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Title: Crime: Its Cause and Treatment
Author: Clarence Darrow
Release Date: April 14, 2004 [EBook #12027]
Language: English
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CRIME
ITS CAUSE AND TREATMENT
BY
CLARENCE DARROW
1922
PREFACE
This book comes from the reflections and experience of more than forty
years spent in court. Aside from the practice of my profession, the
topics I have treated are such as have always held my interest and
inspired a taste for books that discuss the human machine with its
manifestations and the causes of its varied activity. I have endeavored
to present the latest scientific thought and investigation bearing upon
the question of human conduct. I do not pretend to be an original
investigator, nor an authority on biology, psychology or philosophy. I
have simply been a student giving the subject such attention as I could
during a fairly busy life. No doubt some of the scientific conclusions
stated are still debatable and may finally be rejected. The scientific
mind holds opinions tentatively and is always ready to reexamine, modify
or discard as new evidence comes to light.
Naturally in a book of this sort there are many references to the human
mind and its activities. In most books, whether scientific or not, the
mind has generally been more closely associated with the brain than any
other portion of the body. As a rule I have assumed that this view of
mind and brain is correct. Often I have referred to it as a matter of
course. I am aware that the latest investigations seem to establish the
mind more as a function of the nervous system and the vital organs than
of the brain. Whether the brain is like a telephone exchange and is only
concerned with automatically receiving and sending out messages to the
different parts of the body, or whether it registers impressions and
compares them and is the seat of consciousness and thought, is not
important in this discussion. Whatever mind may be, or through whatever
part of the human system it may function, can make no difference in the
conclusions I have reached.
The physical origin of such abnormalities of the mind as are called
"criminal" is a comparatively new idea. The whole subject has long been
dealt with from the standpoint of metaphysics. Man has slowly banished
chance from the material world and left behavior alone outside the realm
of cause and effect. It has not been long since insanity was treated as
a moral defect. It is now universally accepted as a functional defect of
the human structure in its relation to environment.
My main effort is to show that the laws that control human behavior are
as fixed and certain as those that control the physical world. In fact,
that the manifestations of the mind and the actions of men are a part of
the physical world.
I am fully aware that this book will be regarded as a plea or an
apology for the criminal. To hold him morally blameless could be nothing
else. Still if man's actions are governed by natural law, the sooner it
is recognized and understood, the sooner will sane treatment be adopted
in dealing with crime. The sooner too will sensible and humane remedies
be found for the treatment and cure of this most perplexing and painful
manifestation of human behavior. I have tried conscientiously to
understand the manifold actions of men and if I have to some degree
succeeded, then to that extent I have explained and excused. I am
convinced that if we were all-wise and all-understanding, we could not
condemn.
I have not thought it best to encumber the book with references and
foot-notes, for the reason that statistics and opinions on this subject
are conflicting and imperfect, and the results after all must rest on a
broad scientific understanding of life and the laws that control human
action. Although the conclusions arrived at are in variance with popular
opinions and long-settled practice, I am convinced that they are old
truths and are in keeping with the best thought of the time.
I am aware that scientifically the words "crime" and "criminal" should
not be used. These words are associated with the idea of uncaused and
voluntary actions. The whole field is a part of human behavior and
should not be separated from the other manifestations of life. I have
retained the words because they have a popular significance which is
easy to follow.
CLARENCE DARROW.
Chicago, August 1, 1922.
CONTENTS
Chapter
I. WHAT IS CRIME?
II. PURPOSE OF PUNISHMENT
III. RESPONSIBILITY FOR CRIME
IV. ENVIRONMENT
V. ADJUSTING HEREDITY AND ENVIRONMENT
VI. PSYCHOLOGY OF CRIMINAL CONDUCT
VII. THE CRIMINAL
VIII. THE FEMALE CRIMINAL
IX. THE JUVENILE CRIMINAL
X. HOMICIDE
XI. SEX CRIMES
XII. ROBBERY AND BURGLARY
XIII. MAN AS A PREDATORY ANIMAL
XIV. CRIMES AGAINST PROPERTY
XV. ATTITUDE OF THE CRIMINAL
XVI. THE LAW AND THE CRIMINAL
XVII. REPEALING LAWS
XVIII. IS CRIME INCREASING?
XIX. MEDICAL EXPERTS
XX. PUNISHMENT
XXI. EFFECT OF PUNISHMENT ON OTHERS
XXII. EVOLUTION OF PUNISHMENT
XXIII. CAPITAL PUNISHMENT
XXIV. STIGMATA OF THE CRIMINAL
XXV. THE GOOD IN CRIMINALS
XXVI. THE DEFECTIVE AND INSANE
XXVII. SOCIAL CONTROL
XXVIII. INDUSTRIALISM AND CRIME
XXIX. WAR AND CRIME
XXX. CIVILIZATION AND CRIME
XXXI. THE CONVICT
XXXII. ISOLATION AND STERILIZATION
XXXIII. CRIME, DISEASE AND ACCIDENT
XXXIV. LUCK AND CHANCE
XXXV. PARDONS AND PAROLES
XXXVI. REMEDIES
INDEX
CRIME
ITS CAUSE AND TREATMENT
I
WHAT IS CRIME?
There can be no sane discussion of "crime" and "criminals" without an
investigation of the meaning of the words. A large majority of men, even
among the educated, speak of a "criminal" as if the word had a clearly
defined meaning and as if men were divided by a plain and distinct line
into the criminal and the virtuous. As a matter of fact, there is no
such division, and from the nature of things, there never can be such a
line.
Strictly speaking, a crime is an act forbidden by the law of the land,
and one which is considered sufficiently serious to warrant providing
penalties for its commission. It does not necessarily follow that this
act is either good or bad; the punishment follows for the violation of
the law and not necessarily for any moral transgression. No doubt most
of the things forbidden by the penal code are such as are injurious to
the organized society of the time and place, and are usually of such a
character as for a long period of time, and in most countries, have
been classed as criminal. But even then it does not always follow that
the violator of the law is not a person of higher type than the majority
who are directly and indirectly responsible for the law.
It is apparent that a thing is not necessarily bad because it is
forbidden by the law. Legislators are forever repealing and abolishing
criminal statutes, and organized society is constantly ignoring laws,
until they fall into disuse and die. The laws against witchcraft, the
long line of "blue laws," the laws affecting religious beliefs and many
social customs, are well-known examples of legal and innocent acts which
legislatures and courts have once made criminal. Not only are criminal
statutes always dying by repeal or repeated violation, but every time a
legislature meets, it changes penalties for existing crimes and makes
criminal certain acts that were not forbidden before.
Judging from the kind of men sent to the State legislatures and to
Congress, the fact that certain things are forbidden does not mean that
these things are necessarily evil; but rather, that politicians believe
there is a demand for such legislation from the class of society that is
most powerful in political action. No one who examines the question can
be satisfied that a thing is intrinsically wrong because it is forbidden
by a legislative body.
Other more or less popular opinions of the way to determine right or
wrong are found to be no more satisfactory. Many believe that the
question of whether an act is right or wrong is to be settled by a
religious doctrine; but the difficulties are still greater in this
direction. First of all, this involves a thorough and judicial inquiry
into the merits of many, if not all, forms of religion, an investigation
which has never been made, and from the nature of things cannot be made.
The fact is, that one's religious opinions are settled long before he
begins to investigate and quite by other processes than reason. Then,
too, all religious precepts rest on interpretation, and even the things
that seem the plainest have ever been subject to manifold and sometimes
conflicting construction. Few if any religious commands can be, or ever
were, implicitly relied on without interpretation. The command, "Thou
shalt not kill," seems plain, but does even this furnish an infallible
rule of conduct?
Of course this commandment could not be meant to forbid killing animals.
Yet there are many people who believe that it does, or at least should.
No Christian state makes it apply to men convicted of crime, or against
killing in war, and yet a considerable minority has always held that
both forms of killing violate the commandment. Neither can it be held to
apply to accidental killings, or killings in self-defense, or in defense
of property or family. Laws, too, provide all grades of punishment for
different kinds of killing, from very light penalties up to death.
Manifestly, then, the commandment must be interpreted, "Thou shalt not
kill when it is wrong to kill," and therefore it furnishes no guide to
conduct. As well say: "Thou shalt do nothing that is wrong." Religious
doctrines do not and clearly cannot be adopted as the criminal code of a
state.
In this uncertainty as to the basis of good and bad conduct, many appeal
to "conscience" as the infallible guide. What is conscience? It
manifestly is not a distinct faculty of the mind, and if it were, would
it be more reliable than the other faculties? It has been often said
that some divine power implanted conscience in every human being. Apart
from the question of whether human beings are different in kind from
other organisms, which will be discussed later, if conscience has been
placed in man by a divine power, why have not all peoples been furnished
with the same guide? There is no doubt that all men of any mentality
have what is called a conscience; that is, a feeling that certain things
are right, and certain other things are wrong. This conscience does not
affect all the actions of life, but probably the ones which to them are
the most important. It varies, however, with the individual. What reason
has the world to believe that conscience is a correct guide to right
and wrong?
