Last updated 09/07/24: Online ordering is currently unavailable due to technical issues. We apologise for any delays responding to customers while we resolve this. For further updates please visit our website: https://www.cambridge.org/news-and-insights/technical-incident
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 02 April 2019
Twenty U.S. states permit the indefinite detention of civilly committed sex offenders after the end of their prison sentences if their dangerousness is due to a “mental abnormality.” This article explores the origins of one such law by examining its predecessor, the Minnesota Psychopathic Personality Act of 1939. Passed in the wake of a panic over sex crimes and upheld by the Supreme Court in 1940, Minnesota’s psychopath statute extended a 1917 eugenics law providing for the compulsory civil commitment and institutionalization of “defectives” to persons alleged to have a psychopathic personality. Analyzing the 1917 and 1939 laws together shows how one state’s psychopath statute had less to do with psychiatric authority than with the legal and administrative framework established by Progressive-era eugenics. From the 1910s until today, dubious claims about the ability of science to identify potential criminals legitimized politically popular, but constitutionally questionable, forms of administrative and social control.
Special Note: In this article, I use words that readers may find offensive, such as moron, feebleminded, defective, and psychopath, without quotation marks. I have retained the historical terminology used by experts and public officials because it illustrates the scientific and cultural assumptions behind involuntary commitment policies.
1. Karsjens v. Jesson, 109 F. Supp. 3d 1139 (D. Minn. 2015) at 4, 3. News articles and documents pertaining to the case can be found at https://www.leg.state.mn.us/lrl/guides/guides?issue=msop and https://mitchellhamline.edu/sex-offense-litigation-policy/2017/07/20/karsjens-v-piper/.
2. Quoted in Eric Janus, Failure to Protect: America’s Sexual Predator Laws and the Rise of the Preventive State (Ithaca, 2006), 22.
3. Laws of Minnesota 1917, chap. 344; Laws of Minnesota 1939, chap. 369; Philip Jenkins, Moral Panic: Changing Concepts of the Child Molester in Modern America (New Haven, 1998), 81–82.
4. Estelle B. Freedman, “‘Uncontrolled Desires’: The Response to the Sexual Psychopath, 1920–1960,” Journal of American History 74 (June 1987): 85.
5. See, for example, George Chauncey Jr., “The Postwar Sex Crime Panic,” in True Stories From the American Past, ed. William Graebner (New York, 1995), 160–78; Deborah W. Denno, “Life Before the Modern Sex Offender Statutes,” Northwestern University Law Review 92 (1997): 1317–1414; Simon A. Cole, “From the Sexual Psychopath Statute to Megan’s Law: Psychiatric Knowledge in the Diagnosis, Treatment, and Adjudication of Sex Criminals in New Jersey, 1949–99,” Journal of the History of Medicine and Allied Sciences 55 (July 2000): 292–314; Stephen Robertson, Crimes Against Children: Sexual Violence and Legal Culture in New York City, 1880–1960 (Chapel Hill, 2005); Elise Chenier, Strangers in Our Midst: Sexual Deviancy in Post-war Ontario (Toronto, 2008); George, Marie-Emilie, “The Harmless Psychopath: Legal Debates Promoting the Decriminalization of Sodomy in the United States,” Journal of the History of Sexuality 24 (May 2015): 225–61.CrossRefGoogle Scholar
6. See especially Eskridge, William N. Jr., Gaylaw: Challenging the Apartheid of the Closet (Cambridge, Mass., 1999),Google Scholar and Lancaster, Roger N., Sex Panic and the Punitive State (Berkeley, 2011).CrossRefGoogle Scholar
7. Simon, Jonathan, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (New York, 2007), 46–49;Google Scholar Claire Bond Potter, War on Crime: Bandits, G-Men, and the Politics of Mass Culture (New Brunswick, 1998). See also Jonathan Simon, “Megan’s Law: Crime and Democracy in Late Modern America,” Law and Social Inquiry 25 (2000): 1111–50.
8. Nicole Hahn Rafter, Creating Born Criminals (Urbana, 1997), 7. The scholarship on eugenics is vast. The classic text is Kevles, Daniel J., In the Name of Eugenics: Genetics and the Uses of Heredity (New York, 1985).Google Scholar A useful recent survey is Philippa Levine, Eugenics: A Very Short Introduction (Oxford, 2016).
9. Fernald, Walter, “The Imbecile with Criminal Instincts,” Journal of Psycho-Asthenics 14 (1909–10): 33.Google Scholar See James W. Trent Jr., Inventing the Feeble Mind: A History of Intellectual Disability in the United States (New York, 2017).
10. Mark Haller, Eugenics: Hereditarian Attitudes in American Thought (New Brunswick, 1984 [1963]), 129; Harry H. Laughlin, Eugenical Sterilization in the United States (Chicago: Psychopathic Laboratory of the Municipal Court of Chicago, 1922), 117–19.
11. Skinner v. Oklahoma, 316 U.S. 535 (1942); Paul A. Lombardo, Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell (Baltimore, 2008), 229–33.
