Nicole Rafter. Australian & New Zealand Journal of Criminology. Volume 41, Issue 2. August 2008.
During the 12 years of Hitler’s Third Reich (1933–1945), the Nazis used biological theories of crime to justify the killing of tens of thousands of people—millions, in fact, if we consider that the Nazis justified the extermination of not only law-breakers but also Jews and Gypsies, by attributing to them inherent criminality. The Germans developed a science of criminal biology that they believed could identify hereditary criminals and demonstrate that they needed to be incarcerated indefinitely for eugenic reasons — so they would be unable to reproduce. With the onset of World War II in 1939, the Nazis intensified their applications of criminal-biology, drawing on it to select allegedly mentally handicapped offenders, including the criminally insane, for ‘euthanasia’ or ‘mercy-killing’. Later still, after Führer Adolf Hitler decided to exterminate all those with ‘lives not worth living’, the Nazis murdered criminals and others whom they deemed to be hereditary ‘asocials’ in gas chambers or sent them to concentration camps for ‘extermination through labor’.
This aspect of the Nazi regime — criminology’s darkest hour — remains all but unknown to criminologists. Indeed, until recently, it was relatively unknown even to historians of the Third Reich. Although these historians had closely analysed the development of eugenics, genetics, medicine and other sciences that the Nazis used to destroy indisputably innocent victims, they had paid less attention to the science of criminal-biology, perhaps because its victims, having been accused or convicted of crimes, were considered in some sense suspect or even deserving of their fate (Wachsmann, 2001). In recent years, however, new research by historians such as Richard Wetzell (2000) and Nikolaus Wachsmann (2004) has brought the picture of Nazi criminology and criminal justice into focus. This picture reveals a previously unfamiliar dimension to the predations of the National Socialist state — and the murderous potential of biological theories of crime.
It is no longer possible to dismiss Nazi criminal-biology as a bad science concocted by mad scientists, a perversion that will not recur so long as we uphold standards for ‘good’ science. In recent years, understandings of Nazi science have undergone rapid evolution as historians abandoned the older view that a few fanatic leaders had forced passive but otherwise virtuous scientists to nazify their methods and findings. This older view was based on a shaky and perhaps untenable distinction between ‘bad’ and ‘good’ science; moreover, it was promulgated after World War II by Nazi collaborators who wanted to exculpate themselves (Müller-Hill, 1988; Proctor, 1988). Even more important to the reinterpretation is the growing realisation that the older picture distorts the active and enthusiastic collaboration of German scientists with the Nazi regime. The new wave of studies of Nazi science makes it impossible to continue drawing bright lines between good and bad scientists (for example, Proctor, 1988; Szöllösi-Janze, 2001b; Weiss, 2006; Wetzell, 2000; also see Proctor, 1991). The more that historians discover about the workings of Nazi science, the more crucial it becomes to understand why scientists collaborated — to grasp the nature of their relationship with the state that funded their work and their desire to harness science to the goal of race purification. The new interpretation of Nazi science holds that the enlistment of science in a vast and disastrous enterprise, such as occurred in Hitler’s German, could happen again. If we truly want to prevent such a recurrence, then we must acknowledge that all science is to some degree politicised because it develops in a social context. If ‘value-free science’ is an impossibility (see, especially, Proctor, 1991), then our task becomes the difficult one of figuring out how to guard against a development that was but an extreme and murderous extension of something — science — that many of us practice daily.
This article is an analytical review essay based solely on English-language sources. It is intended as a contribution, not to the study of Nazi science, but to the history of criminology, particularly the development of biological theories of crime. Everything reported here is known to historians and is based on their research, especially the work of Wachsmann (2004) and Wetzell (2000, 2006), pioneers in the study of Nazi criminology and criminal justice. However, this line of historical research is unfamiliar to most criminologists (Day & Vandiver, 2000; Yacoubian, 2000). Nazi biocriminology constituted an episode in the evolution of criminology, defined as the scientific study of crime and criminals. Conceived in the late 19th century by Cesare Lombroso (2006; orig. 1876) and his followers, criminology was still an immature field when the Nazis became interested in it. In countries such as England, France, and the United States, criminology was turning in sociological directions; elsewhere it developed along biological lines. In Nazi Germany it fed into a political program of mass extermination. German criminal-biology was not directly responsible for that program, but it did provide one justification for it.
While this article focuses on criminology and its effects on criminal justice during the Third Reich, it also looks, more briefly, at criminology in Benito Mussolini’s Fascist Italy (1922–1943), another state with a powerful biocriminological tradition that historians are now starting to document (see, especially, Gibson, 2002). The two states were linked by their mutual participation in the broader phenomenon of fascism — the belief-system that undergirded the governments of not only Nazi Germany and Fascist Italy but also other mid-20th-century nations from Brazil to Japan. Fascism as a political movement was distinguished by its hostility to various other movements — capitalism, feminism, liberalism, socialism, and traditionalist conservatism; and it was nationalist (‘ultranationalist,’ to use Kevin Passmore’s [2002] term) in spirit and policies. Although fascism differed from country to country, it often had strong mystical and ritualistic elements that coalesced with an ethos that was masculinist, militaristic, bellicose and totalitarian. (‘It is a crime not to be strong,’ Mussolini declared [Smith, 1993, p.100].) A defining characteristic of fascism was its tendency to place the needs of the state before those of the individual, diminishing or obliterating individual rights for the sake of furthering an ideology and preserving a dictatorship. A comparison of the German and Italian cases enables us to specify ways in which social context fostered the politicisation of biocriminology and to isolate factors that made the German experience much more lethal.
My key questions are: How did biological ideas shape explanations of crime in Hitler’s Germany? How did Nazi science define ‘criminals’? What events — ideological, legislative, administrative, military, scientific — fed into the development of Nazi biocriminology, and what actions did the Nazis take against crime and criminals? I begin by discussing the immediate background to Nazi biocriminology in the previous government of the Weimar Republic and then examine the development of criminal-biology during the Third Reich and its applications by Nazi police, courts, and prisons. In conclusion, I briefly describe the affiliation of Italian biocriminologists with the Fascist regime, identifying some of the restraints that kept 20th century Italian criminal anthropology from becoming as potent a force for evil as German criminal-biology.