The origin of conscience is easily understood. One's conscience is
formed as his habits are formed--by the time and place in which he
lives; it grows with his teachings, his habits and beliefs. With most
people it takes on the color of the community where they live. With some
people the eating of pork would hurt their conscience; with others the
eating of any meat; with some the eating of meat on Friday, and with
others the playing of any game of chance for money, or the playing of
any game on Sunday, or the drinking of intoxicating liquors. Conscience
is purely a matter of environment, education and temperament, and is no
more infallible than any habit or belief. Whether one should always
follow his own conscience is another question, and cannot be confounded
with the question as to whether conscience is an infallible guide to
conduct.
Some seek to avoid the manifold difficulties of the problem by saying
that a "criminal" is one who is "anti-social." But does this bring us
nearer to the light? An anti-social person is one whose life is hostile
to the organization or the society in which he lives; one who injures
the peace, contentment, prosperity or well-being of his neighbors, or
the political or social organization in which his life is cast.
In this sense many of the most venerated men of history have been
criminals; their lives and teachings have been in greater or lesser
conflict with the doctrines, habits and beliefs of the communities where
they lived. From the nature of things the wise man and the idealist can
never be contented with existing things, and their lives are a constant
battle for change. If the anti-social individual should be punished,
what of many of the profiteers and captains of industry who manipulate
business and property for purely selfish ends? What of many of our great
financiers who use every possible reform and conventional catch word as
a means of affecting public opinion, so that they may control the
resources of the earth and exploit their fellows for their own gain?
No two men have the same power of adaptation to the group, and it is
quite plain that the ones who are the most servile and obedient to the
opinions and life of the crowd are the greatest enemies to change and
individuality. The fact is, none of the generally accepted theories of
the basis of right and wrong has ever been the foundation of law or
morals. The basis that the world has always followed, and perhaps always
will accept, is not hard to find.
The criminal is the one who violates habits and customs of life, the
"folk-ways" of the community where he lives. These customs and folk-ways
must be so important in the opinion of the community as to make their
violation a serious affair. Such violation is considered evil regardless
of whether the motives are selfish or unselfish, good or bad. The
folk-ways have a certain validity and a certain right to respect, but no
one who believes in change can deny that they are a hindrance as well as
a good. Men did not arrive at moral ideas by a scientific or a religious
investigation of good and bad, of right and wrong, of social or
anti-social life.
Man lived before he wrote laws, and before he philosophized. He began
living simply and automatically; he adopted various "taboos" which to
him were omens of bad luck, and certain charms, incantations and the
like, which made him immune from ill-fortune.
All sorts of objects, acts and phenomena have been the subjects of
taboo, and just as numerous and weird have been the charms and amulets
and ceremonies that saved him from the dangers that everywhere beset his
way. The life of the primitive human being was a journey down a narrow
path; outside were infinite dangers from which magic alone could make
him safe.
All animal life automatically groups itself more or less closely into
herds. Buffaloes, horses and wolves run in packs. Some of these groups
are knit closely together like ants and bees, while the units of others
move much more widely apart. But whatever the group may be, its units
must conform. If the wolf gets too far from the pack it suffers or dies;
it matters not whether it be to the right or the left, behind or ahead,
it must stay with the pack or be lost.
Men from the earliest time arranged themselves into groups; they
traveled in a certain way; they established habits and customs and ways
of life. These "folk-ways" were born long before human laws and were
enforced more rigidly than the statutes of a later age. Slowly men
embodied their "taboos," their incantations, their habits and customs
into religions and statutes. A law was only a codification of a habit or
custom that long ago was a part of the life of a people. The legislator
never really makes the law; he simply writes in the books what has
already become the rule of action by force of custom or opinion, or at
least what he thinks has become a law.
One class of men has always been anxious to keep step with the crowd.
The way is easier and the rewards more certain. Another class has been
skeptical and resentful of the crowd. These men have refused to follow
down the beaten path; they strayed into the wilderness seeking new and
better ways. Sometimes others have followed and a shorter path was made.
Often they have perished because they left the herd. In the sight of the
organized unit and the society of the time and place, the man who kept
the path did right. The man who tried to make a new path and left the
herd did wrong. In its last analysis, the criminal is the one who leaves
the pack. He may lag behind or go in front, he may travel to the right
or to the left, he may be better or worse, but his fate is the same.
The beaten path, however formed or however unscientific, has some right
to exist. On the whole it has tended to preserve life, and it is the way
of least resistance for the human race. On the other hand it is not the
best, and the way has ever been made easier by those who have violated
precepts and defied some of the concepts of the time. Both ways are
right and both ways are wrong. The conflict between the two ways is as
old as the human race.
Paths and customs and institutions are forever changing. So are ideas of
right and wrong, and so, too, are statutes. The law, no doubt, makes it
harder for customs and habits to be changed, for it adds to the inertia
of the existing thing.
Is there, then, nothing in the basis of right and wrong that answers to
the common conception of these words? There are some customs that have
been forbidden longer and which, it seems, must necessarily be longer
prohibited; but the origin of all is the same. A changing world has
shown how the most shocking crimes punished by the severest penalties
have been taken from the calendar and no longer even bear the suspicion
of wrong. Religious differences, witchcraft and sorcery have probably
brought more severe punishments than any other acts; yet a change of
habit and custom and belief has long since abolished all such crimes.
So, too, crimes come and go with new ideals, new movements and
conditions. The largest portion of our criminal code deals with the
rights of property; yet nearly all of this is of comparatively modern
growth. A new emotion may take possession of man which will result in
the repeal of many if not all of these statutes, and place some other
consideration above property, which seems to be the controlling emotion
of today.
Crime, strictly speaking, is only such conduct or acts as are forbidden
by the law and for which penalties are prescribed. The classification of
the act does not necessarily have relation to moral conduct. This cannot
be fixed by any exact standard. There is no straight clear line between
the good and bad, the right and wrong. The general ways of determining
good and bad conduct are of little value. The line between the two is
always uncertain and shifting. And, in the last analysis, good or bad
conduct rests upon the "folk-ways," the habits, beliefs and customs of a
community. While this is the real basis of judging conduct, it is
always changing, and from the nature of things, if it could be made
stable, it would mean that society was stratified and all hope of
improvement dead.
II
PURPOSE OF PUNISHMENT
Neither the purpose nor the effect of punishment has ever been
definitely agreed upon, even by its most strenuous advocates. So long as
punishment persists it will be a subject of discussion and dispute. No
doubt the idea of punishment originated in the feeling of resentment and
hatred and vengeance that, to some extent at least, is incident to life.
The dog is hit with a stick and turns and bites the stick. Animals repel
attack and fight their enemies to death. The primitive man vented his
hatred and vengeance on things animate and inanimate. In the tribes no
injury was satisfied until some member of the offending tribe was
killed. In more recent times family feuds have followed down the
generations and were not forgotten until the last member of a family was
destroyed. Biologically, anger and hatred follow fear and injury, and
punishment follows these in turn. Individuals, communities and whole
peoples hate and swear vengeance for an injury, real or fancied.
Punishments, even to the extent of death, are inflicted where there can
be no possible object except revenge. Whether the victim is weak or
strong, old or young, sane or insane, makes no difference; men and
societies react to injury exactly as animals react.
That vengeance is the moving purpose of punishment is abundantly shown
by the religious teachings that shape the ethical ideas of the Western
world. The Old Testament abounds in the justification of vengeance. A
few quotations amply show the Biblical approval of this doctrine:
Whoso sheddeth man's blood, by man shall his blood be shed.
Genesis 9;6.
No expiation can be made for the land for the blood that is shed
therein, but by the blood of him that shed it. Numbers 35;33.
Wherefore should the nations [Gentiles] say, Where is their [the
Jews'] God? Let the avenging of the blood of thy servants which is
shed, be known among the nations in our sight. Psalms 79;10.
The righteous shall rejoice when he seeth the vengeance; he shall
wash his feet in the blood of the wicked; so that men shall say,
Verily there is a reward for the righteous, verily there is a God
that judgeth in the earth. Psalms 58;10.
And I [God] will execute vengeance in anger and wrath upon the
nations which hearkened not. Micah 5;15.
All things are cleansed with blood, and apart from the shedding of
blood there is no remission. Hebrews 9;22.
For we know him that said, Vengeance belongeth unto me. ... It is a
fearful thing to fall into the hands of the living God. Hebrews
10;30.
True it is often claimed that Jesus repudiated the doctrine of
vengeance. The passage of 5th Matthew, 38-30 is often quoted in proof of
this assertion--"Ye have heard that it hath been said, an eye for an
eye and a tooth for a tooth. But I say unto you, that ye resist not
evil, but whosoever shall smite thee on thy right cheek, turn to him the
other also." But the gospels and the other books of the New Testament
show plainly that non-resistance was not laid down as a rule for the
guidance of mankind, but only as a policy by one sect of the Jews and
Christians to save themselves from the Romans. The reason for the
doctrine was the belief that resistance was hopeless, and that God who
had the power would in his own time visit on the oppressors the
vengeance that the Jews and Christians were too weak to inflict. Jesus
and the early Christians knew of no people beyond their immediate
territory, and they did not appeal to mankind as a whole, or to future
generations.
The early Christians believed in judging and in punishment as vengeance,
the same as the Jews and other peoples believed in it. (See 13 Matthew
41-43, 23 Matthew 33, 25 Matthew 46.) They believed that the end of the
world was at hand; that the coming of the Lord was imminent; that some
of that generation would not taste death, and that God would punish
sinners in his own time. The New Testament is replete with this
doctrine, which was stated and elaborated in the so-called "Revelations
of St. Peter."
