“The criminal is to go free”: The Legacy of Eugenic Thought in Contemporary Judicial Realism about American Criminal Justice

Jonathan Simon | Law | Boston University Law Review, 2020

This Essay examines one particularly influential vehicle through which eugenic ideas changed into a realism about crime control, traveling across time and beyond their original source material: Benjamin Cardozo. Judicial hero for the Legal Realists and their successors, star of the New York Court of Appeals, and Supreme Court appointee at the height of the Progressive/Eugenic Era, Cardozo has remained a fascination to casebook authors and biographers. In one of the most famous sentences in modern criminal procedure, Cardozo wrote, in summing up the reasons New York and other states had for rejecting the exclusionary rule as a remedy for police violations of constitutional privacy: “The criminal is to go free because the constable has blundered.” This short sentence, with its deft deployment of a nostalgic characterization of police and its slightly alarming image of the criminal set free to prey upon society, does as well as perhaps any sentence could have to capture the essence of a broad eugenic program for battling America’s alarming crime problem in the interwar years and turn it into a piece of judicially sanctioned realism. Indeed, this sentence has been emblematic of crime-control values ever since Cardozo put pen to paper. Intersecting in Cardozo’s arresting image is a eugenic program has three key axes: (1) focus on the dangerous minority, (2) consider law enforcement a weak link, and (3) punish the criminal, not the crime.