Eugenics: Formula for the Criminal Identity?

(This is a paper I wrote for one of my courses - History of Forensic Sciences, while I was studying at the University of Wisconsin-Madison)

The sole utterance of the word “eugenics” reminds one of the atrocities committed against Jewish people, minorities, and disabled people by the Nazis during World War II. However, many people are not aware that eugenics and eugenic inspired practices like involuntary sterilizations were carried out worldwide and such practices still exist today in many parts of the world like India and China. With the advent of the Genetics Era the concept of genes and the phenomenon of genes controlling your behaviour are gaining popularity. This makes one question whether the society is at the precipice of a re-emergence of eugenics and eugenic practices. This significant threat forces one to explore what might be the consequences of such a revival and which fields are most vulnerable to infiltration by eugenic philosophy. One such field is the criminal justice system. Historically, eugenics has played a highly influential role in the criminal justice system because of the presumption that undesirable traits like criminal deviancy are the consequence of undesirable genes. [1]Thus, there is an undeniable link between eugenics and the criminal justice system. Based on the historical context of eugenics, this essay argues that with increasing, unconstrained faith in the reliability of DNA evidence, the criminal justice system is at the cusp of a eugenics resurgence in the domains of crime probability and risk analysis, profile creation for the “criminal”, policing practices, and criminal charge and sentencing guidelines.

When it comes to the historical context of eugenics, we need to understand the origins of the philosophy of eugenics. Francis Galton, who is regarded as the “Father of Eugenics”, coined the term “eugenics” which means “good-birth”.[2] From his observations of the intellectual nature of certain British families and their offspring, he concluded that intellect and personality traits are heritable. He expanded this idea to show that characteristics like deviancy, mental illnesses, immoral behaviour, disabilities, etc. were also heritable. He believed that to create a healthy society, the gene-pool of the society needs to be maintained at a pristine quality. He was a proponent of “positive eugenics” which encouraged people with high intellect and high social class to marry and produce high quality offspring.[3] One such example of positive eugenics could be seen in Nazi Germany, when the Third Reich introduced the ‘Lebensborn’ programme where Aryan men and women who possessed a desirable level of intellect, social stature and the characteristics of a pure-bred Aryan were matched and sent to camps where they were encouraged to produce as many children as possible.[4] The Nazis believed that with such matches of high-quality males and females, the offspring obtained would be of high quality, which would raise the quality, health, and strength of the German population and make Germany a strong nation.

Galton’s ideas also led way to the school of “negative eugenics”, whose proponents believed that to maintain the health of the genetic pool of the society, the society must be freed of the undesirable traits. [5] [6]Since such undesirable traits like feeblemindedness were thought to be heritable, blocking the reproduction of people with such traits through involuntary sterilizations or confinement was used as a “solution”. The best example of negative eugenics in practice was in Germany when the Nazis enacted various laws to support their ideas of Racial Hygiene and authorized around 400,000 involuntary sterilizations of Jews, Romani (Gypsy), disabled people and criminals. The Laughlin Sterilization Treatise developed by Harry Laughlin in the US in 1914 made it possible for eugenic practitioners to continue with their practices without encroaching upon the due process rights of the victims in the legal sense. This law was used as a model by the Nazis to craft their eugenic policies and this fact was brought up during the Nuremberg Trials (1945). [7] This is indicative of the fact that the US has a strong history of negative eugenics. In the US, many “unfit” people, i.e. people with mental illnesses, epilepsy, disabilities, morally corrupt people (people who did something out of ordinary or that did not live according to the morals of the society) or people who were diagnosed with feeblemindedness, were segregated on the basis of sex and confined so as to prevent them from producing offspring who were believed would be at a high risk of inheriting the same undesirable traits from the parents.[8] [9] [10]In many of these locations where they were confined, these people were involuntarily sterilized and the reasoning given for such ghastly practices, as was seen in the case of the involuntary sterilization of Carrie Buck in the Buck v. Bell (1927) case, was that such practices were meant to reduce the burden of these people on the society, by curbing the spread of the undesirable traits that made the society weak. [11]Besides, one of the other rationales provided for the opinion in the Buck v. Bell was that if men were willing to go to wars and risk their lives for the nation, getting sterilized and being confined was the least the people possessing the undesirable traits could do for the society.[12] [13]After the end of World War II and the discovery of the horrific eugenic practices carried out by the Nazis against the minorities, there was an overall decline in eugenic ideologies as people realized that negative eugenics was highly inhumane and unethical, as it trampled on an individual’s human right to reproduce and on individual’s civil liberties.