Probably this document was composed about the year 150 A.D. and by the
year 200 it was read as "Scripture" in some Christian communities.
Subsequently it disappeared and was known only by name until a
substantial fragment of the document was discovered at Akhmim in Egypt,
in the year 1887. A portion of it represents a scene in which the
disciples of Jesus ask him to show them the state of the righteous dead,
in order that this knowledge may be used to encourage people to accept
Christianity. The request is granted and the disciples are shown not
only a vision of the delightful abodes of the righteous, but also a
vivid picture of the punishments that are being meted out to the wicked.
It is interesting to note how the punishments are devised to balance in
truly retributive fashion the crimes mentioned. It is this type of
tradition that furnished Dante and Milton the basis for their pictures
of hell.
The following is the more interesting portion of this document:
And the Lord showed me [Peter] a very great country outside of this
world, exceeding bright with light, and the air there lighted with
rays of the sun, and the earth itself blooming with unfading flowers
and full of spices and plants, fair-flowering and incorruptible and
bearing blessed fruit. And so great was the perfume that it was
borne thence even unto us. And the dwellers in that place were clad
in the raiment of shining angels and their raiment was like unto
their country; and angels hovered about them there. And the glory of
the dwellers there was equal, and with one voice they sang praises
alternately to the Lord God, rejoicing in that place. The Lord said
to us, This is the place of your brethren the righteous.
And over against that place I saw another, exceedingly parched, and
it was the place of punishment. And those who were being punished
there and the angels who punished them wore dark raiment like the
air of the place.
Certain persons there were hanging by the tongue. These were they
who blaspheme the way of righteousness, and under them lay a fire
whose flames tortured them.
Also there was a great lake full of flaming mire in which were
certain men that pervert righteousness, and tormenting angels
afflicted them.
And there were also others, women, hanged by their hair over that
mire that flamed up, and these were they who adorned themselves for
adultery. And the men who mingled with them in the defilement of
adultery, were hanging by the feet with their heads in that mire,
and they exclaimed in a loud voice: We did not believe that we
should come to this place.
And I saw the murderers and their accomplices cast into a certain
narrow place full of evil snakes where these evil beasts smote them
while they turned to and fro in that punishment, and worms like
great black clouds afflicted them. And the souls of those who had
been murdered said, as they stood and looked upon the punishment of
their murderers, O God, just is thy judgment.
And other men and women were aflame up to the middle, and were cast
into a dark place and were beaten by evil spirits, and their inwards
were eaten by restless worms. These were they who persecuted the
righteous and delivered them up to the authorities.
And over against these were other men and women gnawing their
tongues and having flaming fire in their mouths. These were false
witnesses.
And in a certain other place there were pebbles sharper than swords
or any needle, red hot, and women and men in tattered and filthy
raiment, rolled about on them in punishment. These were the rich who
trusted in their riches and had no pity for orphans and widows and
despised the commandment of God.
And in another great lake full of boiling pitch and blood and mire
stood men and women up to their knees. These were the usurers and
those who take compound interest.
The noted preacher, scholar and president of Princeton College, Jonathan
Edwards, in his famous sermon, "Sinners in the Hands of an Angry God,"
put in forcible and picturesque language the religious and legal view of
punishment as vengeance:
They [sinners] deserve to be cast into hell; so that divine justice
never stands in the way, it makes no objection against God's using
His power at any moment to destroy them. Yea, on the contrary,
justice calls aloud for an infinite punishment on their sins. Divine
justice says of the tree that brings forth such grapes of Sodom,
"Cut it down, why cumbereth it the ground?" Luke xiii. 7. The sword
of divine justice is every moment brandished over their heads, and
it is nothing but the hand of arbitrary mercy, and God's mere will,
that holds it back.
They are now the objects of that very same anger and wrath of God,
that is expressed in the torments of hell: and the reason why they
do not go down to hell at each moment, is not because God, in whose
power they are, is not then very angry with them; as angry as He is
with many of those miserable creatures that He is now tormenting in
hell, and do there feel and bear the fierceness of His wrath. Yea,
God is a great deal more angry with great numbers that are now on
earth; yea, doubtless, with many that are now in this congregation,
that, it may be, are at ease and quiet, than He is with many of
those that are now in the flames of hell.
So that it is not because God is unmindful of their wickedness and
does not resent it, that He does not let loose His hand and cut them
off. God is not altogether such a one as themselves, though they
imagine Him to be so. The wrath of God burns against them; their
damnation does not slumber; the pit is prepared; the fire is made
ready; the furnace is now hot; ready to receive them; the flames
rage and glow. The glittering sword is whet and held over them, and
the pit hath opened her mouth under them.
The God that holds you over the pit of hell, much as one holds a
spider, or some loathsome insect over the fire, abhors you, and is
dreadfully provoked; His wrath towards you burns like fire; He looks
upon you as worthy of nothing else, but to be cast into the fire; He
is of purer eyes than to bear to have you in His sight; you are ten
thousand times more abominable in His eyes than the most hateful and
venomous serpent is in ours. You have offended Him infinitely more
than ever a stubborn rebel did his prince: and yet it is nothing but
His hand that holds you from falling into the fire every moment; it
is ascribed to nothing else, that you did not go to hell the last
night; that you was suffered to awake again in this world, after you
closed your eyes to sleep; and there is no other reason to be given,
why you have not dropped into hell since you arose in the morning,
but that God's hand has held you up; there is no other reason to be
given why you have not gone to hell, since you have sat here in the
house of God provoking His pure eyes by your sinful, wicked manner
of attending His solemn worship; yea, there is nothing else that is
to be given as a reason why you do not this very moment drop down
into hell.
O sinner! consider the fearful danger you are in: it is a great
furnace of wrath, a wide and bottomless pit, full of the fire of
wrath, that you are held over in the hand of that God whose wrath is
provoked and incensed as much against you as against many of the
damned in hell: you hang by a slender thread, with the flames of
divine wrath flashing about it, and ready every moment to singe it
and burn it asunder; and you have no interest in any Mediator, and
nothing to lay hold of to save yourself, nothing to keep off the
flames of wrath, nothing of your own, nothing that you ever have
done, nothing that you can do, to induce God to spare you one
moment.
Consider this, you that are here present, that yet remain in an
unregenerate state. That God will execute the fierceness of His
anger, implies that He will inflict wrath without any pity.
Even though increasing knowledge may have somewhat softened the language
of vengeance, still both religion and the law have found their chief
justification for punishment in the doctrine of revenge.
The church has constantly taught from the first that God would punish
the sinner with everlasting torment. It has taught that all are bad from
birth and can be saved only by grace. The punishment to be suffered was
as terrible as man's mind could conceive. It would continue infinitely
beyond the time when it might be needed for correction or example. In
spite of a few humane or over-sensitive ministers, the doctrine persists
and is carefully preserved by the church. That the State likewise holds
fast to the idea of vengeance, punishment for the sake of suffering, is
just as evident. One needs only to note the force and degree of hatred
of the good to the one accused of crime, and the zeal that is shown for
a man hunt, to realize how deeply the feeling of vengeance is planted in
the structure of man. The truth is that it was a part of life before
religion and political institutions were evolved.
Still, most people are now ashamed to admit that punishment is based on
vengeance and, for that reason, various excuses and apologies have been
offered for the cruelty that goes with it. Some of the more humane, or
"squeamish," who still believe in punishment, contend that the object of
this infliction is the reformation of the victim. This, of course,
cannot be urged of the death penalty or even punishment for life, or for
very long-term sentences. In these cases there is neither inducement to
reform nor any object in the reformation. No matter how thorough the
reform, the prisoner never goes back to society, or he returns after
there is no longer a chance for him to be of use to the world or to
enjoy life.
Those who say that punishment is for the purpose of reforming the
prisoner are not familiar with human psychology. The prison almost
invariably tends to brutalize men and breeds bitterness and blank
despair. The life of the ordinary prisoner is given over to criticism
and resentment against existing things, especially to settled hatred of
those who are responsible for his punishment. Only a few, and these are
the weakest, ever blame themselves for their situation. Every man of
intelligence can trace the various steps that led him to the prison
door, and he can feel, if he does not understand, how inevitable each
step was. The number of "repeaters" in prison shows the effect of this
kind of a living death upon the inmates. To be branded as a criminal and
turned out in the world again leaves one weakened in the struggle of
life and handicapped in a race that is hard enough for most men at the
best. In prison and after leaving prison, the man lives in a world of
his own; a world where all moral values are different from those
professed by the jailer and society in general. The great influence that
helps to keep many men from committing crime--the judgment of his
fellows--no longer deters him in his conduct. In fact, every person who
understands penal institutions--no matter how well such places are
managed--knows that a thousand are injured or utterly destroyed by
service in prison, where one is helped.
Very few persons seriously believe that offenders are sent to prison out
of kindness to the men. If there were any foundation for this idea, each
prisoner would be carefully observed, and when he was fit would be
returned to the world. Not even the parole laws, which provide various
reasons and ways for shortening sentences, ever lay down the rule that
one may be released when he has reformed.
