offenders, those who have committed homicide, robbery, rape and other felonies." Yet the over- whelming majority of the people examined in the laboratory were not such "hardened" criminals. They were sent by judges in the socialized courts. In a breakdown provided by Hickson of 4,447 cases examined in the laboratory during its first three years, 2,025 came from the Boys' Court, 1,236 from the Domestic Relations Court, 947 from the Morals Court, and only 329 from the regular criminal branches. This disparity is particularly significant because tak- en together the criminal branches handled a much larger caseload than the so- cialized branches. In 1916, for example, the criminal branches disposed of more than 120,000 cases; the three socialized courts combined disposed of slightly more than 15,000 cases during the same year.96

This disparity says something important about the relationship between the laboratory and the Municipal Court as a whole. When confronted with adult defendants accused of violent crimes or crimes against property, judges showed little interest in a psychiatric exam. They were far more likely to seek the lab- oratory's advice in adjudicating offenses committed in the morally ambigu- ous sphere of "the social": vice, domestic disputes, and youth offenses. It was within this area that eugenic jurisprudence had its greatest effect upon the life chances of defendants.97

Given the location of the Psychopathic Laboratory, at the heart of a munic- ipal court system, it is no surprise that its subjects were mostly people employed (or unemployed) in working-class occupations. In a 1924 study entitled "So- cio-Economics of Crime and Criminals," Hickson provided an occupational breakdown of 1,002 consecutive cases sent to the laboratory from the crimi- nal branches. Of 825 males examined, fully 26 percent were laborers; 6 per- cent, clerks; 5 percent, factory hands; 4 percent, machinists; 4 percent, team- sters; 3 percent, painters and decorators; 3 percent, chauffeurs; 2.5 percent, mechanics; 2 percent, tailors; and 2 percent, janitors. Those were the top ten occupational classifications represented. From the professional categories, exactly two lawyers, two ministers, and nine "professions" made the list. Of 177 females, 33 percent were domestics; 12.5 percent, factory hands; 7.5 per- cent, waitresses; 6 percent, store clerks; 5 percent, tailors; 5 percent, house- wives; 3.5 percent, laundry workers; 3.5 percent, telephone operators; 2 per-

96. Olson in Report of the Psychopathic Laboratory, 9-10. Tenth and Eleventh Annual Reports, 46-51. On Chicago's national reputation as a crime center, see "Crime in Chica- go," New Republic, 6 November 1915, 7; and Lawrence Howe, "Crime and the Courts in Chicago," Nation, 24 September 1930, 315.

97. In the 1920s, the criminal branches accounted for a larger percentage of Hickson's caseload, but even then most of the defendants examined in the laboratory had been charged with disorderly conduct and other minor offenses against public order. Singer, "Deranged or Defective Delinquent," 798-803.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

cent, farm workers; and 2 percent, dishwashers. Hickson claimed broad signifi- cance for these findings: "Such data are indispensable to political economy and government." But he did not specify how. A similar occupational breakdown could be found in the court's statistics on men and women admitted to adult

probation-a very different disposition than that which awaited "mental de- fectives." Fully 68 percent of the men and a staggering 87 percent of the women in Hickson's sample were committed to state institutions for the insane or fee- bleminded.98

The largest pool of women came to the laboratory from the Morals Court on charges of prostitution or public immorality. As Joanne Meyerowitz has shown in her study of wage-earning women in Chicago, the influx of single women from the hinterland in the early twentieth century posed a real chal- lenge to the city's gendered social order. Whether turning to prostitution in order to survive in an economy that undervalued their labor or pursuing per- sonal pleasure through dating, single working-class women and their sexual practices incited moral panic among the city's middle-class reformers.99

Judge Olson and Dr. Hickson joined numerous other government officials, moral reformers, and psychiatrists in the Progressive Era in interpreting this reorganization of gender relations as evidence of an epidemic of feeblemind- edness that only state action could eradicate. Like many of their peers, Olson and Hickson claimed that at least half of the professional prostitutes working in American cities were feebleminded. The introduction of the Binet-Simon

intelligence test in 1908 had coincided with the proliferation of urban vice commissions and foundation studies of women offenders, giving investigators a scientifically legitimate metric to assess the hereditary mental defect of "im- moral women."'1? The causal significance attributed to mental defect meshed

98. Hickson, "Socio-Economics," 183, 178-82. "Adult Probation," in Sixteenth, Seven- teenth and Eighteenth Annual Reports, 117. A comparable occupational breakdown is not available for cases sent to the laboratory from other branches. However, case histories in- cluded in Report of the Psychopathic Laboratory, which Hickson claimed were "typical," reveal a similar preponderance of working-class people. Of thirty-seven Boys' Court cases, thirteen had fathers who were laborers; the other fathers included a machinist, an express- man, a printer, a "chronic thief," and a "gambler." The mothers, only three of whose occu- pations were mentioned, included two factory workers and a laundry worker. Report of the Psychopathic Laboratory, 367-80.

99. Meyerowitz, Women Adrift. 100. By the end of World War I, more than fifteen studies of mental defect among Amer-

ican prostitutes had reported that 30 to 98 percent were feebleminded. Mark Thomas Con- nelly, The Response to Prostitution in the Progressive Era (Chapel Hill: University of North Carolina Press, 1980), 41. Steven Schlossman and Stephanie Wallach have argued that the treatment of female juvenile delinquents in the Progressive Era was part of a larger reaction to a cultural revolution in sexuality and gender roles. Young women, they found, were far more likely than young men to be arrested on public morals charges and were dispropor- tionately incarcerated. Schlossman and Wallach, "The Crime of Precocious Sexuality."

