Positively Punitive: How the Inventor of Scientific Criminology Who Died at the Beginning of the Twentieth Century Continues to Haunt American Crime Control at the Beginning of the Twenty-First

I. Introduction Seeking to explain America's dramatic punitive turn in the last quarter of the twentieth century, social theorists have frequently noted the concurrent rise of retributive and expressive themes in the logic of legislation and in the operation of the courts and police.1 The post-World War II period of expansive social policy, including the embrace of rehabilitation as the main objective of criminal law, did indeed see imprisonment rates at or near the average for the twentieth century, and in the 1960s and 1970s a steady decline led to the century's low in 1973.2 In the late 1970s, as rehabilitation came under mortal attack from both the left and the right, imprisonment rates began a relentless rise that has only begun to show signs of exhaustion in recent years and that has produced an imprisonment rate more than four times the rate in 1970.3 There are empirical reasons for doubting that penological change alone had much to do with the shift toward high incarceration rates;4 this Article offers a somewhat different historical interpretation linking penological ideas and carceral outcomes. Rhetoric consistent with retribution and other expressive themes in penality, combined with the dramatic repudiation of the rhetoric of rehabilitation by many of those who had long supported it,5 has covered over the enduring role of positivist criminology as a source domain for American penal law throughout the twentieth century and into the beginning of the twenty-first.6 Positivist criminology, broadly conceived, is the project of subjecting criminal behavior to scientific study and bringing the findings of this science to bear in the practice of criminal justice.7 In Italy, where positivism originally arose, proponents viewed themselves as in opposition to the dominance of legal officials and legal reasoning over the crime control activities of the state.8 Many jurists shared this perception and vigorously fought off the effort of the "criminal anthropologists," as these early criminologists described themselves, to claim a role in the state's power to punish.9 The broad penal code revision by Italy in 1898 specifically rejected the view of the positivist school.10 In the United States, however, lawyers were among those who most eagerly embraced positivism, and both criminologists and lawyers have assumed that rule of law is compatible with science-informed criminal policy.11 As the author of a glowing account of Lombroso's ideas published in a journal favored by the Legal Realists concluded, "where the man of science has led the way the man of law must follow."12 The first great wave of enthusiasm for positivist ideas in the Progressive Era was primarily focused on the incapacitation of dangerous criminal types, mostly through imprisonment, with the aim of preventing crime and eugenically limiting the spread of criminal traits in the population.13 In the post-World War II era, positivism reached its peak, now with a softer focus on individualized diagnoses, with therapy-widespread adoption of treatment and rehabilitation as the main purpose of penal custody-and with the emergence of the ALI's Model Penal Code (MPC) as the most influential law reform approach.14 In the 1970s, American crime control policies seemed to turn sharply away from positivism, rejecting the rehabilitative idea in favor of the economic logic of deterrence,15 the moral logic of retribution, and a populism that combined a shallow version of these earlier logics with an expressive focus on identifying a shared enemy.16 All of these seemed to repudiate positivism with its emphasis on individualized diagnosis, scientific expertise, and its mid-twentieth-century concern with treatment.17 The major landmarks of late twentieth-century penal law, including the Federal Sentencing Guidelines,18 the Anti-Drug Abuse Act of 1986,19 and California's "Three Strikes" law,20 seem roughly consistent with all three of these and certainly have contributed, along with many similar laws, to higher incarceration rates. …