A much larger class of people offers the excuse that punishment deters
from crime. In fact, this idea is so well rooted that few think of
questioning it. The idea that punishment deters from crime does not mean
that the individual prisoner is prevented from another criminal act. A
convicted man is kept in jail for as long a time as in the judgment of
the jury, the court, or the parole board, will make him atone, or at
least suffer sufficiently for the offence. If the terms are not long
enough, they can be made longer. The idea that punishment deters, means
that unless A shall be punished for murder, then B will kill; therefore
A must be punished, not for his own sake, but to keep B from crime. This
is vicarious punishment which can hardly appeal to one who is either
just or humane. But does punishing A keep B from the commission of
crime? It certainly does not make a more social man of B. If it operates
on him in any way it is to make him afraid to commit crime; but the
direct result of scaring B is not to keep him from the commission of
crime, but to make him use precautions that will keep him safe from
discovery. How far the fear of detection and punishment prevents crime
is, of course, purely theoretical and cannot be settled either by
statistics or logic. One thing is sure, that if B is kept from crime, it
is through fear, and of all the enemies of man, fear is the one which
causes most misery and pain.
There are many facts that show that the punishment of one does not deter
others. Over and over again crimes are committed, by the young
especially, that resemble in every detail a previous crime which has
received large publicity through the newspapers, often through the
hanging of some culprit. Even the unthinking public, always clamoring
for severe penalties, does not believe that the example of punishment
deters. The public forbids the exhibition of pictures of hangings and of
crimes. Somehow, vaguely and dimly as most men see everything, the
public realizes that instead of punishments preventing crime,
punishments suggest crime. In the olden days when men admitted that
vengeance and punishment went together, they were at least more logical,
for executions were in the open light of day so all might see and be
deterred.
But this sort of punishment was abolished long ago. Now executions are
behind tightly-closed doors, often before day-break, with no one present
but a doctor to pronounce the victim dead, a preacher to try to save his
soul, and a few favored guests. The most humane individuals advocate
suppressing the stories in the newspapers, beyond an obituary notice for
the deceased, and forbidding the publication of the details of the crime
and its penalty. So far as this succeeds, it is a confession that
punishment does not deter, but instead suggests and encourages crime.
The idea that crime is prevented by punishment, if believed, would be
followed by requirements that the young should visit prisons that they
might realize the consequences of crime, and that all executions should
be public and should be performed on the highest hill.
So much has been written about the decrease of crime that follows the
reduction of penalties, and likewise about the numerous crimes of
violence which generally follow public hangings, that it is hardly
necessary to recall it to the reader. The fact is, those who say that
punishment deters have no confidence in their own statement.
The operations of the human mind have always been clouded in mystery and
obscurity. The effect of what is seen and heard and felt has never been
certain. The great power of suggestion, especially with the young, is
only now beginning to be understood. Many things can be done by
suggestion. The immature brain records everything that the senses carry
to it through the nerves; these records, through lively imagination, are
constantly suggesting and urging to action. All good teachers and
observing parents know its power and, so far as such matters can be
proved, it seems clear that the details of crime and punishment
reproduce themselves over and over again by the suggestion carried to
the mind, especially with the young. There is every reason to think that
suggestions of crime will affect the mind as much as suggestions of
adventure, love or war.
Does it then follow that no one shall be restrained from freedom on
account of either his actions or his nature? It is really idle to ask
this question. No matter what one may think of the so-called criminal
and his responsibility, or quite regardless of whether we feel pity or
hatred, the great mass of the community will not suffer one who has
little self-control to interfere seriously and directly with the peace
and happiness of the community in which he lives. Whether by the action
of the law or by vigilance committees, some men will not be allowed to
be at large. Doubtless under proper treatment and environment most of
this sort of anti-social conduct would disappear, but for many years to
come it will remain.
Taking away the liberty of another has only one justification. The great
mass of people in any community must and will act for self-defense. It
needs no fine-spun theories to justify it. Hatred should have nothing to
do with it. The conduct of man in this regard is only like that of the
animal which destroys the one that is inimical to the pack or herd. The
self-protection of the group is the same as the self-protection of the
individual. Both the group and the man will save their lives against a
lunatic or any other menace, regardless of the nature of the menace.
Punishment, in the proper meaning of the term, cannot be justified by
any reasoning. Punishment really means the infliction of pain because
the individual has wilfully transgressed. Its supposed justification is
that somehow the evil done is atoned for, or made good, or balanced if
the author of the evil shall suffer pain. Punishment means that the
suffering by the victim is the end, and it does not mean that any good
will grow out of the suffering. It seems as if the question only needed
to be stated for right-thinking men to deny the validity of punishment.
It may be argued that whether the victim is punished or simply
restrained can make no difference. In this lies the whole difference
between scientific and humane treatment of the unfortunate, and the
vengeful punishments that have always been visited by the strong upon
the helpless and the weak. Society restrains the imbecile, the
dangerously insane, the victims of deadly, contagious diseases. All
these are restrained without any feeling of hatred, but with pity and
understanding. Society does not keep one of these persons under
restraint after he has sufficiently recovered to make it safe to return
him to the community; neither does it release one until he is safe. It
uses the best methods for his treatment that may make him fit to live
with his fellows, and the best efforts to place him in a proper
environment when discharged. Neither does any disgrace nor humiliation
nor handicap attach to the unfortunate when discharged. In a sense, the
attitude of mind held by the group toward the "criminal" is the whole
question. From this everything follows, and without it change or
humanity or hope is not possible.
It is true that insane asylums, homes for the feeble-minded, and
hospitals are not what they should be, nor what they will be some day.
All of this is not due to the attitude of the mind of the public, but is
due to the method of administration which is not within the scope of
this book. If justice and humanity shall ever have to do with the
treatment of the criminal, and if science shall ever be called upon in
this, one of the most serious and painful questions of the ages, it is
necessary, first, that the public shall have a better understanding of
crime and criminals.
III
RESPONSIBILITY FOR CRIME
It is only lately that we are beginning to find out anything about the
origin and nature of man. Laws have come down to us from old customs and
folk-ways based on primitive ideas of man's origin, capacity and
responsibility. It has been generally assumed that man was created
different from all the rest of animal life; that man alone was endowed
with a soul and with the power to tell good from evil; that in the
beginning man was perfect but yielded to temptation, and since then has
been the subject of an everlasting contest between the powers of light
and the powers of darkness for the possession of his soul; that man not
only knew good from evil, but was endowed with "free will," and had the
power to choose between good and evil; and that when he did wrong he
deliberately chose to do so out of an abandoned and malignant heart; and
that all men alike were endowed with this power and all alike were
responsible for their acts.
The old indictments charged that: "John Smith, being a wicked, malicious
and evil disposed person, not having the fear of God before his eyes,
but being moved and seduced by the instigation of the devil etc." It
followed, of course, that John Smith should be punished or made to
suffer, for he had purposely brought all the evil on himself. The old
idea is still the foundation of the world's judgment of men, in court
and out. Of course this idea leaves no room for mercy and understanding.
Neither does it leave any chance to give the criminal the proper
treatment for his defects which might permit him to lead a normal life.
As a matter of fact, every scientific man knows that the origin of life
is quite different from this; that the whole current conception of the
individual and his responsibility is a gross error; and that no correct
judgments can be based on the old foundation; that no sane treatment of
crime can follow this assumption of man's origin and nature; that the
result of this foundation is almost infinite injustice and cruelty to a
large and constantly growing number of men and women; and that it tends
to endless injury and evil to society. The conception of man and the
treatment of crime and criminals by the courts is not better nor more
scientific than was the old-time doctors' treatment of physical ailments
by magic, incantations and sorcery.
The origin and development of all animal life is the same. In fact, the
development of plant life is on a similar pattern. The origin of a
human being is a simple cell, an egg. This cell is fertilized and
through growth after fertilization begins dividing and building and
taking on the form and semblance of a human being. All children have the
same origin, the same development and the same pattern, yet no two are
alike. Each has a distinct and different equipment from any of the
others. The size of the body, real and potential; the size and fineness
of the brain; the delicacy and sensitiveness of the nervous system; the
innate instincts upon which conduct mainly rests; the emotions which
control action and which flow from the structure--in short, the degree
of perfection and imperfection of the machine is all hidden in the
original cell. No well-informed person now thinks of questioning the
fact that the main characteristics of the human being, as of every other
animal and plant, are hidden in the germ or seed from which it sprang.
The laws of growth and development which govern organic matter were not
made for man and do not except man. Life begins with the cell and
evolves according to pattern. If the cell is that of a human being, it
will be black or white, male or female, tall or short, intelligent or
stupid, sensitive or stolid; it will develop a large or a small brain, a
fine one or a poor one, a sensitive nervous system or a defective one;
it will be ruled by instincts that are all-powerful and controlling,
and even the color of the hair and eyes are in the pattern. The whole
structure, potentially, is in the original cell, and infinite knowledge
could tell how the structure would respond to sensations as it passed
through life.
It is obvious that the kinds and differences of human structures are
infinite. It is no more possible for all men to respond equally to the
same stimulus, than it is for all machines or all animals to respond
alike. It is apparent that not one of the structures can ever work
perfectly, and that from the best down to the poorest structures are
infinite degrees of perfection, even down to the machine that has no
capacity for any kind of work.