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

well with the progressive moralists' view of prostitutes as helpless victims of industrialization, a vicious urban environment, and unscrupulous men. "The fact that so large a per cent[age] of the women engaged in public prostitution are mentally deficient removes the stigma of disgrace from womanhood," O1- son claimed.101 The real effect of the discourse on women offenders' alleged mental subnormality was exactly the opposite: it gave their culturally deter- mined moral "stigma" the scientific status of a biologically determined fact. And in a growth period for eugenics legislation across the United States, the search for mental defect among prostitutes could result in lifetime commitment and sterilization.

For Hickson, women offenders were an easy case. "In the matter of recidi- vism, the Morals Court cases take the lead over all others, which is quite natu- ral since the majority of these girls are too feeble-minded or psychopathic to make

a living legitimately," he wrote in 1917. Of 793 women defendants sent to the laboratory from the Morals Court between 1914 and 1917, Hickson found that 464 suffered from some sort of psychopathological condition, and he labeled 471 of the women "morons."'02 The court's records provide no indication of what was done with these women, but the special enthusiasm of Morals Court judges for the laboratory in the 1910s suggests they did not fare well. Morals Court Judge Harry Fisher wrote in 1917 that Hickson's work had "brought a new vision" to the Morals Court. "A few months' experience in that court, aided by the advice of the laboratory's findings, enables the judge to detect these unfortunate crea- tures without much trouble."'03 Fisher's confidence in his ability to spot defec- tives from the bench was perfectly in keeping with the rhetoric of socialized law, which boasted that rationally organized administrative courts could uncover the "social facts" underlying deviant behavior. Because judges were faced daily with recidivist prostitutes-whose recalcitrance challenged hegemonic norms of sex- ual propriety and whose reappearance in court reflected badly on judges' claims to social expertise-it is not hard to imagine the appeal that "mental defect" might have for them as an explanation.

Olson and Hickson clearly shared some of the racist assumptions of extreme American eugenicists. Eugenics is formally a "racial" theory, concerned as it is with matters of hereditary endowment and the bloodlines of allegedly "nat- ural" social groups. In societies structured by racial conflict and oppression, the racialism of eugenics yielded virulent scientific racism. The racist strain of American eugenics provided a prominent argument for the immigration restriction acts of the 1920s; in Nazi Germany, eugenics laid the scientific

101. "A Constructive Policy," 15. 102. Report of the Psychopathic Laboratory, 92, 93-106. Hickson did not provide in-

formation on the other women sent to the laboratory by the Morals Court in those years. 103. Tenth and Eleventh Annual Reports, 90.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

foundation for mass "racial" extermination. Chief Justice Olson repeated the common claim that foreign nations were deliberately flooding the United States with mental defectives, and he lamented the "mongrelization of our people."104 Blatant racism surfaced again in the treatise on sterilization legislation writ- ten by the court's research associate, Harry H. Laughlin. (The Zelig of the eugenics movement, Laughlin served at various times as assistant director of the Eugenics Record Office, "expert eugenical agent" of the House Commit- tee on Immigration and Naturalization, and expert witness in Buck v. Bell.) In the treatise Laughlin cited the case of a white woman committed to the New Jersey State Village for Epileptics. To buttress his case that the woman should be sterilized, Laughlin noted that she had admitted having sex with a "colored" man. "This patient did not possess the normal aversions of a white girl to a colored man," he wrote, noting Smith's "hypersexuality which is common in defectiveness."105 That Olson would publish Laughlin's report-indeed applaud it-suggests he found such views inoffensive. For eugenicists, as for white Americans generally, willful transgression of racial boundaries provided con- crete evidence of deviance.

More surprising than such scattered evidence of conventional racist beliefs, however, is the reticence of eugenic jurisprudence advocates about race. Ol- son and Hickson made no effort at all to use eugenic jurisprudence to further criminalize African-Americans and immigrants as social groups.106 In the re- ports of the Municipal Court and the Psychopathic Laboratory-public docu- ments published in a city where immigrants (and increasingly blacks) held considerable political power-questions of race and nationality were subsumed

104. Nineteenth, Twentieth, Twenty-First and Twenty-Second Annual Reports, 17-18. Ol- son, Disease and Crime. Sheila Faith Weiss, Race Hygiene and National Efficiency: The Eugenics of William Schallmayer (Berkeley: University of California Press, 1987).

105. Harry H. Laughlin, Eugenical Sterilization in the United States: A Report of the Psychopathic Laboratory of the Municipal Court of Chicago (Chicago: Municipal Court of Chicago, 1922), 296. Allen, "The Eugenics Record Office at Cold Spring Harbor." Haller, Eugenics, 131-34, 138-39, 155-57.

106. Even in the American South, eugenicists and sympathetic state politicians did not use eugenic measures to enact large-scale institutionalization or sterilization of African- Americans. In fact, the southern story is one of neglect rather than race hygiene. Tight wel- fare budgets and rigid policies of racial segregation in state institutions meant that most southern states made no provision at all for the institutionalization of feebleminded blacks. Since southern sterilization statutes reserved the measure for inmates of state institutions, African-Americans were underrepresented among southerners sterilized under eugenics laws. The southern situation points up the extraordinary complexity of eugenics policy: the con- tradictory aims of care and control, and the effects of fiscal constraints and local political cultures. It seems that southern legislators and reformers trusted in other legal measures of segregation-Jim Crow and antimiscegenation laws-to control African-Americans and keep the "races" apart. Noll, Feeble-Minded in Our Midst, 89-103.