The Background: Criminal-Biology in the Weimar Republic
The roots of Nazi biocriminology reach far back into German history, but they lay most immediately in the social unrest of the previous era, that of the Weimar Republic (1919–1933), the government that replaced the German monarchy at the end of World War I and remained in power until Hitler took over. The Weimar Republic was a liberal democracy but unstable, kept precarious by its difficulties in recovering from the war and by extremism on both the Left and the Right. It adopted progressive criminal justice policies, limiting police powers, granting defendants legal protections, and running its prisons as rehabilitative institutions (Wachsmann, 2004). But this liberalism infuriated conservatives, who, arguing that the government was soft on crime, demanded more law and order. The sense of moral breakdown in the Weimar Republic — a foreboding that affected many groups, not only conservatives — was intensified by urbanisation and industrialisation (Lees, 2006) and came to a head after the economic crash of 1929, with the Great Depression and its worldwide repercussions. Large numbers of vagrants, hungry and unemployed, now filled the streets of German cities, overwhelming welfare agencies and becoming symbols of the country’s inability to cope with its problems (Ayass, 1988). People began to long for a more authoritarian government that would restore order and, as the up-and-coming politician Adolf Hitler promised, ‘morally purify the body politic’ (Gellately & Stoltzfus, 2001, p. 3).
As the impression of governmental ineffectiveness grew, crime became a prominent theme. The preoccupation with law-breaking is manifest in the period’s most famous film, Fritz Lang’s M (1931; the initial stands for Murderer). M includes scenes of mob violence, a familiar event during the Weimar years. It also depicts a gang of professional thieves or Ringvereine who are at least as well-organised and adept at social control as the police. Furthermore, M tells a story of lustmord or sex killing, a phenomenon that erupted in Weimar Germany, mesmerising its avantgarde artists and unnerving the populace (Evans, 1997; Tatar, 1997). One of the most spectacular lustmord cases was that of Peter Kürten, the ‘Dusseldorf Vampire,’ whose real-life sex murders of children are echoed in M by the killings committed by the central character, a mentally ill pervert. (To play this part, Lang cast Peter Lorre, a sinister-looking Hungarian Jew and an obvious outsider.) The introduction of fingerprinting and other aspects of scientific policing (some of these, too, show up in M) made it easier to detect recidivists, increasing the impression that the number of incorrigible criminals was on the rise. Weimar Germany became a hothouse for the cultivation of a criminology that drew clear lines between ‘Us’ and ‘Them’, the law-abiding and the criminal, just as Fritz Lang drew them in M.
The strongest influence on German criminology in this period was that of a man who had died years earlier: the Italian criminal anthropologist Cesare Lombroso. Lombroso’s key writings, translated into German by the end of the 19th century, shaped the contours of the emerging science of crimina-biology, even though German criminologists did not swallow Italian criminal anthropology whole. Indeed, like their counterparts in the United States, England, and France, German criminologists such as Gustav Aschaffenburg heavily criticised Lombroso, even while incorporating some of his central ideas (Aschaffenburg, 1968 [orig. 1903]; Bondio, 2006). Like Lombroso, they concentrated on the study of, not crimes but criminals, and like him they found an explanation for crime in biological abnormality. ‘No serious person really doubts’, wrote the German criminologist Johannes Lange, ‘that we must first look for the causes of crime in the criminal, i.e. in biological material’ (Lange, 1930, pp. 173–174). With modifications, German theorists accepted Lombroso’s (2006; orig. 1876) idea of the Born Criminal, the biologically and mentally abnormal incorrigible who remains socially dangerous for life.
Leading criminologists also accepted Lombroso’s social defence prescription for crime control, arguing that the punishment should fit the criminal, not the crime, and that incorrigibles should be removed from society for life — not to punish, not to rehabilitate, but to keep them from contaminating others (e.g., Aschaffenburg, 1968). Although Lombroso himself died before eugenics theory became popular, his social defence philosophy and hereditarian views meshed smoothly with the eugenics ideas that became popular in Weimar Germany. His medicalised notion that society should rid itself of ‘Born Criminals’ (Lombroso advocated the death penalty for serious cases), and his naive assumption that whatever scientists reported must be true, were among the most influential aspects of his legacy. They dovetailed with what historian Mariacarla Gadebusch Bondio (2006, p. 205) describes as a factor contributing to Germans’ acceptance of Lombrosian ideas: ‘blind confidence in scientific explanations of deviance, and the belief in the need to sacrifice individuals for the benefit of society’.
Even before the Weimar period began, theorists such as Emil Kraepelin, Aschaffenburg, and Hans Kurella had already defined criminology as a medicopsychiatric speciality and established psychiatrists as authorities on social health and the regulation of deviance (Aschaffenburg, 1968; Kraepelin, 1904; Kurella, 1910; see also Evans, 1999). Thus it is not surprising to find that most criminologists of the Weimar era were physicians or psychiatrists (by definition, the latter had medical training) — people predisposed to interpret human behaviour in physical terms. To explain why criminology became a medical speciality in Germany at this time, historian Richard Wetzell (2006) points to two factors of particular importance. First, the doctrines of Lombroso (himself a psychiatrist) appealed powerfully to psychiatrists through their biological explanations and equation of innate criminality with the psychiatric phenomenon of moral insanity. Second, German psychiatry, like its counterparts in other countries, was seeking a way to expand its professional domain by moving beyond insane asylum walls and colonising new deviant groups, such as criminals. German psychiatrists concerned with the biological health of the nation as a whole were eager to ‘place the interests of society above the welfare of the individual patient’ (Wetzell, 2006, pp. 417–418) — especially when those ‘patients’ were undeserving criminals.
Ernst Kretchmer, a psychiatrist prominent in the Weimar period, contributed indirectly to the development of criminal-biology with research on the relationship between body shape and personality. Kretchmer’s Physique and Character (1925) reports the results of research on patients in his insane asylum. After dividing the patients into two main groups, manic depressives and schizophrenics, Kretchmer used anthropological tools — calipers and tape measures, photographs and drawings — in the hope of discovering physical differences between them. He concluded that manic depressives tend to be pyknic or fat in body type, while schizophrenics are either thin or athletic. Kretchmer also constructed family trees to study inheritance of body type through the generations. Then, investigating whether the main body types were associated with particular types of personalities, Kretchmer concluded that manic-depressives tend to be quiet and soft-hearted, schizoids dull and brutal. He himself rejected the possibility of a physical type like Lombroso’s born criminals, replete with telltale ‘ear-flaps’ (Kretchmer, 1925, p. 39), and he played no personal role in the development of German criminology. (In fact, he resigned his position as president of the German Society of Psychotherapy in protest when the Nazis took over.) However, Kretchmer’s research encouraged criminologists to reach Lombrosian conclusions about the influence of biology and heredity on character.