No ordinarily intelligent farmer doubts for a moment that all of this is
true in the breeding of stock. He would never expect the same results
from various breeds of cattle or even from all cattle of the same breed.
There is no exception to the rule that the whole life, with every
tendency, is potential in the original cell. An acorn will invariably
produce an oak tree. It can produce no other tree, and it will always
develop true to its own pattern. The tree may be larger or smaller, more
or less symmetrical, stronger or weaker, but always true to the general
pattern of the oak. Variations will be certain, due in part to heredity
and in part to environment.
That the baby had nothing to do with its equipment will readily be
admitted by everyone. The child is born with a brain of a certain size
and fineness. It is born with a nervous system made up of an infinite
number of fine fibers reaching all parts of the body, with fixed
stations or receivers like the central stations of a telephone system,
and with a grand central exchange in the brain. If one can imagine all
of the telephone wires in the world centered in one station, he may have
some sort of a conception of the separate nerves that bring impressions
to the brain and send directions out from it, which together make up the
nervous system of man. None of these systems is perfect. They are of all
degrees of imperfection down to the utterly useless or worse than
useless system. These nerves are of all degrees of sensitiveness and
accuracy in receiving and transmitting messages. Some may work well,
others imperfectly. No one is much surprised when an automobile,
equipped with a mechanism much simpler than the nervous system, refuses
to respond properly.
The child is born without knowledge but with certain tendencies,
instincts, capacities and potential strength or weakness. His nervous
system and his brain may be good or bad--most likely neither very good
nor very bad. All of his actions both as a child and as a man are
induced by stimulation from without. He feels, tastes, sees, hears or
smells some object, and his nerves carry the impression to his brain
where a more or less correct registration is made. Its correctness
depends largely upon the perfection of the nervous system and the
fineness of the material on which the registration is made. Perfect or
imperfect, the child begins to gather knowledge and it is stored in this
way. To the end of his days he receives impressions and stores them in
the same manner. All of these impressions are more or less imperfectly
received, imperfectly conveyed and imperfectly registered. However, he
is obliged to use the machine he has. Not only does the machine register
impressions but it sends out directions immediately following these
impressions: directions to the organism as to how to run, to walk, to
fight, to hide, to eat, to drink, or to make any other response that the
particular situation calls for.
Then, too, stimulated by these impressions, certain secretions are
instantly emptied from the ductless glands into the blood which, acting
like fuel in an engine, generate more power in the machine, fill it with
anger or fear and prepare it to respond to the directions to fight or
flee, or to any type of action incident to the machine. It is only
within a few years that biologists have had any idea of the use of
these ductless glands or of their importance in the functions of life.
Very often these ductless glands are diseased, and always they are more
or less imperfect; but in whatever condition they are, the machine
responds to their flow.
The stored-up impressions are more or less awakened under stimulation.
As life goes on, these stored impressions act as inhibitions or
stimulations to action, as the case may be. These form the material for
comparisons and judgments as to conduct. Not only are the impressions
imperfect and the record imperfect, but their value and effect depend on
the brain which compares and considers the impressions. From all this
mechanism, action is born.
That man is the product of heredity and environment and that he acts as
his machine responds to outside stimuli and nothing else, seem amply
proven by the evolution and history of man. But, quite aside from this,
logic and philosophy must lead to the same conclusions. This is not a
universe where acts result from chance. Law is everywhere supreme. Every
process of nature and life is a continuous sequence of cause and effect.
No intelligent person would ever think of an effect in the physical
world which did not follow a cause or causes. It has taken man a long
time to find this out. The recurrence of the seasons, the seed-time and
harvest, the common phenomena of Nature, were once supposed to be
outside the realm of cause and effect and due to the whim of some
powerful being. But the laws of matter are now coming to be understood.
Chance, accident and whim have been banished from the physical world.
The acts of men alone are supposed to be outside the realm of law. There
is a cause for the eternal revolution of the earth around the sun, for
the succession of seed-time and harvest, for growth and decay; but not
for the thoughts and actions of man.
All the teaching of the world is based on the theory that there is no
free will. Why else should children be trained with so much care? Why
should they be taught what is right and what is wrong? Why should so
much pains be taken in forming habits? To what effect is the storing of
knowledge in the brain of the child, except that it may be taught to
avoid the wrong and to do the right? Man's every action is caused by
motive. Whether his action is wise or unwise, the motive was at least
strong enough to move him. If two or more motives pulled in opposite
directions, he could not have acted from the weakest but must have
obeyed the strongest. The same motives applied to some other machine
might have produced an opposite result, but to his particular structure
it was all-controlling. How any special motive will affect any special
machine must depend upon the relative strength of the motive and make of
the machine. It is for this reason that intelligent people have always
taken so much pains to fortify the machine, so that it would respond to
what they believed was right. To say that one could ever act from the
weakest motive would bring chaos and chance into a world of method and
order. Even punishment could have no possible effect to deter the
criminal after release, or to influence others by the example of the
punishment. As well might the kernel of corn refuse to grow upward to
the sunlight, and grow downward instead.
Before any progress can be made in dealing with crime the world must
fully realize that crime is only a part of conduct; that each act,
criminal or otherwise, follows a cause; that given the same conditions
the same result will follow forever and ever; that all punishment for
the purpose of causing suffering, or growing out of hatred, is cruel and
anti-social; that however much society may feel the need of confining
the criminal, it must first of all understand that the act had an
all-sufficient cause for which the individual was in no way responsible,
and must find the cause of his conduct, and, so far as possible, remove
the cause.
IV
ENVIRONMENT
The acorn will inevitably produce the oak tree and it will grow true to
its pattern. All seeds and cells will do likewise. Still if the acorn is
planted in good soil, where it is properly nourished and in a spot where
it is sufficiently sheltered, the tree will be more likely to become
large and symmetrical, than if it is planted in poor soil or in an
exposed spot.
In one sense heredity is the seed, and environment the soil. The whole
structure and pattern and inherent tendencies and potentiality are in
the seed and cannot be changed. The child has nothing to do with its
early environment during the period when impressions sink the deepest
and when habits are formed. It is then that the meaning of facts is
interpreted. At this time the child is fashioned by the teachings and
environment in which it is placed. As the child receives its first
impressions, and all along through its development, it is forming habits
from those about it. These habits come to be strong, dominating forces
in its life. Very few people, if any, can trace definite views of
conduct or thought to their conscious effort, but these are born of
their structure and the environment that formed their habits after
birth.
The fact that an individual's political and religious faith depends
almost entirely on his place of birth and early youth, shows the
strength of environment in forming and shaping opinions and beliefs.
As the child grows and develops, it is influenced by all that surrounds
it. The human machine moves in response to outside stimulation. How it
will move depends upon two things, the character of the stimulant and
the machine to which it is applied. No two machines will act exactly
alike from the same stimulus. Sometimes they act in diametrically
opposite ways. For instance, under the same stimulation, one may run and
another may fight, depending perhaps on the secretions that the ductless
glands empty into the blood.
No machine can act except according to its make-up. Even an ignorant
person, who finds that the same stimulant produces different results on
different machines, would know that the structures are not the same.
Endless discussions have been devoted to the relative importance of
heredity and environment in human conduct. This is a fruitless task. In
a sense, each one is of supreme importance in the outcome of a life. It
is obvious that some structures are so perfect that almost no
environment will overcome them. Instances of strong men developing out
of poor environment are not rare. Many of these may be subject to doubt
as to whether the heredity caused the strength, for the smallest
particle of luck at some special or vital time may make all the
difference possible in the outcome of a life. While some heredities
withstand a poor environment, others are so poor that, no matter how
good the environment, the machine cannot survive. An idiot is an
illustration of one whom environment cannot change. No heredity will
overcome the hardest environment. The old saying, "every man has his
price," is true in this sense, that every machine will stand just so
much and no more. Some machines reach the breaking point soon and some
later, but all have their limit. Most people have a heredity that is not
the best nor yet the worst. Given an imperfect machine, they are thrown
into a certain environment, and then up to the capacity of their
machines the outcome depends entirely on the environment. Given an
environment easy enough they will succeed, or at least "get by." Given a
hard environment they will fail, or "go down." Tens of thousands of men
live in a comparatively easy environment and pass their lives as useful
citizens with no taint of criminality to their names, who under a hard
environment would be found in prison. On the other hand, perhaps most of
the inmates of prisons would have lived as respected citizens if their
environment had not been so hard. Heredity has everything to do with
making the machine strong and capable, or weak and useless; but when the
machine is made and thrown on the world in its imperfect shape,
environment has everything to do in determining what its fate shall be.
V
ADJUSTING HEREDITY AND
ENVIRONMENT
Most people live a narrow existence. Perhaps the great majority of men
and women find their safety in this kind of a life. The adjustment of
heredity and environment is not an easy task to one who lives an
unsheltered life. The ordinary person, thrown on his own resources, is
poorly equipped for existence. His opinions on most matters are not
sound. He uses poor judgment as to how he shall spend the little money
he gets. He is generally driven by debts and harassed in all his efforts
to get a living. A large family adds to his trouble and his existence is
a constant struggle with what, to him, is an almost hopeless fate.
Industrial conditions for the most part are relentless and hard. The
poor man is thrown into competition with his fellows for work. He may
get along when work is easy to get and wages are good, but in dull times
he falls behind, and is in hopeless trouble. His life is a long, hard
struggle to make adjustments to his environment, and it is not strange
that he goes down so often before the heavy task. Failure to make proper
adjustments directly and indirectly often means prison to him.