12. Sex Offenders Received at Minnesota State Penal Institutions, 1 May 1935 to 1 December 1936, typescript, 3 March 1939; Roscoe B. Moore, St. Anthony Park Safety Board, to Minnesota State Legislature, 31 January 1939, both in George Bryan Vold Papers, University Archives, University of Minnesota, Twin Cities.
13. Michael J. Willrich, “The Two Percent Solution: Eugenic Jurisprudence and the Socialization of American Law, 1900–1930,” Law and History Review 16 (Spring 1998): 66–67; Willrich, “The Case for Courts: Law and Political Development in the Progressive Era,” in The Democratic Experiment: New Directions in American Political History, ed. Meg Jacobs, William J. Novak, and Julian E. Zelizer (Princeton, 2009), 198–99.
14. Molly Ladd-Taylor, Fixing the Poor: Eugenic Sterilization and Child Welfare in the Twentieth Century (Baltimore, 2018), 53–55.
15. Laws of Minnesota 1917, chap. 344.
16. Ladd-Taylor, Fixing the Poor, chap. 3. On indigence and insanity commitment, see Mildred Thomson, “A Review of the Laws of Minnesota Relating to the Feebleminded” (1935), https://mn.gov/mnddc/past/pdf/30s/35/35-RLM-MNT.pdf, and the biennial reports of the Rochester State Hospital and the Fergus Falls State Hospital, housed in the Minnesota Historical Society, St. Paul (hereafter MHS).
17. Minnesota Child Welfare Commission, Report of the Minnesota Child Welfare Commission (St. Paul, 1917), 12.
18. Faribault State School and Hospital, Biennial Report for the Year Ending July 31, 1916, 142, 144, Faribault State School and Hospital Records, MHS (hereafter FSSH).
19. Laws of Minnesota 1917, chap. 344, sec. 2 and 3.
20. FSSH, Biennial Report for the Year Ending June 30, 1922, 5–6. Hanna was quoting Massachusetts superintendent Walter Fernald.
21. G. C. Hanna to Board of Control, 11 May 1926; Hanna to Board of Control, 20 March 1927, Superintendent Correspondence, FSSH.
22. FSSH, Biennial Report for the Year Ending June 30, 1928, 13; Ladd-Taylor, Fixing the Poor, 229.
23. See Margot Canaday, The Straight State: Sexuality and Citizenship in Twentieth-Century America (Princeton, 2009).
24. Edward J. Engberg to Board of Control, 1 December 1938, Superintendent Correspondence, FSSH.
25. Ibid.
26. “Girl, 18, Attacked and Slain,” Minneapolis Star, 20 March 1937; “They Lost a Daughter,” Minneapolis Star, 24 March 1937.
27. See Elizabeth Faue, Writing the Wrongs: Eva Valesh and the Rise of Labor Journalism (Ithaca, 2002).
28. “Blood Stains Found on Coat, Face Bruised,” Minneapolis Tribune, 22 March 1937, 1–2.
29. Samuel Hynes, The Growing Seasons: An American Boyhood Before the War (New York, 2003), 163–64.
30. Ibid., 167.
31. “Doctor Approves Giving Kruse Clues,” Minneapolis Tribune, 31 March 1937; “Pine City Up in Arms as Murdered Girl Is Buried,” Minneapolis Star, 23 March 1937. See also “Suspect Jailed in Girl’s Murder,” Minneapolis Tribune, 22 March 1937; “Unsolved,” Minneapolis Star, 22 March 1937.
32. See Jenkins, Moral Panic, 6–7; Chauncey, “Postwar Sex Crime Panic,” 175.
33. Sharon Park, “Gangster Era in St. Paul, 1900–1936,” MNopedia, Minnesota Historical Society, http://www.mnopedia.org/gangster-era-st-paul-1900-1936; Potter, War on Crime, 179.
34. “Curb on Sex Crime Studied,” Minneapolis Tribune, 26 March 1937; John E. Haynes, Dubious Alliance: The Making of Minnesota’s DFL Party (Minneapolis, 1984), 24–25.
35. “New Laws Needed [editorial],” Minneapolis Star, 22 March 1937; “Lawmakers Must Act [editorial],” Minneapolis Star, 25 March 1937.
36. “Capture of Kruse Slayer Demanded at Women’s Rally,” Minneapolis Tribune, 2 April 1937.
37. Donald C. Bennyhoff, Memorandum from Executive Steering Committee to Subcommittee, 28 September 1937, Vold Papers.
38. Sheldon Glueck, “Sex Crimes and the Law,” Exhibit C, in Donald C. Bennyhoff to Committee of 25, 19 February 1938, Vold Papers. The committee decided against legislation modeled on the 1921 Briggs Law, a Massachusetts statute that authorized mandatory psychiatric examinations for habitual offenders and indefinite detention for sex offenders diagnosed as defective, because it applied only to convicted criminals. “Insanity and the Criminal Law,” Exhibit D, in Donald C. Bennyhoff to Committee of 25, 19 February 1938, Vold Papers.
39. Glueck, “Sex Crimes and the Law,” 4.
40. Ibid., 1, 3, 4. The 1935 revisions to the Minnesota Probate Code extended compulsory commitment to epileptics for the first time. Laws of Minnesota 1935, chap. 72, article 18, sec. 174.