This however did not mean that negative eugenic practices halted. In the US involuntary sterilizations continued to take place, with the last known eugenic sterilization which took place as recently as 1979.[14] Even other countries like India, Czechoslovakia, and China continued with such eugenic practices, under the guise of “population control”.[15] Recently, China has been facing a lot of heat for conducting involuntary sterilizations of the Uighur women to reduce the population of Uighurs in China (a minority Muslim group which has always been targeted and illtreated in China).[16] Additionally, with the increasing knowledge of DNA, whole genome sequencing, and prenatal screening, questions have been raised as to whether abortion of babies diagnosed to have a high risk for congenital disorders like Down Syndrome is a negative eugenics practice.[17] Similarly, selective implantation of “healthy” embryos and discarding of “unfit” embryos produced during in-vitro fertilization (IVF) also shows resemblance to eugenic ideas.[18] [19] These examples show that eugenic practices exist even today. Some of these practices are explicitly discriminatory and are clear examples of negative eugenics like the sterilization of the Uighurs. On the other hand, some of these practices like creation of designer babies, selective embryo implantation during IVF, and medical abortions of high-risk foetuses or foetuses with congenital disorders bare subtle resemblances to eugenic ideas. [20] [21]

Alongside the persistence of eugenic ideologies and practices, one needs to explore the increasing popularity of DNA technologies and DNA evidence in the courtroom. DNA has now become a “black-boxed” technique and an important tool in the toolkit of forensic scientists. It has been accepted that DNA evidence mostly satisfies the Daubert standards for courtroom evidence. Hence, it is now common for reliable and relevant DNA evidence to be admitted to the court and presented to the judge or jury. Most of the population has been convinced that the existence of DNA evidence is proof enough to convict someone of a crime they are being charged with. [22] Such an increased reliance on DNA evidence in the criminal justice system and criminal justice procedures is surely going to provide a clear path for eugenic ideas to infiltrate the justice system as eugenics is closely related to DNA and heritability of characteristics.

Historically, there have been several attempts made to create a profile of the “criminal”. This refers to various attempts made by forensic anthropologists to create a formula to find who is predisposed to commit crimes. This was done to identify people with high risk of becoming criminals and to take preventive measures by either placing them in a better environment or pre-emptively confining them to stop them from actually committing crimes. Phrenology was one such school of thought which attempted to predict who might become a criminal on the basis of indentations on the head. [23] Today, with the accumulation of data pertaining to areas that have high levels of crime, characteristics of criminals and their personal histories including levels of education, family life, etc. police departments are trying to create a model that can predict high risk criminal areas or communities. The intention behind such predictive policing is to stop crime from happening by taking pre-emptive measures like increased surveillance, intervention for at-risk youth, etc..[24] With the increasing database of DNA profiles obtained from various criminals and stored in the Combined DNA Index System (CODIS) and National DNA Index System (NDIS) under the purview of the FBI, it would not be far-fetched for one to assume that very soon, attempts would be made to analyse these DNA profiles and create a repository of genes or DNA sequences that are commonly found in criminals.[25] Thus, just like phrenologists used the data they collected to determine which head indentations predisposed someone to criminal tendencies, geneticists along with forensic scientists might attempt to create a “genetic profile of a criminal”.[26] This would be the next step or even the ultimate step in predictive policing as the police would now be able to pin-point exactly which person might become a criminal.