Johannes Lange, another medical man who influenced the development of German criminology in the Weimar period, focused more directly on genetic factors in human behaviour. The author of a famous twin study, Crime as Destiny (1930), Lange seemed to prove that criminality is an inherited condition by studying sibling pairs. His finding that there was a higher concordance for criminal behaviour (measured by imprisonment) among identical twins (77%) than fraternal twins (12%) seemed to prove that ‘as far as the causes of crime are concerned, innate tendencies play a preponderant part’ (Lange, 1930, p. 41), although Lange readily admitted that environment contributes as well.
To locate sets of twins in which at least one of the pair had been imprisoned, Lange had turned for help to the Bavarian Ministry of Justice, an institution with a program of biological research that, like Kretchmer’s body type investigations, furthered the biologisation of criminality in the Weimar years. In 1924, the Justice Ministry in the south German state of Bavaria established a Criminal-Biological Service to collect data — anthropometric, medical, moral, and psychiatric — on prisoners, their families, and their associates (Cantor, 1936; Liang, 2006). The goal was to identify ‘incorrigibles’ so that they could be sent to preventive detention. Based on the assumption that morality is rooted in biology, the Bavarian criminalbiological research seemed to prove that assumption, a proof that in turn reinforced hereditarian notions and the acceptance of eugenic solutions. Eventually including files on over 100,000 people, the program identified a motley group of incorrigibles including ordinary criminals, communists, homosexuals, psychopaths, recidivists and sex offenders (Liang, 2006) who constituted an apparently dysgenic nucleus of antisocial people.
The Weimar years, then, saw the development of a new science, criminalbiology, that could easily be used in the next period to further the eugenic goals of the Nazi state. Related to other sciences and scientific subspecialities — oldfashioned criminal anthropology; the new amalgam of genetics, eugenics, and anthropology; psychiatry; body typing; genealogical investigations; and twin studies — criminal-biology was distinguished above all by its scientism or unquestioning acceptance of (indeed, enthusiasm for) what scientists identified as true knowledge. Weimar criminology was not a monolith, as Wetzell (2006; also see Cantor, 1936) cautions, for it developed on a number of fronts and through research programs that sometimes produced contradictory results. But the general thrust was toward confirming criminality as a biological condition, identifying a core group of incurables (‘habituals’, ‘incorrigibles’, ‘psychopaths’), and demonstrating the heritability of criminality. Weimar criminology differed from the criminal-biology of the Third Reich in degree, not kind: It was less racist, and its eugenics themes were relatively muted. But, as Wachsmann explains (2001, p. 169):
By the time the Nazis came to power in January 1933, not only was there widespread agreement that certain “habitual” offenders had to be eliminated from society, but prison officials and criminologists had already taken the first steps in identifying who these offenders were.
Criminal-Biology in the Third Reich
Criminal-biology was one of several sciences — including anthropology, biology, eugenics, genetics, medicine, psychology and psychiatry — that during the 12 years of the Third Reich actively contributed to the Nazi’s goal of cleansing Germany of genetic inferiors, and it cannot be separated from the broader scientific effort of which it formed a part. At the outset of the Third Reich, Dr Max Planck, President of the Kaiser Wilhelm Society for the Advancement of the Sciences, expressed his and his colleagues’ enthusiasm for working closely with the new government, assuring Hitler that ‘German science is ready to make every possible effort to collaborate in the reconstruction of the new national state, which, in turn, has declared itself to be our protector and our patron’ (Muller-Hill, 1988, p. 25). The symbiotic relationship of science with the regime was reaffirmed a decade later, when Dr Eugen Fischer, a leader in Nazi eugenics research, exulted that ‘It is a rare and special good fortune for a theoretical science to flourish at a time when the prevailing ideology welcomes it, and its findings can immediately serve the policy of the state’ (Muller-Hill, 1988, p. 18). The life sciences thrived under the Nazis, criminal-biology among them.
The two scientific programs with which Nazi criminal-biology allied itself most closely were eugenics and racial hygiene. These two terms are often used as synonyms, and indeed eugenics and racial hygiene converged as Hitler unfolded his plans for mass extermination. Moreover, even in Hitler’s Germany scientists did not sharply distinguish between the two projects. However, if we today are to understand the aims of criminal-biological research, it is important to distinguish between them. The eugenics project aimed at improving the quality of the ‘race’ (meaning, most broadly, the ‘human race’) by encouraging superior people to reproduce (‘positive eugenics’) and discouraging ‘inferiors’ from reproducing (‘negative eugenics’) through forced exile, marriage prohibitions, incarceration or extermination. At its most general, eugenics proposed to prevent the reproduction of everyone with hereditary defects — not members of a single racial or ethnic group but all the ‘defectives’ within every group — for the good of the whole. Into the 1930s, Jews were among those who, in Germany and elsewhere, supported the eugenics movement, which, criminologically, aimed at identifying hereditary criminals of all races and ethnicities and preventing them from reproducing. All of the leading criminologists in the Third Reich supported the eugenic goals of the Nazi regime, albeit with varying degrees of enthusiasm.
Racial hygiene, on the other hand, was concerned with identifying ethnic or racial groups of people, such as Jews and Gypsies, and restoring Germany to Aryan (roughly, ‘Nordic’ or Germanic) purity. In terms of criminology, racial hygiene intersected with eugenics when specific race-ethnic groups were identified as genetically criminalistic. The complexities of this intersection become clear when we consider that Gustav Aschaffenburg, a leader in the development of criminal-biology, did not realise as late as 1935 that his science could become anti-Semitic — even though he himself had already been ousted from his university post because he was a Jew (Wetzell, 2000, pp. 186–187). Aschaffenburg simply did not grasp that for the Nazis, criminal-biology and anti-Semitism were ‘complementary parts of a eugenicracial policy’ (Wetzell, 2000, p. 187). A few years later, this connection became obvious. It is unclear to what extent those who developed criminal-biology supported racial hygiene as well as eugenics. However, after the Nazis’ purge (described below) of Jews and political opponents from the criminological ranks, most if not all of the remaining criminal-biologists endorsed both goals, thus merging the aims of the two scientific projects.
