Professor Daniel Loehr, Associate Professor of Law at CUNY School of Law, has filed an amicus curiae brief before the United States Supreme Court in Andrew Burgess Gregg v. Colorado (No. 25-891), urging the Court to consider the historical foundations of habitual criminal sentencing laws as it weighs the constitutional stakes of the case.
The brief, filed in support of the petitioner, builds on Professor Loehr’s scholarship documenting how “habitual criminal” statutes emerged from the American eugenics movement in the early twentieth century. In the filing, Loehr and co-author the Colorado Office of Alternate Defense Counsel trace how such laws were designed not merely to enhance punishment for repeat offenses, but to give legal force to eugenic ideologies that classified certain individuals, disproportionately people of color and the poor, as inherently criminal and subjected them to incapacitation or forced sterilization during their reproductive years.
The case before the Court raises questions about the constitutional nature of habitual criminal sentencing proceedings, specifically whether double jeopardy protections apply. The brief argues that these proceedings cannot be understood as trivial exercises in tallying past convictions. Instead, they represent a profound legal determination with extreme consequences: whether a person will be subjected to a separate sentencing scheme historically premised on preventing reproduction.
Drawing on archival legislative records, medical journals, and early criminal law scholarship, the brief situates Colorado’s habitual criminal statute within a broader national and global pattern. By the mid-twentieth century, nearly every state had adopted similar laws as had countries abroad, including Nazi Germany. Though amended over time, many of these statutes remain in force today.
“The legal system continues to enforce statutes whose origins were explicitly tied to eugenics,” Loehr states. “Understanding that history is essential to evaluating the constitutional meaning of these proceedings.”
Professor Loehr’s filing extends arguments developed in his recent article, The Eugenic History of Habitual Offender Laws, published in the Howard Law Journal and his recent report published by The Sentencing Project, The Eugenic Origins of Three Strikes Laws: How “Habitual Offender” Sentencing Laws Were Used as a Means of Sterilization. Professor Loehr has also filed amicus briefs on this topic in the Colorado Supreme Court and the Supreme Court of California. He also continues to conduct trainings on the history of habitual offender laws to public defender organizations across the country.
At CUNY Law, his scholarship and teaching confront how historical forces have shaped the architecture of criminal punishment, consistent with the Law School’s model of training lawyers to analyze not only what the law says, but how and why it came to be.
In a recent 10-minute interview, Professor Loehr discusses the historical research behind the brief, the constitutional questions now before the Court, and why CUNY Law’s academic environment makes this kind of work possible.
The Supreme Court’s decision in Gregg v. Colorado is pending.