One might view such a form of predictive policing to be a boon for the society but would be mistaken as such practices would not only be based on the wrong premise that an individual is a result of his genes and his genes only, but also would lead to huge amount of discriminatory policing. As has been observed, currently there is a disproportionate number of Black prisoners in prisons and the creation of “genetic profile of a criminal” with such disproportionate representation might further racist policing practices.[27] Besides, people who are identified as being at a high risk of committing crimes through the use of the “genetic profile of a criminal” might be subjected to involuntary confinement, involuntary separation from families and communities, to “mitigate” the risk and to prevent them from committing crimes.[28] Such practices would be a major encroachment on the human and civil rights of such individuals. Even though there are now laws in place which make it illegal for an employer to discriminate against his employees or prospective employees based on genetic risk for certain diseases, employers might argue that they have the right to not hire people who matched the so-called “genetic profile of a criminal” to keep the office safe. Thus, such practices and actions against such people would highly resemble negative eugenic practices.

It would be unwise to assume that the criminal justice system would be the only party that would misuse this “genetic profile of a criminal”. The defence teams can make a claim on the basis of genetic predisposition just like in an insanity plea where in the defence team argues that the criminal was mentally incapacitated and hence cannot be held fully responsible for his crimes.[29] In cases involving insanity plea, mental illnesses or supposed mental illnesses of the defendant are brought up as evidence in trials to convince the jury to free the criminal or in an attempt to convince the judge to give a lighter sentence. The creation of the “genetic profile of a criminal” might result into the development of a “genetics plea” where the defence team might argue that since their client possesses the genes that predispose one to commit crimes, he was not in control of his actions when the crime was committed and hence, should not be held fully responsible for the crime and should be given a lesser punishment.[30][31] This argument has been made in the courts previously especially by using evidence that showed a connection between MAOA (Monoamine-oxidase A) gene possession and predisposition to commit violent acts. [32] This evidence was used in State v. Waldroup case, where Waldroup was accused of murdering a person and the attempted murder of his wife. The crime was of an extremely violent and heinous nature but when the jury was presented with the information that Waldroup possessed the MAOA gene also known as the “warrior gene” which predisposed him to violent behaviour and hence, he was not able to control his actions, he was given lesser punishment. [33]This shows that such defence can be used in a court and can benefit the criminal, by influencing the crime he is charged with and the sentence he receives for it. The assumption that a person’s actions are the sole product of his genes brings to question the concept of free will and opens the nature versus nurture argument. [34]Surely other factors affect the behaviour of a person and his/her genes cannot be blamed for criminal behaviour.[35] In this way, the “genetic profile of a criminal” can be misused in courts.

Thus, using historical context of eugenic philosophies and policies, this essay shows that the criminal justice system is currently at the precipice of another wave of eugenic ideologies and practices especially in the fields of crime probability and risk analysis, profile creation for the “criminal”, policing practices, and sentencing guidelines. The increasing popularity of DNA evidence as well as the increasing sophistication of DNA technologies are other factors that are strengthening the possibility of such a resurgence of Eugenics. It is imperative to learn from the past and realize that this will have extremely harmful consequences. Ergo, the legal society needs to tread with caution and take preventive actions. It is not feasible to stop the DNA technology from advancing and from invading multiple aspects of the human society like the criminal justice system, as DNA has now gained a stronghold and has immense applications in the field of medicine. Hence, better education regarding things like DNA and heritability of characteristics needs to be provided to people, especially legal teams, judges, and juries. Additionally, stricter standards need to be considered for the admissibility of DNA evidence in courtrooms. Conscious understanding of genetics, heritability and DNA evidence might prevent the resurgence of eugenics.