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

within the larger discussion of mental defect. Race and nationality were of- ten, but not always, mentioned in case histories published by the laboratory.'07 Although commitment forms called for racial and ethnic data, no analysis of race or nationality in the laboratory was ever published. The unsystematic in- clusion of ethnic and racial data suggests that Hickson and Olson thought it relevant, but not essential, to their program. This helps explain why Chicago's African-American elites-always quick to protest racial inequities in the ad- ministration of criminal justice-did not see eugenic jurisprudence as a threat to their community. The weekly Defender even alerted its readers to the dan- gerous mental defectives "roaming about the city." "No matter how near or dear these people are to us," the paper opined, "we owe it to the public, to the un- fortunates and to ourselves, to throw every safeguard possible around them to prevent their doing some crime for which we cannot hold them in any way responsible."108

Eugenic jurisprudence conflated a host of social and health problems into a tableau of working-class "pathology" rooted in defective genes. Hickson packed his reports with stark "case histories," which he used to establish the hereditary defectiveness of his examinees and their relatives-and, no doubt, to strike ter- ror in the reader. These histories further illustrate the essentialist and value-lad-

en assumptions that underlay Hickson and Olson's "scientific" jurisprudence. The histories are litanies of addiction, alcoholism, incest, tuberculosis, domestic vi-

olence, illiteracy, illegitimacy, and desertion. Almost every individual has a rel- ative described as "worthless." "[T]here is a deadly monotony in the sameness throughout all these cases," Hickson wrote, undermining his claim that the lab- oratory considered each case individually. After 1917, Hickson's contributions to the court's annual reports diminished. "Results have been uniformly corrob- orative of the findings first reported," Olson explained.109

Although many court clinics in the Progressive Era experimented with eu- genics, none committed itself more firmly than the Psychopathic Laboratory,

107. In a collection of thirty-seven case histories of Boys' Court defendants, for exam- ple, six were identified as "American," four as "colored," twelve as children of immigrants, and fifteen were not identified by nationality or race. Report of the Psychopathic Laborato- ry, 367-80. The form Hickson filled out as a commissioner in feebleminded commitment cases asked him to identify the race and nationality of defendants and their parents. Of thir- ty-four consecutive surviving cases, from November 1915 to September 1917, the break- down of defendants' nationality and race is as follows: eight native-born, parents unknown; one native-born, parents native; three "Negroes"; three first- or second-generation Italians; two first- or second-generation Germans; two first- or second-generation Polish; one Rus- sian Jew; one "Jew"; and thirteen unidentified (though most of the latter defendants had surnames suggesting eastern or southern European descent). Feeble-Minded Commitment Cases, Cook County Circuit Court Archives, Box 1. Haller, Eugenics, 144-57.

108. "Demented People," Chicago Defender, 12 August 1916. 109. Hickson in Report of the Psychopathic Laboratory, 367. Olson in Sixteenth, Sev-

enteenth, and Eighteenth Annual Reports, 14.

100

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

and it could not have done so without the support of the Municipal Court's judges.?10 The associate judges routinely signed orders authorizing pay increas- es and new staff for the laboratory, and judges of the socialized branches of- ten adopted the laboratory's jargon as their own: Judge Francis B. Allegretti, for example, wrote that his Boys' Court "is really a Clinic, separating the pa- tients into various classes of mentality and criminality."11' Morals Court Judge Charles Goodnow held forth on the mental defectiveness of "delinquent girls" in public speeches and cited the laboratory's data in his campaign for marriage restriction laws, telling the Woman's City Club in 1916 that "The marriage license window is an open way to the destruction of the national health and morals, with the ultimate certainty of irreparable race degeneracy.""2 More significant than the judges' appropriation of Hickson's ideas was their routine approval of his recommendations for institutional commitment.

In 1929, Chicago psychiatrist H. Douglas Singer compiled a report on "The Deranged or Defective Delinquent" for the influential Illinois Crime Survey. Singer traced the outcomes of 154 cases referred to the Psychopathic Labora- tory from November to December, 1927. Hickson had recommended 111 (72 percent) for commitment in the Cook County Psychopathic Hospital and sev- en (4.5 percent) for commitment to the Lincoln State School and Colony for the feebleminded. The laboratory's propensity to recommend commitment, Singer observed, was "extremely high when compared with the recommenda- tions from the Recorder's Court of Detroit (6 per cent), from the Municipal Court of Philadelphia (2 per cent) and from other clinics of this type."'l3 Equal- ly startling was Singer's discovery that the Municipal Court of Chicago judg- es had followed Hickson's recommendations for commitment in 105 of the 118

cases (89 percent). This proportion, too, was exceptionally high. At Boston's Judge Baker Foundation, judges followed clinic recommendations in only one of five cases (20 percent). Singer wryly noted the stunning significance of these figures: "The findings at the Chicago clinic indicate either: (1) that the selec- tion of cases for examination is made with great accuracy and acumen, or (2) that the diagnoses and recommendations are very greatly colored by the per- sonal views of the director as to the need of commitment."1'4

110. Haller, Eugenics, 101. 111. Nineteenth, Twentieth, Twenty-First and Twenty-Second Annual Reports, 109. For

an example of judges' approval of laboratory staffing, see Order No. 518, Municipal Court of Chicago General Orders, vol. 16 (1921-1930).

112. "Goodnow Urges Eugenics Law To Save Race," Chicago Examiner, 23 June 1916. "Goodnow Tells Why Girls Fall," Chicago Daily Tribune, 9 November 1916.

113. Singer, "Deranged or Defective Delinquent," 801. Evidence from the feebleminded commitment case files supports this observation. In the thirty-four consecutive surviving cas- es from 1915-1917, all but six defendants were committed. Feeble-Minded Cases, Box 1.

114. Singer, "Deranged or Defective Delinquent," 801,799-801. The Judge Baker Foun- dation figure has led David Rothman mistakenly to conclude that the role of the psychiatric clinics in juvenile justice was "inconsequential." Conscience and Convenience, 245, 247.