Race purification had long been at the top of Hitler’s agenda. In the first volume of Mein Kampf, written in the 1920s, he had declared that every cultural achievement is ‘almost exclusively the product of Aryan creative power’. The Aryan is ‘the Prometheus of mankind’, the bold creator of the humanities and the arts, whereas the Jew is a parasite, an inveterate liar, and the cause, through interbreeding or ‘miscegenation’, of physical and racial deterioration in Aryan stock (Hitler, 1939, pp. 243, 240). Germany needs laws, Hitler continued, to prevent the breeding of inferior races (‘the inferior always outbreed the superior’) and to forbid the mating of Jews with ‘the superior race’ (Hitler, 1939, pp. 239–240). The old German empire, ‘by neglecting the problem of preserving the racial foundations of our national life’, made ‘mongrels’ of its people (Hitler, 1939, p. 275).
Hitler’s false ideas about human heredity and his anti-Semitism amplified prejudices that were already widespread in German society, including associations of Jews with uncontrolled sexuality and predatory criminality. (These associations can be seen, for example, in Lang’s movie M.) Similarly, Hitler’s regime fastened on widespread prejudices against ‘Gypsies’ (as it termed the Sinti and Roma peoples, Milton, 2001) to criminalise this group. In 1935, Dr Robert Ritter, Chief of the Research Institute for Eugenics and Population Biology within the Reich Ministry of Health, announced that the tens of thousands of Gypsies he had been studying through the Bavarian criminal-biological files were ‘the products of matings with the German criminal asocial subproletariat’ and a ‘people of entirely primitive ethnological origins, whose mental backwardness makes them incapable of real social adaptation’ (Muller-Hill, 1988, p. 57). Fusing these ideas about racial hygiene with eugenics, German criminal-biologists produced ‘an Aryan criminology’ (Cantor, 1936, p. 418) that contributed to both projects.
What was the substance of this Aryan criminology? It was based on two fundamental assumptions: that biology determines criminal behaviour, with environment having little significant effect; and that the biological factors are genetic and inevitably passed to the next generation. The overriding purpose of Nazi criminalbiology was to confirm these assumptions through research and to identify the men and women who, because they were hereditary criminals, should be prevented from reproducing. Criminal-biologists also studied differential birthrates, showing that criminals were outbreeding good Germans and estimating the impact that sterilisation might have in reducing various types of crime. As time went on, the research program expanded to prove that vagrants, homosexuals, communists, and other ‘asocials’ were likewise hereditary deviants. The research program of Nazi criminalbiology was more hereditarian than that of the Weimar period and more explicitly racist in its targeting of Jews and Gypsies.
Criminal-biologists conducted their research through biological examinations of the type pioneered in Bavaria, compiling files on the genetic, intellectual, medical, psychological and social condition of their subjects. When the Nazis came to power, they nationalised the Bavarian program, opening criminal-biological centres in 73 prisons and centralising the reporting system in the Reich Ministry of Justice (Wetzell, 2000, pp. 183–184). This ambitious research program aimed at producing four practical applications. First, through the criminal-biological examinations Nazi criminologists hoped to be able to genetically classify every prisoner in Germany. Second, they planned to make the results of the examinations useful at sentencing by creating a kind of genetic presentence report upon which judges could base their decisions. Third, the examination results would be useful in identifying those criminals who should be sterilised. And fourth, the head of the program, Robert Ritter, hoped to compile a universal archive of genetic information that would enable him to predict who would become criminals so that they could be immobilised before they started committing crimes (Liang, 2006; Wetzell, 2000, 2006).
Ritter was a dominant figure in the development of Nazi criminal-biology by virtue of his positions within the Nazi hierarchy. In 1940 he became head of a department that merged the racial-hygiene research being done at the Institute for Eugenics and Population Biology, under the Ministry of Health, with the CriminalBiological Institute collecting genetic data on prisoners for the Ministry of Justice. The following year he became head of a second Criminal-Biological Institute that reported to the Schutz-Staffel or SS and compiled genetic databases on wayward youths, vagabonds and asocial families, using genealogical methods similar to those on which, in the United States, Richard Dugdale and Henry Goddard had based their famous research on the ‘Jukes’ and Kallikak families. However, other criminologists were also active in Nazi Germany, including Franz Exner, Hans Gruhle, Siegfried Koller, Heinrich Wilhelm Kranz and Friedrich Stumpfl; and, as Wetzell (2006, pp. 412–413) has shown, many of them did not share Ritter’s extreme racism and genetic determinism. ‘Nazi-era criminology was characterized by a continuing tension between hereditarian biases and an ongoing process of increasing methodological sophistication. … [A] certain amount of “normal science” continued under the Nazi regime’ (Wetzell, 2006, p. 415). Even so, criminal-biology gradually lost the eclectic character it had had in the Weimar years, growing ever more uniform. Another factor that sapped whatever vigour was left in German criminology was the diminishment of resources and narrowing of goals that set in when World War II began. Thereafter, criminal-biology had little to do other than to justify exterminating criminals and other asocials.
When Hitler became Chancellor of Germany in January, 1933, the Nazis moved swiftly to implement their racial hygiene program. In April 1933 they enacted a Law for Restoration of the Professional Civil Service, a ruling that barred Jews and communists from employment in universities and government positions. This order got rid of potential opponents and simultaneously forced those who wanted to keep their jobs into collaboration with the Nazi state. Among the criminologists who were forced to leave Germany in the 1930s were Max Grünhut and Hermann Mannheim; along with the Polish refugee Leon Radzinowicz, they went on to found British criminology (Hood, 2004). Karl Birnbaum, a key figure in the development of German criminal-biology, emigrated directly to the United States, followed, eventually, by Gustav Aschaffenburg (Wetzell, 2000). Hans von Hentig, not a Jew but a close associate of Aschaffenburg and an opponent of the Nazis (although himself hereditarian), also emigrated to the United States, where he taught at various universities and, with his classic The Criminal and His Victims (1948), founded the field of victimisation studies. Other U.S. emigrants included Georg Rusche and Otto Kirchheimer, whose Punishment and Penal Structure (1939) laid the foundation for nearly all later theories of penality. Thus, through its own racism, Germany sent into exile some of its best criminologists, some of whom might have tempered its criminological biologism with environmentalist perspectives.