References: [1] Battaglini, G., & Millar, R. (1914). Eugenics and the Criminal Law (pg. 15) [2] Eugenics and Involuntary Sterilization: 1907–2015. (2022) (pg. 352) [3] Human Testing, the Eugenics Movement, and IRBs | Learn Science at Scitable. (2022) [4] Eugenics and Involuntary Sterilization: 1907–2015. (2022) (pg. 352) [5] Eugenics and Involuntary Sterilization: 1907–2015. (2022) (pg. 353) [6] Human Testing, the Eugenics Movement, and IRBs | Learn Science at Scitable. (2022) [7] Eugenics and Involuntary Sterilization: 1907–2015. (2022) (pg. 355) [8] Eugenics and Involuntary Sterilization: 1907–2015. (2022) (pg. 354) [9] Battaglini, G., & Millar, R. (1914). Eugenics and the Criminal Law (pg. 12-14) [10] Jenkins, P. Eugenics, Crime and Ideology: The Case of Progressive Pennsylvania (pg. 64, 73) [11] Turda, M. (2008). New Perspectives on Race and Eugenics. Special Issue: ‘Eugenics: Old and New’ (pgs. 1117-1118) [12] Willrich, M. (1998). The Two Percent Solution: Eugenic Jurisprudence and the Socialization of American Law, 1900-1930. (pg. 69) [13] Cohen, A. (2016). Imbeciles (pp. 1-14) [14] Cohen, A. (2016). Imbeciles (pp. 1-14) [15] Eugenics and Involuntary Sterilization: 1907–2015. (2022) (pg. 361-363) [16] APNews, China cuts Uighur births with IUDs, abortion, sterilization. (2021) [17] Leroi, A. (2006). The future of neo‐eugenics. [18] Eugenics and Involuntary Sterilization: 1907–2015. (2022) (pg. 365) [19] Leroi, A. (2006). The future of neo‐eugenics. [20] Vizcarrondo, F. (2014). Human Enhancement: The New Eugenics. [21] Epstein, C. (2003). Is modern genetics the new eugenics? (pg. 472-474) [22] Aiello, Taylor. “MAOA Genetics in the Courtroom: The Last Legacy of State v. Waldroup.” Royal Road, 2021 (pgs. 25-26) [23] Jenkins, P. Eugenics, Crime and Ideology: The Case of Progressive Pennsylvania (pg. 66) [24] Predictive Policing: The Future of Law Enforcement?. (2022) (pg. 18) [25] CODIS and NDIS Fact Sheet | Federal Bureau of Investigation. (2022) [26] Simon, J. (2020). 'The Criminal Is to Go Free': The Legacy of Eugenic Thought in Contemporary Judicial Realism about American Criminal Justice. (pg. 791) [27] Turda, M. (2008). New Perspectives on Race and Eugenics. Special Issue: ‘Eugenics: Old and New’ (pg. 1121) [28] Simon, J. (2020). 'The Criminal Is to Go Free': The Legacy of Eugenic Thought in Contemporary Judicial Realism about American Criminal Justice. (pg. 799) [29] Michigan Law Review, Born to Crime: The Genetic Causes of Criminal Behavior (pg. 1218) [30] Genes, environment and responsibility for violent behavior: “Whatever genes one has it is preferable that you are prevented from going around stabbing people”. (2022) (pg. 4) [31] Aiello, Taylor. “MAOA Genetics in the Courtroom: The Last Legacy of State v. Waldroup.” (pgs. 21, 22) [32] Sohrabi S. (2015). The criminal gene: the link between MAOA and aggression (REVIEW) [33] Aiello, Taylor. “MAOA Genetics in the Courtroom: The Last Legacy of State v. Waldroup.” (pgs. 27-28) [34] Genes, environment and responsibility for violent behavior: “Whatever genes one has it is preferable that you are prevented from going around stabbing people”. (2022) [35] Genetic Factors and Criminal Behavior. (2000). Federal Probation (pgs. 24, 26)