101

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

The laboratory's operations were a striking (if controversial) display of state power, but they were not always intrusive or unwelcome among the working- class families who composed much of the laboratory's case pool. Feebleminded commitment case files from the Municipal Court reveal a pattern of family self- policing similar to that historians have found in juvenile courts, where work- ing-class parents called upon the state to help them regulate their "unruly" children. Petitioners in feebleminded cases were overwhelmingly parents or family members, who claimed before the court that they could no longer "con- trol" or afford to keep their "feeble-minded" and "delinquent" children at home.115 One self-described "anxious mother" penned a letter to Olson in 1920 thanking him for his efforts to establish a farm colony in Illinois for feeble- minded boys. "They are too good to be in Jail and not bad enough to be in an insane asylum," she wrote. "[M]y Boy is almost 19 yrs old and it has been a case of Vigilance with me to keep him out of trouble."'16 Although working- class parents had their own reasons for committing their children, their will- ing participation in the court's eugenics jurisprudence underscores Elizabeth Lunbeck's poignant insight about social policing: "Historically, it has proven far more palatable to blame the police for unjustly incarcerating the innocent than to imagine that the power that delivers them up to the authorities might be distributed throughout the social body, exercised by many and sustained by the troubled relations of everyday life."'17

And what of the alleged "mental defectives" themselves-these "unruly" youths, "hypersexual" women, and "worthless" men? It is a bitter irony that in the voluminous archival residue of this pioneering center of "individual treat- ment" the individuals so treated have no voice. Sheaves of visual memory tests record the scrawl of unsteady hands or inattentive minds-or unpromising art- ists. The salacious "case histories" published by the laboratory are boilerplate in their monotony and devoid of trustworthy personal detail. The words penned onto commitment petitions are copied from the commitment laws, set down by a court clerk as a routine matter. But if we can no longer hear the voices of the "defectives," if we lack a record of their thoughts on the merits or injustices of

eugenic jurisprudence, we can at least infer something from their actions. For not all of the men and women committed by the court acquiesced in their "treat- ment." In the years following passage of the 1915 Feeble-Minded Commitment

115. Feeble-Minded Commitment Case Files, Boxes 1-10, 1915-1919. Of the thirty-four consecutive cases from 1915 to 1917, petitioners were as follows: fourteen mothers, five fathers, two aunts, one brother-in-law, three social workers, one police officer, one court official, one nurse, one caretaker, and five unrelated parties who identified themselves as "interested" in the defendant's welfare. Box 1. Gordon, Heroes of Their Own Lives. Odem, Delinquent Daughters.

116. "An anxious Mother" to Harry Olson, 2 February 1920, JHOP, Box 3. 117. Lunbeck, Psychiatric Persuasion, 83.

102

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

Act, the population at the Lincoln State School and Colony, increasingly made up of alleged young lawbreakers and sex offenders, shook the institution's walls with vandalism, riots, and assaults.118 Those committed by the Municipal Court to the state's psychopathic hospitals were no more compliant: during one year in the late 1920s, a quarter of them escaped. Acts of personal liberation in the most literal sense, the escapes' political significance was not lost on well-placed critics of eugenic jurisprudence. As Dr. Singer noted in the Illinois Crime Sur- vey, "These facts suggest that many of the persons who are committed as a re- sult of recommendations from the laboratory of the Municipal Court cannot be adequately cared for in the state hospitals."119 The rebellious acts of the "defec- tives" undermined the legitimacy of eugenic jurisprudence at a time when it was under attack from other quarters.

Eugenic Jurisprudence in a Hostile Environment

Even at the height of their influence, American eugenicists-whether in the courtroom or the statehouse, the university laboratory or on the Chautauqua stage-faced charges that their scientific claims overreached their evidence and that their state programs trampled fundamental liberties. Indeed, eugenicists disagreed among themselves whether their programs should be experimental and voluntaristic-such as public awareness campaigns to encourage "fit" marriages-or coercive-such as state-enforced marriage restrictions and com- pulsory sterilization of the "insane," "feeble-minded," or "habitually criminal." For many critics of eugenics, the entire eugenics project was misguided. From the outset, Catholics protested eugenical sterilization and marriage restriction laws as unconscionable state encroachments on the sacred terrain of reproduc- tion. As early as 1905, the governor of Pennsylvania voiced widely shared humanistic doubts about eugenics as he vetoed a sterilization bill. "Scientists, like all other men whose experiences have been limited to one pursuit-some- times need to be restrained," he wrote. "Men of high scientific attainments are prone, in their love for technique, to lose sight of broad principles outside of their domain of thought."'20 And the strong flavor of class legislation and ar- bitrary justice in eugenic statutes made them sitting ducks for judicial review. During the war years, state appellate courts scrapped a half-dozen sterilization measures, finding in them violations of the due process and equal protection clauses of the United States Constitution. It is fitting that one of the most acidic contemporary critiques of eugenics dripped from the pen of Clarence Darrow,

118. Curtis, "Eugenic Reformers," 160-61. 119. Singer, "Deranged or Defective Delinquent," 802. 120. Quoted in Critchlow, "Keeping the Life Stream Pure," 348.