Criminal Justice Under the Third Reich
How did criminal-biology affect criminal justice in the Third Reich? To answer that question, we must first look at ways in which the Nazis changed the criminal law and institutions for the administration of justice, for those changes created the circumstances in which they applied criminological theory.
Immediately after coming to power, the Nazis set about turning Germany into a dictatorship. In February 1933, they used a fire in the Reichstag building where the German Parliament met as an excuse for suspending civil liberties. The next month’s Enabling Act authorised Hitler to write his own legislation, even if it deviated from the constitution. The new regime centralised the governments of the individual German states; these states, which had enjoyed considerable autonomy in the Weimar Republic, now lost control as responsibility for criminal justice and other matters shifted to the Reich’s central administration. In another step, the government in April 1933 created the Geheime Statspolizei or Gestapo, a secret state police agency that was independent of judicial review. Thus ‘justice’ became a synonym for the needs of the state, and criminal justice institutions became tools for executing Nazi policies. The Nazis carried Lombroso’s ‘social defense’ position on criminal justice to an extreme that would have horrified the Italian liberal.
With the opposition silenced by the Law for Restoration for the Professional Civil Service, in July 1933 the Nazis enacted the Law for Prevention of Hereditarily Diseased Offspring, or Sterilization Law, authorising compulsory sterilisation of people said to be afflicted with congenital epilepsy, feeble-mindedness, mental diseases such as schizophrenia, alcoholism, and other supposedly heritable afflictions. This law, inspired by US eugenics research and modelled on similar US legislation (Proctor, 1988), took aim more directly at the mentally retarded or ‘feeble-minded’ than at criminals. However, it affected the latter group as well. ‘Feeblemindedness’ was vaguely defined in any case, and because it was diagnosed through social as well as intellectual criteria, the term was easily extended to cover those who committed criminal or quasi-deviant acts. (On both sides of the Atlantic, for example, women who became pregnant out of wedlock were almost by definition feeble-minded [Rafter, 1997].) ‘Hereditary alcoholism’ was another category that could easily be stretched to include criminals. Hitler himself had wanted to include criminals under the Sterilization Act (Evans, 2005, p. 511), but officials in the Ministry of Justice, in an incident illustrating their commitment to science, resisted the Führer on the grounds that they were not yet sure of the criteria for sorting hereditary from nonhereditary offenders (Evans, 2005; Wachsmann, 2004). However, the Sterilization Law was amended in 1935 to provide for ‘voluntary’ castration of those with a ‘degenerate sex drive’ (Wachsmann, 2004, pp. 146–147), and in any case those deemed incorrigible criminals were immobilised reproductively by a habitual offender act passed 6 months later. This Habitual Offender Law of November 1933 enabled the courts to resentence incorrigibles to indefinite terms. Such terms were, in effect, both life and death sentences, for in the great majority of cases the offenders either died of maltreatment in prison or were eventually shipped to concentration camps to be worked to death.
Historians used to picture the police, courts and prisons of Germany’s traditional criminal justice system as relatively independent of the Third Reich’s police forces and concentration camps. In recent years, however, the older view of a ‘normal’ criminal justice system, parallel to Nazi institutions and often resistant to but helplessly overwhelmed by them, has been rejected. That view in fact was promulgated after World War II by criminal justice officials anxious to cover up their cooperation with the Nazis (Black, 2006; Wachsmann, 2004). Many of these officials had collaborated enthusiastically, and the regular system had actually served to reassure the populace that traditional standards were in place. ‘The continued operation of the legal bureaucracy,’ writes Wachsmann (2004, p. 373; also see Black, 2006), ‘helped to mask the terrorist nature of the Nazi regime.’
Policing in the Third Reich followed a trajectory toward centralisation, expansion, takeover of court functions and obliteration of rights. All policing was organised under the SS, which had expanded from an original small group of bodyguards to become, under Heinrich Himmler, a complex organisation with hundreds of thousands of employees. The SS eventually included military units, the Gestapo, a medical corps, the regular police and concentration camp administrators. Tellingly, even one of Robert Ritter’s criminal–biological research units was lodged within the SS bureaucracy — hardly a blueprint for scientific objectivity, but then, objectivity was not what they were after. The regular police or Kripo, frustrated during the Weimar period by civil rights limitations on their investigative powers, welcomed the opportunity to contribute to ‘preventative policing’ and to improve racial hygiene (Black, 2006).
Even though the SS took over functions traditionally lodged with the courts, the traditional judicial system nonetheless played a vital role in the effort to cleanse Germany of social misfits. Criminal laws multiplied; for example, it became illegal even to leaflet or make a joke about Hitler. Older laws were rewritten to increase the vagueness with which offences were defined, making it possible to charge almost anyone with anything. Jurists were advised: ‘Ask yourself with every decision you take how would the Führer decide in my place?’ (Wachsmann, 2004, p. 388). Many responded vigorously: ‘Justice is whatever is useful for the German people,’ declared Judge Hans Frank, head of the Nazi Party’s legal office. ‘The National Socialist state does not negotiate with criminals, it knocks them to the ground’ (Wachsmann, 2004, p. 74). While some court officials tried to maintain judicial impartiality (Evans, 2005), many gave in to Nazi pressures, in effect throwing traditional concepts of justice to the winds. Regular courts charged more harshly, allowed fewer appeals and punished more severely, frequently meting out sentences of death. When prosecutors lacked evidence to convict, they might simply hand defendants over to the SS (Evans, 2005). To speed up justice and control outcomes in the case of political opponents, the Nazis established special courts, including a People’s Court that accepted faked charges and determined sentences in advance. Many defendants were simply sent to ‘protective custody’ or ‘security confinement’ to await trial indefinitely; in effect, this meant that they were sent to prison before trial, and because imprisonment often led to slow death, this meant that arrest itself could be a death sentence. Other defendants were eliminated more rapidly. The members of the famous White Rose group of Munich students who leafleted against Hitler, for example, were ‘tried’ in a show of justice and immediately guillotined.5 ‘The court and prison systems became key instruments of Nazi repression’, Wachsmann explains (2004, p. 71): ‘This would have been impossible without the cooperation of the German legal officials’.
