Research on American criminal justice often concludes that the U.S. penal system was largely guided by the “rehabilitative ideal,” the philosophy that punishment should reform inmates and equip them to lead law-abiding lives, through the twentieth century preceding the rise of mass incarceration. This article complicates this narrative by evaluating the intellectual origins of the rehabilitative ideal and demonstrating that it was built on theoretical premises justifying punitive politics from its inception. The ideal has always relied on distinguishing curable offenders from incorrigible ones who cannot be reformed and warrant harsher punishment. This has guided American state development in punitive directions throughout the twentieth century. Progressive era indeterminate sentencing reforms were geared toward both containing and reforming offenders, the eugenics movement of the early twentieth century relied on the idea of criminal incorrigibility to advocate for compulsory sterilization statutes, and anxieties about incorrigibility justified punitive features of the draconian federal sentencing reforms of the 1970s and 1980s. This history indicates that a full revival of the rehabilitative ideal is unlikely to check contemporary punitive political impulses, especially given that two political and ideational currents currently driving American penal policy—neoliberalism and bio-criminology—comport with the punitive facets of rehabilitative penology.
“Class, Politics, and the Ideology of Crime Science.”
Often, judges and legislators claim that they think about rehabilitative goals when sentencing criminals and writing criminal laws. But rehabilitative discourse is generally absent from discussions about white-collar crime. Why is this the case? This paper addresses this question by exploring the biases of rehabilitative ideology. Rehabilitative philosophy is built on scientific arguments suggesting that street criminals are driven by biological pathologies to commit crime. Rehabilitation has thus been designed to rehabilitate prison and jail inmates by converting them into worker-citizens, but punish those who fail to “rehabilitate.” Part of the reason white-collar offenders are rarely viewed as requiring rehabilitation is that they do not fit the scientific construct of the criminal type that informs rehabilitative thought. But this also means that they cannot be labeled immune to rehabilitation and consequently exposed to increased punishment. In this way, rehabilitation has become a class control weapon of the state that promotes punitive interventions uniquely designed to target racial minorities and the urban poor who commit street crimes.
“No Bodies to Kick or Souls to Damn: Politics and the Origins of Corporate Criminal Liability.”
Corporate criminal liability, the legal principle that corporations can be criminally punished as entities, serves as the American state’s primary means of responding to corporate crime. Most historical analyses suggest that the Supreme Court produced the doctrine in the 1909 case New York Central and Hudson River Railroad v. US by building on previous common law precedents. While other common law nations use comparable versions of the principle, these explanations fail to address why it emerged so early in the US where it has become uniquely important. This paper examines the history of the 1887 Interstate Commerce Act (ICA) to demonstrate that the emergence of corporate criminal liability was contingent on political circumstances. The ICA initially criminally punished the officers and agents of railroads for criminal behavior, as legislators explicitly rejected the idea that corporations could be criminally punished. This choice motivated railroads to lobby Congress and the ICC to revise the law to target railroads rather than individual employees and directors, which Congress did in the 1903 Elkins Act. This illustrates how the doctrine’s emergence was not simply a constitutional inevitability or natural byproduct of common law, but a political choice driven by interested parties that set the stage for the Court’s ruling.