Daniel Loehr has a new report for the Sentencing Project about “habitual offender” laws which increase punishments in response to prior convictions: Think of “three strikes and you’re out” laws. He concludes that while these laws “are widely understood to have emerged in the late 1900s as part of the ‘tough-on-crime’ movement . . . the historical record is clear that they proliferated much earlier as part of the eugenics movement.” This is an interesting historical datum that, along with other evidence, shows just how deeply eugenic thinking shaped American (and European) policies and institutions.

He loses me, though, in his next sentences:

This is critically important, because it demonstrates that the design of “habitual offender” laws was premised on beliefs that are now widely rejected — first that criminality is heritable, and second that it is appropriate to attempt to control the reproduction of a population in order to eradicate them.

Although the eugenics movement has declined, its trace can be seen in the habitual offender laws that exist across the country. If we condemn eugenics, we ought to condemn one of the crowning achievements of the eugenics movement: “habitual criminal” laws and their associated long sentences.

Assuming Loehr has the history right, I don’t see why our evaluation of current public policies has to be tied to it. Just as courts will sometimes look to see if laws had a conceivably legitimate purpose even if legislators did not articulate it when deciding whether they should stand, we can decide that habitual-offender laws serve a useful non-eugenic purpose. We may, for example, conclude that habitual offenders pose more risk of recidivism than first-timers or that they deserve greater punishments, without committing ourselves to any view about the desirability of their genes in the population.

Nobody on the Left is ever convinced that minimum-wage and union-rate laws should go because they were partly motivated by a desire to suppress labor-market competition from nonwhites — and on that narrow point, I think progressives are correct. The arguments that ought to sway us concern the effects and justice of the laws as they operate today, not their history. Which is not to deny that the history is interesting.