The jails and prisons of the traditional justice system kept operating under the Third Reich, constituting a carceral network that at times actually held more people than the parallel system of concentration camps (Wachsmann, 2004). The prisons were kept full by the Habitual Offender Law, which authorised judges to give indefinite ‘security’ sentences to those who, in the court’s opinion, had offended due to an underlying ‘criminal disposition’. The same law enabled prison officials to recommend for indefinite sentencing inmates whose terms were about to expire, but who had somehow demonstrated incorrigibility. The majority of those sentenced under the eugenic Habitual Offender Law were petty thieves, prostitutes, vagrants and other minor offenders. In prison they were fed little, worked brutally and beaten frequently.
Nearly all of the Nazi killing programs included criminals, starting with the ‘euthanasia’ operation code-named T4 and initiated in October, 1939. The T4 operation aimed at getting rid of the mentally incapacitated, a population that included the criminally insane. Wetzell relates how court officials, when they tried to check up on people they had committed to institutions for the criminally insane, sometimes found that their wards had vanished — disappearances that led some doctors to avoid testifying in diminished responsibility cases for fear that the defendants would be executed before they came to trial (Wetzell, 2000, p. 286). In April 1941, the T4 operation expanded to target people held in concentration camps, including those unable to work, Jews, ‘asocial psychopaths’, and inmates with criminal records — an expansion that coincided with Germany’s need to free up resources to fight the war and care for the wounded. Due to public unrest over his ‘euthanasia’ program, Hitler officially terminated it while continuing its operation in secret; now the program gathered ‘asocials’ from workhouses and homes for wayward youth into its murderous embrace. On Hitler’s initiative, after 1942 everyone in security confinement was slated for elimination — ostensibly in order to counterbalance the gene pool’s loss of good stock through war (Wachsmann, 2004, pp. 284–285). Some in security confinement were worked to death in regular prisons; others were shot, hung or guillotined; yet others were sent to concentration camps for ‘annihilation through labor’ (Wachsmann, 2004, pp. 296–298). Thus toward the regime’s end, the two parallel system, one consisting of traditional penal institutions and the other of concentration camps, began to converge.
Another, more specifically criminological convergence occurred as the various groups of deviants identified as hereditary misfits came to form a vast pool of almost indistinguishable ‘asocials’. These included political opponents of the regime, who were sometimes portrayed in Lombrosian fashion, with deformed heads and twisted features (Gellately & Stoltzfus, 2001, p. 5). It further included Jews and Gypsies, groups that research had identified as inherently criminalistic. Sex offenders, prostitutes, homosexuals, Jehovah’s Witnesses, juvenile delinquents, ‘psychopaths’, vagrants, the ‘work-shy’, beggars, and alcoholics — these groups, too, were criminologically demonstrated to be hereditary degenerates. The looseness of the identifying criteria encouraged a steady swelling of the ‘asocials’ category. ‘A good man’, wrote the ethologist Konrad Lorenz, ‘can very easily feel with his deepest instincts whether another is a scoundrel or not … . (W)e should rely on the unanalysed and deeply rooted reactions of our best individuals’ (Müller-Hill, 1988, p. 56). Lorenz, a Nazi party member and future Nobel Prize winner in science, likened asocials to malignant tumours who needed to be eliminated for the health of ‘the supraindividual organism’ (Müller-Hill, 1988, p. 14). The Third Reich, then, was far from hostile to science; rather, at every step of the way it called on science for verification and legitimation — just as science called on it, and for the same reasons (Szöllösi-Janze, 2001a, p. 17). Once the new legal and administrative structures were in place, criminal-biology contributed to the achievement the Nazi goals of eugenics and racial hygiene.
Illustrating this system’s workings, Wachsmann (2004, p. 137) describes the case of a woman committed to prison in June 1936. Magdalena S., 33 years old, had a record of 16 minor convictions for theft and prostitution. She behaved well in prison until guards reprimanded her for not working with sufficient energy, at which point she quit entirely, refusing even to clean her cell and telling officials, ‘I cannot bear this life any longer, I cannot say yes to everything and I cannot obey any more.’ The officials sent Magdalena S. to strict detention for 5 months, feeding her little except bread and water. Deteriorating mentally, she became aggressive toward the guards and her own person. Eventually assigned to an ‘annihilation through labor’ program, Magdalena S. was sent in 1943 to a concentration camp, where she died along with 20,000 other prison inmates.
It is impossible to come up with a total number for the criminals who, like Magdalena S., died as a result of the Nazi belief that by exterminating criminals, they could exterminate crime. Of course, various sorts of figures do exist; we know, for instance, that between 1939 and 1945, German courts meted out 16,000 death sentences and that after August 1942, at least 14,000 habitual offenders were killed in concentration camps (Wachsmann, 2004). But the figures are often elusive, overlapping or incommensurable. Do we include in the total number those Poles imported to Germany to work in war industries who were executed by the police for minor infractions? (Gellately, 2001). Homosexuals who died in concentration camps? Gypsies at the Birkenau camp who died as a result of exposure, disease, malnutrition and medical experimentation (13,613), by gassing (6432), or by being shot in escape attempts (32)? (Milton, 2001). What about Jews who were classified as habitual criminals and prostitutes identified as Jews? But although it is futile to try to compile a total figure, that very futility teaches a crucial lesson: In Nazi thought, criminals were not a clearly defined category but rather part of a larger group of degenerates that included Jews, Gypsies, the handicapped, homosexuals, the poor and other ‘asocials’. Race hygiene excluded them all from the Nazi utopia, and for the same fundamental reason of hereditary biological inferiority. Thus Friedlander (1995, p. xii) argues that the term ‘genocide’ must be expanded from its original meaning — the mass murder of a particular ethnic or national group — to include ‘the mass murder of human beings because they belonged to a biologically defined group’. On this argument, criminals too were victims of Nazi genocide. Nazism was an ideology of eugenic purification, a ‘vision’, as Claudia Koonz (2003, p. 274) puts it, ‘of an exclusive community of “us” without “them”’.