Again, the ordinary and especially the weak man is hopelessly puzzled by
his environment. It must never be overlooked that man has a lowly
origin. The marks of his humble birth are in his whole structure and
life. His make-up has been the work of the ages. He is a late
development of a life that knew nothing of law, as law is understood
today. His ancestors were hungry and went out after food, they killed
their prey and took their food by main strength whenever they had the
power. They were subject to certain customs which were very strict, but
which were few and did not seriously complicate life. They knew only the
law of force. Their existence was simple and primal, and they were
governed by no "rights," except such simple ones as were made by might
and custom.
Civilization is a constant building-up of limitations around heredity; a
persistent growth of environmental control as it progresses, or at least
moves along. This structure, especially the legal structure, is built by
the more intelligent and always by the strong men. It is always shifting
and moving, and it is impossible for the inferior man to adjust his
emotions and his life rapidly to the changes. Things which are not
condemned by his feelings of right and wrong are condemned by laws that
meet with no response from his emotions and moral ideas. To him at least
these are not different from the things that are done by others with
impunity and without rebuke. Especially is this true of the rapidly
growing class of property laws that have had no counterpart in the early
history of man. This list has grown so fast that it is beyond the power
of a large class of men to find in their feelings any response to many
of these criminal statutes. The ever-growing social restrictions are of
the same modern growth, and it is equally impossible to feel and
understand them. What we call civilization has moved so fast that the
structure and instincts of man have not been able to become adjusted to
it. The structure is too cumbersome, too intense, too hard, and if not
breaking down of its own weight, it is at least destroying thousands who
cannot adjust themselves to its changing demands. Not only are the
effects of this growing body of social and legal restrictions shown
directly by their constant violation, generally by the inferior and the
poor, but indirectly in their strain on the nervous system; by the
irritation and impatience that they generate, and which, under certain
conditions cause acts of violence.
VI
PSYCHOLOGY OF CRIMINAL CONDUCT
No one can understand conduct without knowing something of the
psychology of human action. First of all, it must be understood that
reason, which so many have idealized and placed in control of the human
machine, has little to do with the actions of men. It is a common habit
with most men to find fault with and bewail the fact that human beings
do not act from reason. However much the truth is impressed upon us, we
never seem to realize that the basis of action is in instinct and
emotion. It is really useless to quarrel with Nature. Whether it would
have been better to have made man some other way is not worth
discussing. He has been evolved in a certain way and we must take him as
he is. Our impatience with the method that Nature has provided for
influencing human conduct is largely due to our idea of the meaning of
life.
Man has fancied himself in a position in the animal world that facts of
life and nature do not sustain. We seem to feel that man has some high
calling; that he should make something of himself which cannot be
accomplished; that he should form some sort of a perfect order that he
never can reach; in short that man has a purpose and a mission. It is
manifest that all we know is but a mite compared with the unknown, and
it may be that sometime a purpose will be revealed of which man never
dreamed. Still from all that we can see and understand, Nature has but
one desire, and that is the preservation and perpetuation of life. This
is its purpose or, rather, its strongest urge not only with men but with
all animal life. Sometimes to create one fish a million eggs are
spawned. Nature is profligate both in spawning life and compassing its
destruction. In the human species the capacity for life is immeasurably
beyond its fruition. A large portion of those who are born die an early
death. And that human life shall not be extinct, Nature plants the
life-giving desire deep in the constitution of man. The creation of life
comes from an instinct so profound and absorbing that it carries a train
of evils in its wake. Many are overweighted by the sex instinct to their
positive harm. Nature somehow did not trust such a fundamental duty as
the preservation of the race to reason. If intellectual processes were
responsible for life, the world no doubt would soon be bare of animate
things. Neither could the care of the young be trusted to anything but
the deep-seated instinct that causes the mother to forget her own life
in the preservation of the life of her child.
The functions of body, on which life is founded, do not depend upon
reason. The heart begins to beat before birth; it continues to beat
until the end of life. The reason has nothing to do with the heart
performing its function. Man goes to sleep at night confident that it
will still be beating in the morning. The blood circulates in the veins
independent of the thoughts of man. The digestive processes go on
whether he sleeps or is awake. Many of his muscles never rest from birth
to death. Life could not be preserved through the intellectual
processes.
Human action is governed largely by instinct and emotion. These
instincts and emotions are incident to every living machine and are the
motor forces that impel the organism. They do not think. They act, and
act at once. All the mind can do is to place some restraint on such
instincts and emotions through experience, education and settled habits.
If the actions are never inhibited, the machine will tear itself to
pieces. If too easily inhibited, it will do no work. It is manifest that
the perfect machine does not exist.
Man is moved by his instinct of flight and his emotion of fear, which
are set in motion by apprehended dangers and by unaccustomed sights or
sounds. Terror sometimes becomes so intense that it prevents flight and
brings convulsions and death. It is idle to reason with one in terror.
It is idle to reason with a mob in terror or a nation in terror. One
might as well expect to calm a tempestuous sea with soft words.
The instinct of repulsion brings hatred and dislike and, combined with
the instinct of pugnacity, may lead to crimes of violence. When these
instincts are strong enough, the weak and superficial barriers cannot
stand against them. An electrical flash showing the scaffold with the
noose above it would have no force to stop an instinct and emotion fully
aroused. Through seeing, feeling, hearing, tasting or smelling, some
instinct is called into action. Many times several conflicting instincts
are aroused. The man is like a tree bent back and forth by the storm. If
the storm is hard enough, sooner or later it will break. Which way the
tree falls has nothing to do with the consciousness of the tree, but has
to do only with the direction of the prevailing and controlling force.
The instinct of gregariousness draws animals or men together into
communities and close relations. This is one of the strongest instincts
and not only preserves life but is fundamental to those human
associations that are the basis of civilization. Except for this,
animals would live a lonely life and probably perish from the earth.
Through this instinct, man builds his villages and cities and organizes
his states and nations. With the gregarious instinct and the parental
instinct drawing men together, and the instincts and emotions of flight,
fear and pugnacity, repelling and pushing them apart, conflict is
inevitable. All that can be done is to create and cultivate as strong
habits, customs and laws as possible to stand against the power of
instinct and emotion in time of need, and to remove the main inciting
causes so far as man has the intelligence and power to remove them. It
is evident that this can never be complete. There are too many weak
machines, too many defective nervous systems, too many badly organized
brains. Accidents are inevitable, and some accidents are called
"crimes." When the accident is international or world-wide, it means
war. Those who believe that there is any power to stop all the harmful
manifestations of man's instincts, either individually or _en masse_, do
not understand the fundamental nature of man.
Many and probably all instincts work both for good and ill. Flight,
pugnacity, repulsion, sex--all are life-preserving or life-destroying,
as the case may be. A certain degree of excitation brings life and
pleasure. A stronger or weaker may bring calamity and death. The
parental instinct, with the instinct of reproduction, is fundamental to
life. It is the basis of tenderness and sympathy, and is likewise the
foundation of jealousy and often of hatred and pugnacity. At one time it
may mean the deepest and most abiding pleasures of life, and at another
it may bring death. Life cannot exist without it, and yet, that it may
persist, Nature seriously overloads many machines with disastrous
results. History is replete with the helplessness of reason and judgment
in dealing with these emotions. Neither when they act for good nor for
ill can reason and judgment have the slightest weight when these
instincts and emotions are stirred to the depths.
The emotion to acquire and keep property is very strong and perhaps at
the base of the deep desire for wealth. This emotion is probably of a
comparatively late growth, but today it seems to have taken its place as
one of the strongest that move men. This emotion, like all others,
prompts man to get what he wants. It of course does not suggest the way,
but is simply an urge to acquire and possess. It is modified and hedged
about by customs and habits but, like all instincts, its strength is
always seeking ways to accomplish results regardless of the rules laid
down and thus urging their violation. With weak machines and imperfect
systems, where not only are the restrictions imperfect, the habits not
well defined, but where it is impossible to satisfy the instinct under
the rules laid down, there can be but one result; a large number will
take property wherever and however they can get it.
The instinct for acquisition is so strong that men are constantly
contriving new and improved methods for getting property. Often the new
methods come under restraint of the law. The enactment of the law does
not give man the feeling that a thing is wrong which before was right
and many continue their ways of getting property, regardless of the law.
The instinct is too strong, the needs too great, and the barriers too
weak.
Instincts are primal to man. He has inherited them from the animal
world. Their strength and weakness depend on the make-up of the machine.
Some are very strong and some abnormally weak, and there are no two
machines that emphasize or repress the same instincts to the same
degree. One need but look at his family and neighbors to see the various
manifestations of these instincts. Some are quarrelsome and combative
and will fight on the slightest provocation. Others are distinctively
social; the gregarious instinct is pronounced in many people. These are
always seen in company and cannot be alone. They readily adapt
themselves to any sort of associations. Others are solitary. They choose
to be alone. They shrink from and avoid the society of others. In some
the instinct at the basis of sex association is over-strong; they like
children; they are generally sympathetic and emotional, and the strength
of the instinct often leads them to excesses. Others are entirely
lacking in this instinct; they neither care for children nor want them;
they habitually avoid association with the other sex. The difference is
constituent in the elements that make up the machine.