103

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

the fabled Chicago criminal defender and counsel for John T. Scopes. "Amongst the schemes for remolding society this is the most senseless and impudent that has ever been put forward by irresponsible fanatics to plague a long-suffering race," Darrow wrote in a 1926 article entitled "The Eugenics Cult."'21

In the mid-twenties, many American "personal problems" professionals, so- cial scientists, and women reformers joined the rising tide of opposition to eu- genics and began to distance themselves from hereditarianism. Major founda- tions, aware of geneticists' sharpening skepticism about eugenics, began to reject grant applications from eugenics organizations, deeming their work too unsci- entific or zealous. (There were many notable exceptions: the Carnegie Institu- tion of Washington, despite growing reservations, supported the Eugenics Record Office until its demise in 1939.) In academic social science, the concept of "cul- ture," pioneered by anthropologist Franz Boas, began to overtake evolution and heredity as the chief explanation of human behavior and social structure. In psy- chiatry, psychology, and social work, professionals increasingly spoke the ther- apeutic language of "adjustment" and "normal" living. The new idiom preserved the optimistic tenor of environmentalism while diverting attention from the so- cioeconomic "root causes" that had engaged progressive reformers; transform- ing the social environments that produced criminality, deviancy, and dependency now seemed less important than adjusting the individual deviant's "personality." New institutional practices accompanied this shift in discourse, as psychiatrists promoted outpatient services for the mentally ill and superintendents of institu- tions for the feebleminded redefined sterilization as a precondition for parole- not lifelong commitment. All of these changes were gradual and incomplete. But they spelled trouble for advocates of eugenic jurisprudence, making their de- mands for wider jurisdiction and increased state intervention more difficult to justify to politicians and the public.'22

The significance of these changes for the reform project of socialized crim- inal justice is evident in the increasingly critical stance taken by the Juvenile Protective Association toward the Municipal Court of Chicago's eugenic ju- risprudence. Convinced by William Healy's work in the Juvenile Court clinic and at the Judge Baker Foundation in Boston, the JPA embraced therapeutic psychiatry, an orientation better suited than eugenics to the group's hopes for reforming young lawbreakers. Rather than openly attack Judge Olson, their ally in socializing the Municipal Court, JPA members tactfully urged him to remain at the cutting edge of scientific jurisprudence by embracing the new theory of adjustment.

Ethel Sturges Dummer, the Chicago philanthropist who provided the initial funding for Healy's Psychopathic Institute, boldly attempted to reeducate 01-

121. Clarence Darrow, "The Eugenics Cult," American Mercury, June 1926, 137. 122. Critchlow, "Keeping the Life Stream Pure," 346. Degler, In Search of Human Na-

ture, 59-211. Kunzel, Fallen Women, 44. Trent, Inventing the Feeble Mind, 198-206.

104

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

son in an illuminating series of letters. "Years ago you and Dr. Hickson took a long stride ahead in recognizing the need of psychiatry in the courts," Dum- mer wrote Olson in 1923. She urged him to read sociologist W. I. Thomas's The Unadjusted Girl and noted the success of therapeutic methods in refor- matories for delinquent girls. "Now, women who are not even psychologists are making cures which even the wisest of us have not solved, yet which we must accept. At least they are teaching us new possibilities ... in the improv- ability of human beings."123 The diplomatic tone of Dummer's correspondence changed abruptly after she visited the Psychopathic Laboratory later that year. Her reaction typifies the JPA's increasingly hostile position toward eugenic jurisprudence: "I was considerably alarmed and surprised to find that Dr. Hick- son not only gave no hope of improvement or correction after having come to an unfavorable decision in cases which reached his laboratory, but I found myself entirely out of sympathy with his open statement of this belief in the presence of patients."'24

A dramatic departure from Louise De Koven Bowen's praise for the labo- ratory a decade earlier, Dummer's criticisms were representative of the JPA membership and environmentalist social reformers generally in the 1920s. In 1925, the JPA and other advocates of socialized justice organized a conference to commemorate the twenty-fifth anniversary of the Cook County Juvenile Court and the fifteenth anniversary of its Psychopathic Institute.'25 A showcase for the new environmentalism of therapeutic psychiatry, the conference made no mention of the JPA's former enthusiasm for eugenics. Dr. Healy, now re- siding at the Judge Baker Foundation, lectured on his dynamic psychiatry and therapeutic approach. Sessions emphasized the new work on "behavior adjust- ments" and the "preventive work" being conducted in the new child guidance clinics attached to public schools. Planning the event, Dummer had tentative- ly placed Olson on the program. The opposition was anything but tentative. Grace Abbott, the former Hull-House resident and chief of the federal Chil- dren's Bureau, told Dummer "this would never do, that he was too unscien- tific."126 In more politic terms, Julia Lathrop agreed, but she proposed an in- teresting compromise. "It seems it might be noticeable if he were not invited to take part and I should think the program might be so arranged that the con- trast between what has been done under his supervision and that which seems scientifically sound to men in whom you have greater confidence could be set forth in a manner convincing to reasonable minds without too much offense."127

Like the delinquents themselves, Olson might prove capable of adjustment.

123. Dummer to Olson, 11 December 1923, Dummer papers, Folder 694. 124. Dummer to Olson, 18 December 1923, Dummer Papers, Folder 694. 125. The anniversary's organizers published a volume of papers in conjunction with the

event. The Child, The Clinic and the Court (New York: New Republic, 1925). 126. Dummer to Julia Lathrop, 7 December 1924, Dummer Papers, Folder 636. 127. Lathrop to Dummer, 13 December 1924, Dummer Papers, Folder 636.