Biocriminology in Fascist Italy: A Comparison
In some respects, the circumstances that led up to the establishment of fascist dictatorships in Italy and Germany were similar. Like the Weimar Republic, Italy in the early 20th century was a liberal state, reformist in thrust but unstable, beset by fundamental economic and political problems against which the government made little progress. Radical political movements on the Left, fed by extremes of poverty in rural areas and industrialising cities, were countered by anti-liberal conservatism on the Right. Italy sided with the Allies in World War I, but mainly because it had secretly been promised new territories as a reward; when those rewards failed to materialise on a scale sufficient to satisfy Italy’s imperialist hunger, the country reacted with humiliation and frustration, somewhat as Germany reacted to the settlements of the same war. Mussolini founded his Fascist party in 1919 on assurances that he would stabilise the government, eliminate corruption and restore the nation to a grandeur it had not known since the days of Imperial Rome. He rose to power in part through the violent tactics of his Black Shirts, paramilitary gangs that intimidated the opposition much as Hitler’s copycat gangs of Brown Shirts were to do in early 1930s.
These parallels cannot be pushed very far, however. Mussolini established himself as dictator almost a decade before Hitler took over in Germany and in a country long dominated by the Catholic Church, an institution that could effectively oppose the secular government. Moreover, at the time Mussolini rose to power, Italy was not experiencing a hysteria over crime analogous to that of Weimar Germany, although its criminal justice officials were preoccupied on an ongoing basis by ‘brigandage’ in the southern half of the country. However, the nation was concerned with problems of governability. (‘Brigandage,’ for example, was sometimes a code word for political resistance by independent Southerners to national centralisation in Rome [Lombroso, 2006; also see Gibson, 1998; Pick, 1989]). Riding that wave of concern, in 1922 Mussolini marched into Rome in a grand symbolic gesture, recalling glory days of Italy’s past. By 1926 he had established his dictatorship.
Criminologically, too, Italian developments paralleled those of Germany, though again in a rough and imprecise way. Most significantly, criminology in both countries was deeply stamped by Lombroso’s criminal anthropology, his commitment to study crime scientifically and his assumption that any procedures calling themselves science would reveal immutable truths. That Lombroso was a psychiatrist, and that he had begun with the premise that criminals must be sick or physically abnormal, meant that in Italy as later in Germany, crime would be interpreted as an individual fault rooted in biological deviation. In addition, Lombroso’s ‘scientific’ racism meant that Italy’s early 20th century versions of criminal anthropology, like later German criminal-biology, would be permeated with ideas about racial differences in corrigibility. Lombroso put criminal anthropology on the map in Italy, and there it stayed for decades, perpetuated (with modifications) by second and third generation followers such as Enrico Ferri, Raffaele Garofalo, Alfredo Niceforo, Salvatore Ottlenghi, and Scopio Sighele (Gibson, 1998, 2002, 2006). Several of these criminal anthropologists joined Mussolini’s party, thus yoking criminal anthropology to Fascism.
But even more significant were the differences in the ways Lombrosianism played itself out in Italy and Germany. Apart from his theory of the born criminal as a throwback to a more primitive evolutionary stage, Lombroso was an environmentalist, recognising a host of social influences on criminal behaviour and maintaining that, in many cases, biology had little or nothing to do with crime. Because his Italian followers took these distinctions seriously, Italian criminology was better able to incorporate sociological analyses, and they, in turn, buffered it against biological extremism. (In the Weimar years, German sociologists took little interest in criminology, according to Wetzell [2000, pp. 107–108], thus leaving the field vulnerable to its takeover by biological determinists.) Most significant in setting directions for the criminological future in Italy was the fact that Lombroso, although he was unquestionably biologistic, racist and crudely deterministic, was also liberal (in fact, late in life he became a socialist) and humanitarian, often sympathetic to criminals and admiring of their subcultures — in sharp contrast to his German followers. These personal characteristics of the towering figure in Italian criminology, along with the fact that he was Jewish, served as a brake, restraining Italians from the Germans’ headlong descent into racial hygiene.
Eugenics themes coursed through post-Lombrosian Italian criminal anthropology as they did through German criminal-biology, growing stronger as the 20th century progressed and culminating, in 1927, in Mussolini’s public endorsement of eugenics policies. Mussolini’s hopes for improving the Italian ‘race’ were built into the Rocco Code of penal reforms enacted in 1930 in the form of enhanced sentences for those who exhibited a ‘tendency to commit crime’; in the inclusion of a category of ‘crimes against the integrity and health of the race’ (it included syphilis); and in criminalisation of alcoholism to prevent hereditary diseases and race degeneration (Gibson, 2002). Thus criminal anthropology and fascism came together to produce this mildly eugenical penal code. But in a country in which the major religious institution opposed even birth control, the government took no steps toward sterilisation or ‘euthanasia’, and the emphasis fell on positive rather than negative eugenics measures.
This emphasis is obvious, for example, in a 1914 article on ‘Eugenics and the Criminal Law’ by law professor Giulio Q. Battaglini of the University of Rome. Speaking enthusiastically about the eugenic potential of the criminal law, Battaglini nonetheless criticises the sterilisation laws recently passed by US states as scientifically unsound and politically intolerable. Instead, he recommends indeterminate sentencing — not to immobilise offenders reproductively, but to improve their moral fibre by offering incentives for ‘redemption through personal effort’ (Battaglini, 1914, p. 14). More generally, Battaglini (1914, p. 15) touts the positive eugenic effects of ‘economic betterment, moral education, and the like’ — a program so mild as to be barely recognisable as eugenic in intention.
The racial themes of Fascist biocriminology played out, initially, in the criminalisation of Africans. Lombroso’s facile incorporation of social Darwinist racial hierarchies led him to observe ‘how closely’ criminals’ skulls, with their numerous cranial anomalies, ‘correspond to [the] … normal skulls of the colored and inferior races’ (Lombroso, 2006, p. 48). This sort of association helped undergird Mussolini’s imperialist war of 1935–36 against the Ethiopians, which Fascists justified as a takeover of an inferior people. Racial laws, mass killings, death marches and internment camps — these measures to subjugate the Ethiopians anticipated later Nazi actions against Jews and Gypsies (Alexrod, 2002) and were supported by most Italian anthropologists, including criminal anthropologists (Gibson, 2002).