Everyone is familiar with the varying strength and weakness of the
instincts of getting and hoarding as shown by his neighbors and
acquaintances. Some seem to have no ambition or thought for getting or
keeping money. Some can get it but cannot keep it. Some have in them
from childhood the instinct for getting the better of every trade; for
hoarding what they get, and accumulating property all their lives. In
this, as in all other respects, no two individuals are alike. History is
filled with examples of men who had the instinctive power of getting
money combined with the instinct for keeping it. Their names are
familiar, all the way from Midas and Croesus down to the prominent
captains of industry today. It is common for them and their adherents
who criticise new schemes of social organization to remark with the
greatest assurance that before wealth can be equal, brains must be
equal. The truth is that brains have little to do with either the making
or accumulating of money. This depends mainly, like all other
activities, on the strength or weakness of the instincts involved. One's
brain capacity cannot be measured by his bank account, any more than by
the strength of his body or the color of his hair. His bank account
simply shows his innate tendencies. There is no doubt that brain
capacity as well as physical perfection adds to power, but it is the
instinct that determines the tendency and strength of the activity.
To say that the one who gets money the most easily and keeps it the most
safely has the best brain is no more reasonable than to say that the
foxhound is more intelligent than the bull-dog because it can run
faster. Nature formed one for running and the other for holding on. The
brain power is not involved.
There are manifold ways of gratifying all these instincts. The desire
for property calls simply for getting it and keeping it. It does not
involve the method to be used. The way is determined by other faculties,
by education, by opportunities, by the strength and weakness of
inhibitions. It does not follow that all legal ways are morally right
and all illegal ones morally wrong. Society in its development has
established certain ways in which it may be done. These ways are easy
for some, they are hard for others, and for many quite impossible.
Still the instinct for getting is always present, leading and urging to
acquire and to keep. Endless are the ways that men have contrived to
gratify this instinct. If, perchance, a law stands in the way, means are
always sought to get around the law. Every desire is always seeking its
own gratification or satisfaction. This means life. Most men believe
that the way they adopt for getting money or gratifying other instincts
is really no worse than some other person's way. The man who uses the
confidence game contends with great assurance that his methods are like
other business methods; that all men are using every means to get the
largest return for the least effort, and one way is no better than
another. A considerable portion of society has always supported him in
these ideas. The law is full of shadowy lines which divide legal
acquisition from the illegal, some of which are so fine that no one can
see more than a technical difference. For instance, under an indictment
for obtaining money by false pretenses, one may make all sorts of
statements as to the quality, value, style and desirability of the
article sold, if he does not make a specific statement of a fact
regarding the material contained in them or the amount, number, quality
or the like. He may lie, but to be safe he must know the kind of lie the
law permits. Many lies pass as "puffing goods" and are within the pale.
A trader is not expected to tell the truth. What he can and cannot say
may be determined only by a careful examination of the law, and not
always then.
Infinite are the reasons men give for doing the things that their
instincts bid them do. All depends upon the strength of the instinct and
the character of the machine; the restrictions and habits formed; and
many other factors of which the man knows nothing. In fact, all depends
upon his endowment and the outside forces that move to action, and for
none of these is he in any way to be praised or blamed.
Society seems to be almost oblivious to the emotional life of man. The
great masses of men have no capacity or chance to prepare a proper
environment in the intense commercialism and mad rush of today. The laws
of trade and commerce give most men food, clothing and shelter but
nothing more. There is no beauty in their homes or surroundings; no
music or art; no adventure or speculation. Existence is a dead thing, a
dreary round. To many such people crime furnishes the only chance for
adventure. Take away emotions and life is hopelessly dull and
commonplace. The emotions of men must be fed just as the body must be
fed. To many religion has furnished this emotional life. Churches have
provided some art and some music. But aside from the Catholic Church
almost none of this is for the poor. To many if not most people religion
cannot take the place of joy. Dogma and creed deaden and cannot appeal
to the reason of man. Still they have furnished a large part of the
emotional life to great masses of men, without which existence would
hold no hope or joy. But this is not enough to fill most lives. The
element of joy is largely lacking. To many it makes no appeal, although
music and art and beauty do. In no country has society so utterly
neglected and ignored the emotional side of man as in America. This has
led many men to a life of adventure that for them has been possible only
in crime. Many others found this life in the saloon, mixed with
influences not conducive to a normal life. The closing of the saloons
has added to the already serious need of providing for the innate
feelings of men. This is all the more important for America, as a large
part of our population has come from lands where beauty and art and
music have for generations been made a part of the common life of all.
VII
THE CRIMINAL
Those who have had no experience in the courts and no knowledge of what
is known as the "criminal class" have a general idea that a criminal is
not like other men. The people they know are law-abiding, conventional
believers in the State and the Church and all social customs and
relations; they have strict ideas of property rights, and regard the law
as sacred. True they have no more acquaintance with law-makers and
politicians in general than with the criminal class, which, of course,
is one reason why they have such unbounded confidence in the law. Such
persons are surprised and shocked when some member of the family or some
friend is entangled in the courts, and generally regard it as a
catastrophe that has come upon him by accident or a terrible mistake. As
a rule, they do all in their power to help him whether he is acquitted
or convicted. They never think that he and everyone else they know is
not materially different from the ordinary criminal. As a matter of
fact, the potential criminal is in every man, and no one was ever so
abandoned that some friend would not plead for him, or that some one who
knew him would not testify to his good deeds.
The criminal is not hard to understand. He is one who, from inherited
defects or from great misfortune or especially hard circumstances, is
not able to make the necessary adjustments to fit him to his
environment. Seldom is he a man of average intelligence, unless he
belongs to a certain class that will be discussed later. Almost always
he is below the normal of intelligence and in perhaps half of the cases
very much below. Nearly always he is a person of practically no
education and no property. One who has given attention to the subject of
crime knows exactly where the criminal comes from and how he will
develop. The crimes of violence and murder, and the lesser crimes
against property, practically all come from those who have been reared
in the poor and congested districts of cities and large villages. The
robbers, burglars, pickpockets and thieves are from these surroundings.
In a broad sense, some criminals are born and some are made. Nearly all
of them are both born and made. This does not mean that criminality can
be inherited, or even that there is a criminal type. It means that with
certain physical and mental imperfections and with certain environment
the criminal will be the result.
Seldom does one begin a criminal life as a full-grown man. The origin
of the typical criminal is an imperfect child, suffering from some
defect. Usually he was born with a weak intellect, or an unstable
nervous system. He comes from poor parents. Often one or both of these
died or met misfortune while he was young. He comes from the crowded
part of a poor district. He has had little chance to go to school and
could not have been a scholar, no matter how regularly he attended
school. Some useful things he could have learned had society furnished
the right teachers, surroundings and opportunities to make the most of
an imperfect child. Early in life he does some desultory work in casual
occupations. This of course is not steady, but he picks up what he can
and keeps the job for a short time, sometimes quitting work because he
is discharged and sometimes because, like most boys and men, he does not
like to work. His playground is the street, the railroad yards or vacant
lots too small for real play, and fit only for a loafing place for boys
like himself. These gather nightly and talk of the incidents that
interest most people, mainly the abnormal things of life and generally
the crimes that the newspapers make so prominent to satisfy the public
demand. He learns to go into vacant buildings, steals the plumbing, and
he early learns where to sell it. From this it is only a short step to
visiting occupied buildings at night. In this way he learns to be a
burglar as other boys learn to play baseball or golf.
Naturally he has no strong sense of property rights. He has always had a
hard time to get enough to eat and wear, and he has grown up
unconsciously to see the inequality of distribution and to believe that
it is not fair and that there is little or no justice in the world. As a
child he learned to get things the best way he could, and to think
nothing about it. In short, his life, like all other lives, moves along
the lines of least resistance. He soon comes to feel that the police are
his natural enemies and his chief business is to keep from getting
caught. Inevitably he is brought into the Juvenile Court. He may be
reprimanded at first. He comes again and is placed on probation. The
next time he goes to a Juvenile Prison where he can learn all the things
he has not found out before. He is known to the police, known to the
Court, known to the neighbors. His status is fixed. When released from
prison, he takes his old heredity back into his old environment. It is
the easiest to him, for he has learned to make his adjustments to this
environment. From fifteen to twenty-five years of age, he has the added
burden of adolescence, the trying time in a boy's life when sex feelings
are developing, when he is passing from childhood to manhood. This is a
very difficult time at best to the type of boy from which a criminal
grows; he meets it without preparation or instruction. What he knows he
learns from others like himself. He gets weird, fantastic, neurotic
ideas, which only add to his natural wonderment.
Every person who has not inherited property must live by some trade or
calling. Very few people in jail or out choose their profession. Even if
one selects his profession it does not follow that he has chosen the
calling for which he is best adapted. So far as a person can and does
follow his desires, he generally means to choose the calling which will
bring him the greatest amount of return for the least exertion. He may
have strong inclinations in certain directions, as, for instance, to
paint or to write or to investigate or to philosophize, but, as a rule,
he does not make his living from following these ambitions. If he does,
it is generally a poor living. But usually his aim is to make money at
something else so that he can give free rein to his real ambitions.