105

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

The judge responded politely to the JPA's overtures, and he continued to serve on the organization's board, as he had done since the early teens. But the JPA's reeducation plan failed miserably.128 Throughout the twenties, O1- son remained an unregenerated exponent of eugenic jurisprudence, even when his efforts to widen its application failed to convince a majority of legisla- tors in his own state. While social reformers promoted mental hygiene and the psychiatry of adjustment, Olson took his cause on the road, trumpeting the cause of eugenical sterilization in speeches to state teachers' associations and Daughters of the American Republic chapters, businessmen's clubs, and law enforcement associations. As Holmes's decision in Buck v. Bell suggests, the figure of the criminal mental defective still had salience in the legal com- munity in the late twenties, and Laughlin's report, which included a model law for the sterilization of any individual who was a potential parent of an unfit offspring, aided the passage of statutes in several states.'29 But the cause proved unsuccessful in Illinois, where attempts to pass sterilization laws in 1925, 1927, 1929, and 1933 encountered fierce opposition from religious groups and the bar.130 "Our group of workers has followed eugenical steril- ization in all of its aspects from the legalized beginning of such work in

128. Olson to Dummer, 31 December 1923. Olson to Dummer, 7 January 1924. Dum- mer Papers, Folder 694.

129. The demand for copies of Eugenical Sterilization in the United States, which im- mediately became the authoritative treatise on American sterilization legislation, was enor- mous. Olson and his clerks received hundreds of requests for the report from university libraries, law professors, sociologists, political scientists, zoologists, attorneys, bar associa- tions, judges, congressmen, state departments of education and welfare, public school teach- ers, sanitarium superintendents, foundations, social hygiene organizations, ministers, and, of course, committed eugenicists in the United States and Europe. Princeton biologist E. G. Conklin praised the volume in a letter to Olson, saying "I am confident that it will be of the very greatest service in promoting eugenical education and practice in the United States." Conklin to Olson, 27 January 1923, JHOP, Box 8. Correspondence concerning Olson's speaking engagements can be found in MCC, Folders 37-42, and JHOP, Boxes 3, 4, 6, 7, and 8.

130. H.B. 231 (1925), "An Act to provide for the sterilization or asexualization of in- mates of any of the State institutions afflicted with insanity, idiocy, epilepsy, imbecility and feeble-mindedness," Journal of the House of Representatives of the General Assem- bly of the State of Illinois, vol. 54 (Springfield: State Printers), 115. H.B. 69 (1929), "An Act to provide for the sexual sterilization of inmates of State institutions for the insane, feeble-minded or mentally defective, in certain cases," ibid., vol. 56, 141. H.B. 251 (1929), "An Act to provide for the sexual sterilization of inmates of State institutions in certain cases," ibid., vol. 56, 208. H.B. 768 (1933), "An Act to provide for the sexual steriliza- tion of inmates of State institutions in certain cases," ibid., vol. 58, 738. In 1927, the Il- linois Senate passed a sterilization bill, which was tabled in the House. S.B. 403 (1927), "An Act to provide for the sexual sterilization of inmates of State institutions in certain cases," Journal of the Senate of the General Assembly of the State of Illinois, vol. 55 (Springfield: State Printers), 845.

106

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

1907," Olson wrote two years after Buck v. Bell. "[T]he road is now open for its much wider application."131

A further demonstration of Olson's intransigence was his proposal for the creation of two Chicago "crime prevention bureaus," a plan that would deputize the full range of local and state officials to police "mental defectives." One bu- reau, to be housed within the Department of Health, would treat mental defect as a public health threat. "[G]ive them the same right summarily to pick up the insane, dementia praecox, paranoic, manic-depressive and paretic as they now have to lay hands on the typhoid carrier, smallpox sufferer, the syphilitic and other

contagious cases," Olson urged in the court's 1928 annual report. A second bu- reau in the Police Department would compile secret lists of local defectives, aided by the sharp eyes of well-educated citizens. "[T]he teachers will be the most important factors and are in the front line of attack," the judge wrote. "Behind the teachers are the physicians, the police, the lawyers, the courts, the lawmak- ers and statesmen.... Unless we invoke these methods the criminal conditions

will grow and the mongrelization of our people will progress."132 Olson presented his bureau scheme at a luncheon hosted by the Chicago

Crime Commission, but it was met with polite disinterest.'33 A powerful coa- lition of businessmen, editors, and attorneys, the commission represented a style of criminal justice reform that was becoming increasingly dominant in America during the new era of prohibition and organized crime. A hard-line deterrence perspective infused reform initiatives and criminal justice institu- tions at every level of government during the 1920s and 1930s, a period Sam- uel Walker has called the "crime control decades."'34 Whereas a Progressive Era agency like the Chicago Vice Commission investigated the "root causes" of a social problem, the new urban crime commissions and the elaborate crime surveys of the late 1920s emphasized effective administration. "The Chicago Crime Commission has but one object-the minimizing of crime," its presi- dent Edwin W. Sims declared in 1922. "It cares not who commits the crime-

the wealthy citizen or the ragged stranger. Time, place, social and financial ratings make no difference."'35 The commission's perspective was closer to that of the "classical" criminologists of the nineteenth century than to that of ei- ther the eugenicists or the environmentalists of the teens: deterrence advocates rejected theories of crime that emphasized sociological or psychological fac- tors and thereby reduced an offender's responsibility. Never openly critical of

131. Twenty-Third Annual Report, 14. Curtis, "Eugenic Reformers," 4. 132. Nineteenth, Twentieth, Twenty-First and Twenty-Second Annual Reports, 17-18. 133. "In Crime Conference," Bulletin of the Chicago Crime Commission, 10 December

1924, 1-20. 134. Walker, Popular Justice, 161-93. 135. Edwin W. Sims, "On Crime Conditions in Chicago," Journal of Criminal Law and

Criminology 13 (1922): 105.