The racial themes of Fascist biocriminology also converged in the criminalisation of southern Italians. To criminal anthropologists, the crime problems of southern Italy — the Mafia, the Camorra, and brigandage — proved that Sicilians, Sardinians and other inhabitants of the lower third of the country were racially inferior to the law-abiding citizens of the North. Their darker skins seemed to link them definitively to criminalistic ‘races’ such as Bedouins, Gypsies, and Africans. In his book on homicide, Lombroso’s disciple Enrico Ferri used shaded maps to indicate rates for various types of crime; ominously, the maps on parricide, poisoning, assassination and infanticide were shaded most darkly in their southern regions (Ferri’s maps are reproduced in Lombroso, 2006, p. 116). Whether we interpret this criminalisation of southern Italians as an effort to blame the fallout from northern capitalism on a ‘subaltern group’ (the interpretation put forth by political theorist Antonio Gramsci [1992]) or as a step in the forging of the new nation’s identity (Dickie, 1999), it was indisputably part and parcel of criminal anthropology under Fascism.
The racial equations of Italian criminology shifted in 1938, when Mussolini issued his Racist Scientists’ Manifesto, proclaiming that Italians, like Germans, belonged to the Aryan race. The manifesto was followed by a series of Racial Laws that forbade intermarriage of Arabs, Ethiopians and Jews with members of ‘the Italian race’ and excluded Jews from public education and state employment. For a moment, Gibson writes (2002, p. 119), concerns about southern Italians disappeared. ‘Jews now replaced southerners as the “inferior” and “degenerate” race that threatened to weaken Italy’. Italy’s Jews went underground or were rounded up and sent north to death camps.
But Mussolini, who had earlier helped Jews escape from the Nazis, eventually lost interest in these persecutions (Bosworth, 2002). Fascist criminology, inoculated against anti-Semitism by Lombroso’s own Jewishness and by the relatively low levels of anti-Semitism in Italy, did not become a vehicle for race purification, despite its strong racist themes. Mussolini’s Racial Laws were in fact a sign of the weakening of the Fascist state. Whereas earlier, Hitler had emulated Mussolini, now the Duce, his power ebbing, was trying to emulate the Führer.
Fascist criminologists dreamed of a legal transformation that would bring all aspects of the criminal justice system into line with criminal-anthropological principles. Such dreams were dashed — the hoped-for transformation never came. But criminal anthropology did affect criminal justice practices in nearly all parts of the system. Lombroso’s emphasis on crime prevention intensified repressive tendencies already rooted in Italy’s authoritarian police agencies (Dunnage, 1997; Gibson, 2002). To determine suspects’ degree of dangerousness, Fascist police studied criminal anthropology and learned to compile dossiers analogous to (although less hereditarian than) those of the Bavarian criminal-biologists. They also intensified social control of alcoholics, prostitutes and drug users, groups on whom criminal anthropology cast suspicions of degeneracy and who, collectively, formed a mass of downand-outers analogous to the Nazis’ ‘asocials’. The Fascist hierarchy welcomed such increases in social control, less out of concern to prevent race degeneration than to strengthen their spy networks (Dunnage, 1997). But policing under Fascism never became as terroristic as the SS, nor did it attempt to cast political dissent as a biological defect (Dunnage, 2003).
In Italy, biological theories evidently had their main impact on the handling of juvenile delinquents, a group Lombroso had identified as highly criminalistic (Gibson, 2002). After 1926, youths showing signs of physical or psychological abnormality could be sent to ‘Observation Centres’ for examination by specialists in criminal anthropology, and under the Fascists’ Rocco Code of 1930, potentially dangerous youths could be held on three-year indeterminate sentences. As for imprisonment, the Italian practice of confino, or internal exile of adults in penal colonies or small southern towns, increased under the Fascists; it too was encouraged by criminal anthropologists’ concern with crime prevention and the identification of dangerous persons. But the most repressive and brutal aspects of Fascist criminal justice operated independently of criminal anthropology, on orders from Mussolini and his close associates. The Duce might appoint judges, fix trials and arrange murders, but he did so without appealing to criminologists for scientific justification. Biocriminology was far more loosely coupled to Fascism than to Nazism.
How are we to explain this difference between the two fascist dictatorships, in both of which biocriminology served political ends? One factor lay in differences in Lombroso’s impact. In Germany, criminal anthropology nourished Nazi biocriminology and was in turn amplified by it and carried to its own worst possible conclusions; but in Italy, criminal anthropology’s influence was weaker, more indirect and ambiguous. While it allied itself with Fascism, criminal anthropology also formed a bulwark against Fascism, providing a sociological orientation that German interpretations of crime sorely lacked, emphasising positive rather than negative eugenics measures, and contributing a relatively liberal and less rabidly racist sense of direction. A second factor lay in the Catholic Church, which opposed eugenic measures, and a third in Mussolini’s relatively weak control of criminal justice agencies. Then too, Fascist biocriminologists, despite their dreams of transforming criminal justice, achieved nothing like the transformation of Nazi Germany.
Another explanation for the differences between the impact of biocriminology in Italy and Germany lay with the relative weakness of anti-Semitism in Italy, where Jews were often integrated into mainstream society. Primo Levi, the Italian Jew who survived imprisonment in the Nazi death camp at Auschwitz, remarked in an interview (Levi, 2001, p. 24) that:
As a boy and as a young man, being Jewish was not all that important for me. My family was not religious. Jews in Italy speak and spoke only Italian. There was very little difference between me and my friends. … This condition ended abruptly with the racial laws promulgated by Mussolini in 1938, which were identical to Hitler’s Nuremberg ones. But Italians often disregard laws. This can be a virtue if the laws are bad. … It was forbidden to have a Christian maid but everybody had one — when the doorbell rang you told her to go upstairs.
Fascist anti-Semitism, Levi continues (2001, p. 24), in important ways made
the situation … difficult and serious: Jews in jobs or positions dependent upon the government or fascist party were expelled,’ and of course many, like himself, were sent to Germany for extermination. But fascism in Italy was not like in Germany, an elite matter of soil and blood. It was accepted cynically. … My professor of chemistry, to keep teaching, was obliged to wear a black shirt, but he didn’t wear a real one, it was only a triangle in front, when he turned to the left or right you could see the triangle. (Levi, 2001, p. 30 [punctuation as in original])
As a result, biocriminology did not become a deadly weapon again Jews in Italy as in Germany. Ultimately, there may no way to explain what happened in Nazi Germany. ‘We cannot understand it’, Levi writes in his book The Truce, ‘but we can and must understand from where it springs’. One of those wellheads was a criminology that, in its biologism, determinism, and calls for social defence became the tool of a fascist state. As Levi concludes, ‘we must be on our guard. If understanding is impossible, knowing is imperative, because what happened could happen again’ (Levi, 1987, p. 396).