“The Criminal Class” in American Policy

In his exploration of America’s punitive turn at the end of the twentieth century, legal scholar Jonathan Simon examines the publications of Cesare Lombroso  (1825-1909), often called the “father” of positivist criminology , to create a policy template for the American criminal justice system. To clarify, a positivist criminologist applies methods characteristic of the natural sciences to explain criminality. Simon finds that American penal policy traditionally assumes that crime stems from a distinct class of people[1]. Such people, positivism suggests, inherently lean towards law-breaking and as such, require isolation and incapacitation. Simon considers that the increase in incarceration and halt of therapeutic rehabilitation between 1975 and 1985 reflect an anti-scientific approach to crime. This approach contrasts with the state’s prior view and its repression of crime through positivist-endorsed mechanisms, including eugenics, medicine, educational, and penal measures[2].

However, Simon contends that the ideas of crime control as science and the distinct, dangerous “criminal type” remain in the American criminal justice system. As such, though 1980s policy emphasized retribution and deterrence, it also simultaneously instituted positivist measures such as pretrial detention. Likewise, the incarcerated classes reflect those that positivism traditionally targets, “including the poor, recent immigrants, and minorities”[3]. In fact, when famed sociologist Charles A. Ellwood celebrated the English publication of Lombroso’s work in 1912, he noted that if Lombroso’s theory of crime “…is at all correct, it is evident that the criminal class is not essentially different in its genesis from the pauper class”[4] I should note here, though that Ellwood also argued that this parallelism was not explicit in Lombroso’s thought processes.

Simon argues that contemporary American crime policy represents a synthesis between the scientifically based findings and protective measures of Lombrosan positivism and the adjudicative control of state institutions. American crime control reflects the synthesis in its incorporation of extralegal danger assessments for selecting prosecution subjects as well as prosecutors’ flexibility to pursue extended isolation and repression for especially dangerous criminals[5].

 Simon concludes by discussing that though Lombroso remains largely forgotten by the general public, his “project” of linking state institutions and resources with scientific and cultural assumptions and his framing of crime as a mortal threat to the state remains embedded in American crime consciousness. Simon’s analysis reveals the social nature and links between both scientific and legal policy, constantly shifting between outlining origins and detailing why the American state provided such fertile ground for positivist approaches to criminality. Additionally, he illustrates the importance of recognizing “where change holds sway and where continuity”[6]. In identifying an intuitive but false assumption regarding policy change, Simon convincingly argues that Lombroso’s influence persists. In short, Simon’s historical research demonstrates what Zelizer might call the institutional and cultural persistence of Lombrosan positivism as well as the process evolution of the criminal justice system[7].

In conclusion, Simon’s analysis holds value for historians and criminologists alike in its model of systematically discussing and deconstructing the theoretical and cultural bases of a seemingly objective system. Likewise, it hold value for policymakers in its call to reassess the biases encoded in the criminal justice system and for its presence in a policy-targeted journal. However, if Simon were to argue his points more succinctly and in a more publicly available format, his call might resonate more forcefully.

RECOMMENDED READING

Bernard, Thomas J., Jeffrey B. Snipes, and Alexander L. Gerould. “Biological Factors and Criminal Behavior” in Vold’s Theoretical Criminology. New York: Oxford University Press, 2010.

Heidt, Jon, and Johannes P. Wheeldon. “Biological Positivist Theories” in Introducing criminological thinking: Maps, theories, and understanding. 38-58. Sage Publications, 2014.

Simon, Jonathan. “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.” Tex. L. Rev. 84 (2005): 2135-2172.

Wolfgang, Marvin E. “Pioneers in Criminology: Cesare Lombroso (1825-1909).” Journal of Criminal Law and Criminology 52, no. 4 (Winter 1961): 361-391.


[1] Jonathan Simon, “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,” Texas Law Review 84, no. 2135 (2006): 2138.

[2] Simon, “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,”, 2168.

[3] Ibid, 2169.

[4] Ellwood, Charles A. “Lombroso’s theory of crime.” J. Am. Inst. Crim. L. & Criminology 2 (1911): 723.

[5] Simon, “Positively Punitive: How The Inventory 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,”, 2170.

[6] Otis L. Graham, Jr. “The Uses and Misuses of History: Roles in Policymaking,” The Public Historian 5, no. 2 (1983): 12.

[7] Julian E. Zelizer, “Clio’s Lost Tribe: Public Policy History Since 1978,” Journal of Policy History 12, no. 3 (2000): 383-388.


This essay was adapted from a review I wrote for a graduate level history course.

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