107

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

Olson, who shared their passion for efficient administration, the Crime Com- mission nevertheless declined to support Olson's eugenic jurisprudence at a time when it badly need a political boost.136

In the late twenties, Harry Olson-institution builder nonpareil-began to lose authority over his own system. In 1925, the corporation counsel of Chicago ren- dered an opinion that shifted the Psychopathic Laboratory to the Department of Public Health, depriving the chief justice of the power to designate the labora- tory's director. The opinion does not appear to have been an attack on eugenic jurisprudence; it was justified as a means of putting the laboratory on a surer fiscal

footing, and the health commissioner let Hickson stay on as director until Hick- son resigned in 1929. Only then did the real consequences of the opinion for the Municipal Court's eugenics program emerge. When the health commission- er searched for someone to replace Hickson, eugenicist psychiatrists were an increasingly rare and disreputable species-by then even Henry Goddard had muffled his hereditarian rhetoric. The commissioner appointed Meyer Solomon, a Chicago doctor whose perspective on the relationship of crime to mental health was in tune with the psychiatry of adjustment.'37

That same year, Olson released his final annual report. Solomon's contri- bution on the Psychopathic Laboratory mentioned heredity once-in passing. Solomon wrote compassionately of the "behavior problems" of his wards, their "chronic" addictions and "disorders of personality." "The object of the labo- ratory is to examine not merely committable mentally disordered and mental- ly retarded persons," he stressed, "but this other far larger group of cases." Like Hickson before him, Solomon included a few "illustrative cases." One man, whose wife had deserted him, developed "nervous and mental strain," took to moderate drinking and forged a few checks; Solomon secured a probation order and sent him to a convalescent home "for a sufficient period of mental rest." The laboratory's procedure was still invasive: the staff compiled personal his- tories, interviewed family members, and charted the individual's habits and education, "his personal mental struggles and disappointments, his ideals and attitudes in life." Solomon left no mystery as to what became of the people he

136. In contrast to both the environmentalist and eugenicist conceptions of criminal cau- sation, Crime Commission members insisted that criminals were eminently rational-even worse, they were professionals. "The business of crime is being more expertly conducted," a commission leader once explained. "Ours is a business nation. Our criminals apply busi- ness methods. They are the hardest criminals in the world to combat." Henry Barrett Cham- berlin, "Crime as a Business in Chicago," Bulletin of the Chicago Crime Commission, 1 October 1919, 1.

137. City of Chicago, Department of Health, Report of the Department of Health of the City of Chicago for the Years 1926 to 1930 Inclusive (Chicago: Chicago Printers, 1931), 345- 57. Scheffler, "History of the Psychiatric Institute," 9-10. Twenty-Third Annual Report, 13. On Goddard in the late twenties, see Trent, Inventing the Feeble Mind, 166.

108

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

examined: after one year, 43 percent of them had been committed. A "thera- peutic" approach to criminality had arrived in the Municipal Court.'38

Olson buried Solomon's entry at the back of the annual report, loading the report's introduction with eugenics information and bookending Solomon's account with an essay on "Mental Defectives and the Criminal Law." Near the front of the report, Olson printed a full-page photograph of an Austrian statue of Mendel, proposing that one like it be built in Chicago. "The Municipal Court Laboratory has heretofore stressed the importance of heredity as a cause of crime and of much human misery and sorrow," Olson wrote. "Perhaps nowhere has the operation in the human of Mendel's law been demonstrated as it has been demonstrated in this laboratory."'39

Of that much at least, the sixty-two-year-old judge could be certain. In November 1930, Chief Justice Harry Olson of the Municipal Court of Chica- go lost the position he had occupied for a quarter century, defeated in a city- wide Democratic sweep.

Conclusion

In 1944, the Juvenile Protective Association hosted a fund-raising gala to cele- brate the thirtieth anniversary of the Psychiatric Institute of the Municipal Court of Chicago. The laboratory's name had been changed in 1932, the commemo- rative literature gently noted, to alleviate the stigma attached to being examined there. The institute now aimed to "promote normal thought and action." Espe- cially for the event, the court published a retrospective volume entitled A Dy- namic Era of Court Psychiatry. The authors took a harsh view of eugenic juris- prudence and suggested that a long battle with primitive ideas had been won when a therapeutic approach superseded eugenics. One contributor to the volume, a social worker, had dug up an annual report from the Olson era, which she de- scribed as "almost a violent reminder of the distance that has been traversed in

the field of psychiatry since the early days." Briefly abandoning her Whiggish tone, the social worker made a candid observation about the relationship between environmentalists and the laboratory: "It was not necessary for the developing social work profession to agree with the Psychopathic Laboratory in its early years to recognize the great value of the establishment."'40

138. Meyer Solomon, "Municipal Psychopathic Laboratory," Twenty-Third Annual Re- port, 98, 96-105. Polsky, Therapeutic State.

139. Twenty-Third Annual Report, 13. Dwight G. McCarty, "Mental Defectives and the Criminal Law," in ibid., 106-16. Curtis, "Eugenics Reformers," 129.

140. Scheffler, "History of the Psychiatric Institute," 10. Sarah Schaar, "The Institute as I Know It," in Dynamic Era, 13, 15. It is particularly appropriate that Schaar made this comment. In 1919, while a social worker with the Associated Jewish Charities, Schaar had

109

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Law and History Review, Spring 1998

Environmentalists and eugenicists had not been locked in a fierce battle for institutional hegemony in America's model "socialized" court. As the relation- ship between Harry Olson and the JPA clearly shows, they had enjoyed a pro- ductive coexistence as they together transformed criminal justice during the Progressive Era. On the surface, the ideological divide between environmen- talism and eugenics is clear. One located the roots of crime in the troubled social relations and urban culture of industrializing America; the other natu- ralized criminality as the product of biologically determined mental defect. As idioms of reform and technologies of governance, however, both eugenics and environmentalism gave reformers the means to "socialize" the Chicago courts. The creation of socialized courts-centralized state institutions that would

police moral jurisdictions once left to family, church, and local communities- required political justification, as did the new discretionary powers of judges and the presence of psychiatrists, psychologists, and social workers in the courts. Eugenics and environmentalism provided convincing scientific rheto- rics to support these developments, and in an era of experimentalism in Amer- ican law, they offered "humane" and "efficient" ways to organize and address the contemporary crisis of public order. For eugenicists and environmentalists, as the alliance between Olson and the JPA clearly shows, a common commit- ment to socialized justice temporarily outweighed the seemingly irreconcilable differences in their conceptions of human nature. In the case of the environ- mentalists, the achievement of a common ground, however unstable, with eu- genicists may also have prevented a more penetrating and potentially radical inquiry into the social origins of crime.