41. John E. Haynes, “Reformers, Radicals, and Conservatives,” in Minnesota in a Century of Change: The State and Its People Since 1900 (St. Paul, 1989), 378–81.
42. Joseph H. Ball, “Stassen Names Group to Study Sex Criminals,” St. Paul Pioneer Press-Dispatch, 12 February 1939; Memo Notes, First Meeting, Governor’s Committee on the Problem of the Criminal Insance (sic) and the Sex Criminal, typescript, 2 March 1939 (approved 21 April 1939), Vold Papers. Vold recalled in 1949 that psychiatrists numerically dominated the governor’s committee, but did not play a major role in the passage of the psychopath law, which he attributed to “the drive by some attorneys for more power under which to prosecute.” John F. Galliher and Cheryl Tyree, “Edwin Sutherland’s Research on the Origins of Sexual Psychopath Laws: An Early Case Study of the Medicalization of Deviance,” Social Problems 33 (1985): 107.
43. Mrs. E. E. Morath and Mrs. R. N. Cunningham, “Resolution to Be Presented to the Stassen Legislature”; Gordon Kamman to Mrs. R. N. Cunningham, 2 February 1939, Vold Papers.
44. George B. Vold to Harold Stassen, 23 March 1939, Vold Papers.
45. “Report of the Governor’s Committee on the Care of Insane Criminals and Sex Crimes,” typescript, 1939, Vold Papers.
46. Report of the Governor’s Committee; Vold to Stassen, 23 March 1939, Vold Papers.
47. Laws of Minnesota 1939, chap. 369, sec. 1 and 2.
48. Laws of Minnesota 1939, chap. 369, sec. 1. The draft bill also stipulated that “political or religious belief or activity, racial origin, or behavior occurring in connection with a labor dispute or a strike shall not in any case be considered a basis for a finding of psychopathic personality,” but this proviso was removed. See “A Bill for an Act Relating to Persons Having a Psychopathic Personality,” enclosed in Chester S. Wilson to George B. Vold and Dr. J. C. McKinley, 5 April 1939, Vold papers.
49. “Report on Census of the Feeble-Minded,” typescript, n.d. Department of Public Welfare Library, MHS. On the removal of the definition of a feebleminded person from the 1935 probate code, see Robert J. Levy, “Protecting the Mentally Retarded: An Empirical Survey and Evaluation of the Establishment of Guardianship in Minnesota,” Minnesota Law Review 49 (1965): 826–27.
50. Fernald quoted in Rafter, Creating Born Criminals, 190.
51. “Court Upholds New Sex Law,” Minneapolis Tribune, 1 July 1939; State of Minnesota ex rel. Pearson v. Probate Court of Ramsey County, 309 U.S. 270 (1940).
52. Relator’s Brief, State of Minnesota ex. Rel. Charles Edwin Pearson vs. Probate Court of Ramsey County, 1939, Minnesota Supreme Court Case #32163, MHS.
53. Respondent’s Brief, Minnesota Supreme Court Case #32163.
54. State ex. rel Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 287 N.W. 297 (1939).
55. State of Minnesota ex rel. Pearson v. Probate Court of Ramsey County (1940).
56. James E. Hughes, “The Minnesota ‘Sexual Irresponsibles’ Law,” Mental Hygiene 25 (1941): 81, 83. Newspapers described the law as “the subject of a great deal of controversy.” See “Psychopathic Personality Law Upheld,” Minneapolis Star, 30 June 1939.
57. Minnesota Legislature Interim Commission on Public Welfare Laws, Report of the Minnesota Legislative Interim Commission on Public Welfare Laws, Sex Psychopath Laws (St. Paul, 1959) 4, 7–8.
58. Dittrich v. Brown County, 9 N.W.2d 510 (Minn. 1943). See C. Peter Erlinder, “Minnesota’s Gulag: Involuntary Treatment for the ‘Politically Ill,’” William Mitchell Law Review 19 (1993): 108, 127.
59. Sutherland, Edwin, “The Sexual Psychopath Laws,” Journal of Criminal Law and Criminology 40 (1950): 553.Google Scholar
60. Report of the Minnesota Legislative Commission on Sex Psychopath Laws, 4; William Hausman, “Report on Sex Offenders: A Sociological, Psychiatric, and Psychological Study,” 1 November 1972, A3, MHS. See also Frank T. Lindman and Donald M. McIntyre, eds., Mentally Disabled and the Law: The Report on the Rights of the Mentally Ill (Chicago, 1961), chap. 10.
61. Group for the Advancement of Psychiatry, Psychiatry and Sex Psychopath Legislation: The 30s to the 80s, vol. 9, no. 98 (1977), 840, 853, 858, 940–41.
62. Janus, Failure to Protect, 30–32.
63. Laws of Minnesota 1994, 1st Special Session, chap. 1, sec. 3; Janus, Failure to Protect, 36.
64. Kansas v. Hendricks 521 U.S. 346 (1997).
65. Janus, Failure to Protect, 38–40.
66. Jenkins, Moral Panic, 6.
67. Janus, Failure to Protect, 33.