The relationship between eugenic jurisprudence and environmentalism in criminal justice was rooted in the emergence of new disciplines and in the specific political contexts of American cities and states. A more complete na- tional picture of this relationship awaits further local studies. The case of the Municipal Court of Chicago suggests that any study of criminal justice reform must sort through the contingent political circumstances and ideological pos- sibilities that converge when reformers mobilize state power to define and address the problem of public order. The demise of eugenic jurisprudence in the Municipal Court of Chicago, for example, came about not as a simple "tri-

eagerly accepted an invitation from Olson to serve on a committee to assess the need for more legislation for the insane and feebleminded in Illinois. "Your letter, relative to a Com- mittee for the study of psychopathic work in connection with the criminal, has been received," Schaar wrote. "I shall be happy to serve in any way on this group, because I am thoroughly committed to the need of intensive work along these lines." Schaar to Olson, 16 December 1919, JHOP, Box 5. Documents pertaining to the anniversary event are contained in the Emily Washburn Dean Papers, Chicago Historical Society, Folder 3. The writings of Mey- er Solomon's successor are collected in David B. Rotman, Addresses and Papers, 1934-1948 (Chicago: Psychiatric Institute of the Municipal Court of Chicago, 1948).

110

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

The Two Percent Solution

umph" of therapeutic discourse, but as the outcome of local political condi- tions and broader cultural change. Just as Olson's inspired technocratic lead- ership enabled eugenic jurisprudence to flourish in the Municipal Court, his political defeat assured that eugenic jurisprudence would not be revived there. In retrospect, the chief justice's loss of control over the laboratory may have the unsatisfying quality of a historical accident, but Hickson's replacement with a practitioner of the psychiatry of adjustment was anything but. The profes- sion of psychiatry, like the larger American culture in which it was becoming an increasingly powerful player, was gradually turning its back on hereditari- an ideas. At least for the time being.

This essay has argued that eugenic jurisprudence played a significant and mistakenly overlooked role in the seismic transformation of American crimi- nal justice during the Progressive Era. I have stressed the extraordinary diver- sity of early twentieth-century criminology and the surprising interdependence of eugenics and environmentalism, as adherents of each ideology acquired cultural authority and public power within the same state institutions. I have also suggested that both environmentalism and eugenics-indeed the whole project of socialized criminal justice-by working out complicated social prob- lems through human individuals, circumscribed offenders' procedural rights and subjected the everyday lives of urban working-class populations to new levels of governmental intervention. This is the shared legacy of environmen- talism and eugenics.

But the ideological differences between eugenic jurisprudence and environ- mentalism were not empty formalisms. They had real consequences for the people policed in socialized courts. Eugenic jurisprudence and its techniques of institutional commitment and sterilization posed a much greater threat to defendants' civil liberties and life chances than an environmentalist program like probation. Due process acquired a new shade of gray when judges heed- ed the eugenicist's motto: "keep the lifestream pure."

111

This content downloaded from ��150.135.174.98 on Mon, 01 Nov 2021 06:10:03 UTC��

All use subject to https://about.jstor.org/terms

Contents

image 1
image 2
image 3
image 4
image 5
image 6
image 7
image 8
image 9
image 10
image 11
image 12
image 13
image 14
image 15
image 16
image 17
image 18
image 19
image 20
image 21
image 22
image 23
image 24
image 25
image 26
image 27
image 28
image 29
image 30
image 31
image 32
image 33
image 34
image 35
image 36
image 37
image 38
image 39
image 40
image 41
image 42
image 43
image 44
image 45
image 46
image 47
image 48
image 49

Issue Table of Contents

Law and History Review, Vol. 16, No. 1, Spring, 1998

Front Matter [pp. i - 208]
In This Issue [pp. vii - viii]
Paul L. Murphy 1923-1997 [pp. ix - xi]
Frederic William Maitland and the Earliest English Law [pp. 1 - 25]
When Christianity Was Part of the Common Law [pp. 27 - 62]
The Two Percent Solution: Eugenic Jurisprudence and the Socialization of American Law, 1900-1930 [pp. 63 - 111]
Forum: On Enlightened Punishment

The Right to Be Punished: Autonomy and Its Demise in Modern Penal Thought [pp. 113 - 146]

Forum: Commentary

Identity, Difference, and Enlightenment Heritage(s): Comment on "The Right to Be Punished" [pp. 147 - 151]
The Denials of Justice [pp. 153 - 157]

Forum: Response

Historical Analysis of Law [pp. 159 - 162]

"Law and Neoclassical Economics": A Response to Commentaries [pp. 163 - 171]
Book Reviews

untitled [pp. 173 - 174]
untitled [pp. 174 - 175]
untitled [pp. 175 - 177]
untitled [pp. 177 - 180]
untitled [pp. 180 - 183]
untitled [pp. 183 - 185]
untitled [pp. 185 - 186]
untitled [pp. 186 - 188]
untitled [pp. 188 - 191]
untitled [pp. 191 - 193]
untitled [pp. 193 - 195]
untitled [pp. 195 - 197]
untitled [pp. 197 - 199]
untitled [pp. 199 - 201]
untitled [pp. 201 - 205]
untitled [pp. 205 - 207]

The H-Law Resource Page [pp. 209 - 210]
Back Matter