Most men start to make a living as boys from the ages of fifteen to
eighteen. They have no idea of what they ought to do or even of what
they want to do. Usually, so far as they have an ambition, it is to do
something more or less spectacular that seems to have an element of
adventure and not too disagreeable or hard; something like the work of
a policeman, a chauffeur, or an employee in a garage. Still, first and
last, most boys and most men have no opportunity for choosing an
occupation. In fact, the boy is told that he is a man and must get a job
long before he knows that he is a man or begins to feel
responsibilities, while he still has all the emotions and dreams of a
boy.
When he is told he must go to work he looks for a job. He does not wait
until he can find the one that fits him. He cannot afford to wait and if
he could, he does not know what job would fit. He takes automatically
the first place he can get, hoping to find a better one, which generally
means an easier one, before very long. It is hard for a boy to stick to
work; too many things are calling him away. Every instinct and emotion
is urging him to play. New feelings and desires are coaxing him from
work. His companions and the boy life in which he has a place urge him
to leave his task. Usually he keeps his job no longer than he can help
and later looks for something else. The chances are great that he will
never find what he wants; that he has not had the preparation or
training for a successful workingman's career, whatever that might be.
He is a doer of odd jobs and of poorly paid work all his life.
He must have some calling and takes the easiest one, which is often a
life of crime. From this start comes the professional criminal
so-called. He may make a business of picking pockets. If this comes to
be his trade it is very hard for him to give it up. There is so strong
an element of chance--he never knows what a pocket will contain--it
gratifies a spirit of adventure. Then it is easy. The wages are much
greater than he could get in any other calling; the hours are short and
it never interferes with his amusements. It is not so dangerous as being
a burglar or a switchman, for he can find an excuse for jostling one in
the street-cars or in a crowd and thus reaching into a pocket.
The burglar is not so apt to be a professional; his is a bolder and more
hazardous trade; if he is caught he is taken from his occupation for a
longer time. The great hazard involved in this trade and also the
physical strength and fitness of those who follow it lead to its
abandonment more frequently than is the case with a pickpocket or a
petty thief. Robbery is seldom a profession. It is usually the crime of
the young and venturesome and almost surely leads to early disaster.
Murder, of course, is never a profession. In a broad way it is the
result of accident or passion, or of relations which are too hard to
endure.
In prison and out, I have talked with scores of these men and boys. I am
sure they rarely tried to deceive me. I have very seldom seen one who
felt that he had done wrong, or had any thought of what the world calls
reformation. A very few have used the current language of those who
talk of reform, but generally they were the weakest and most hopeless of
the lot and usually adopted this attitude to deceive. In almost every
instance where you meet any sign of intelligence, excuses and
explanations are freely made, and these explanations fully justify their
points of view. Often too they tell you in sincerity that they believe
their way of life is too hard and does not pay; that while they cannot
see how they could have done any differently in the past, they believe
their experience has taught them to stick by the rules of the game.
The boy delinquent grows naturally and almost inevitably into the man
criminal. He has generally never learned a trade. No habits have been
formed in his youth to keep him from crime. A life of crime is the only
one open to him, and for this life he has had ample experience,
inclination and opportunity. Then too for this kind of young man the
life of a criminal has a strong appeal. Life without opportunity and
without a gambler's chance to win a considerable prize is not attractive
to anyone. The conventional man who devotes his life to business or to a
profession always has before him the prizes of success--to some honor
and glory, and to most of them wealth. Imagine the number of lawyers,
doctors and business men who could stick to a narrow path if they knew
that life offered no opportunity but drudgery and poverty! Nearly all
of these look forward to the prizes of success. Most of them expect
success and many get it. For the man that I have described, a life of
toil offers no chance of success. His capacity, education and
environment deny him the gambler's chance of a prize. As an honest man,
he may raise a family, always be in debt, live a life of poverty and
hardship and see nothing ahead but drudgery and defeat. This is why so
many mediocre men are found in the mountains and oil fields prospecting
for hidden wealth. With the chance of a fortune just before them, and no
other opportunity to win, they spend their lives without a family or
home, urged on by the hope of luck.
The man grown from boyhood into ways of vice and crime sees this hope
and this hope only to make a strike. He has no strong convictions and no
well-settled habits to hold him back. The fear of the law only means
greater caution, and after all he has nothing to lose. In his world
arrest and conviction do not mean loss of caste; they mean only bad
luck. With large numbers of men crime becomes a trade. It grows to be a
business as naturally as any other calling comes to be a trade.
There are other criminals who do not come from the class I have
described, but the habitual visitor to criminal courts knows that they
are very few. Of the others, some are born of parents who could care
for them and have done their best and yet, in spite of this, they have
repeatedly been entangled in the law; these are often the only ones of a
large family who have not lived according to the rules of the game. They
are different from the other members of the family. For the most part
they have some specific congenital defect, or an unstable system that
prevents the correct registration of the experiences that produce safe
habits, or makes them unable to withstand temptation or suggestion.
Everyone knows how easy it is, especially for children, to react to
suggestion. The whole life of a child is a response to suggestion. This
is about all there is to education. Even older men constantly and
readily yield to suggestion. The results gained by quack doctors,
lightning-rod agents, promoters and dealers in oil stocks, mining stocks
and an endless number of other stocks, show that the right kind of
suggestion is bound to produce results. The dressing of the windows of
department stores and the writing of catchy advertisements are a
constant recognition of the power of suggestion. So well known is this
weakness of human character that schools of salesmanship are regularly
organized and promoted to teach the art of getting victims to part with
money for things they do not want or need.
Every right-feeling person does everything in his power to educate the
child. He is ever watchful through the child's youth and early manhood
to equip him with the capacity to make a living. He seeks to build up
around him and within him the strongest kind of habits and beliefs. He
carefully teaches the child that the only way to live is to observe all
the rules laid down by experience and custom, so that he may not react
to the temptations that life holds out at every step. Every wise person
feels almost certain that if his children are reared without education,
without discipline, without training or opportunities, they will almost
inevitably swell the ranks of the criminal classes. And it is especially
certain that if one of his children is defective or has an unstable
nervous system, such a child should never be left without protection and
care.
There are professional criminals of a different grade, like the forger
and the confidence man. Both of these have generally had some education
and a fair degree of intelligence, and have had some advantages in life.
The forger, as a rule, is a bookkeeper or an accountant who grows expert
with the pen. He works for a small salary and sees nothing better. He
grows familiar with signatures. Sometimes he is a clerk in a bank and
has the opportunity to study signatures; he begins to imitate them,
often with no thought of forging paper. He does it because it is an art
and probably the only thing he can do well. Perhaps some hard luck or an
unfortunate venture on the Board of Trade, or in a faro bank, makes him
write a check or note. He easily convinces himself that he is not
getting the salary he earns and that less worthy men prosper while he is
poor. Then too his business calls for better clothes and better
surroundings than those of the workingman, and gives him many glimpses
of easy lives. For a time he may escape. If the amount is not too large
it is often passed by without an effort to detect. Sometimes it escapes
notice altogether. Some business men write so many checks that they take
no pains at the end of the month to figure up their account and examine
every check, and never notice it unless the balance given by the bank is
so far out of the way that it attracts attention. After a forger grows
to be an expert, he can move from town to town. If he is taken and put
in prison and finally released, he is hard to cure. Forgery is too easy
and he knows of no other trade so good. A large percentage of these men
never would have forged, had their wages been higher. Many others are
the victims of the get-rich-quick disease; they haunt the gambling
houses, brokers' offices and the like. Often when they begin they expect
to make the check good; generally, they would have made good if the
right card had only turned up in the faro bank, or the right quotation
on the stock exchange.
There is another class of forgers, generally bankers, who speculate with
trust funds. To cover up the shortage they sign notes expecting that
they will never be presented and will deceive no one but the bank
examiner. If luck goes against them too long, the bank fails and the
forgery is discovered. These are really not forgers, as they never
intend to get money on the note. It is only a part of a means to cover
up the use of trust funds. Of course, these men are never professional
forgers, and are much more apt to die from suicide or a broken heart
than to repeat.
But with few exceptions, the criminal comes from the walks of the poor
and has no education or next to none. For this society is much to blame.
Sometimes he is obliged to go to work too soon, but often he cannot
learn at school. This is not entirely the fault of the boy's heredity;
it is largely the fault of the school. A certain course of study has
been laid out. With only slight changes this course has come down from
the past and is fixed and formal. Much of it might be of value to a
professional man, but most of it is of no value to the man in other
walks of life. Because a boy cannot learn arithmetic, grammar or
geography, or not even learn to read and write, it does not follow that
he cannot learn at all. He may possibly have marked mechanical ability;
he may have more than the ordinary powers of adaptation to many kinds of
work. These he could be taught to do and often to do well. Under proper
instruction he might become greatly interested in some kind of work, and
in the study to prepare him for the work. Then too it is more or less
misleading to say that an uneducated man commits crime because he is
uneducated. Often his lack of education as well as his crime comes from
poverty. Crime and poverty may come from something else. All come
because he had a poor make-up or an insufficient chance.
After all, the great majority of men must do some kind of manual labor.
Until the time shall come when this kind of work is as easy and as well
paid as other employment, no one will do manual labor if he can do any
other kind. Perhaps the time may come when the hardest and most
disagreeable work will be the best paid. There are too many unskilled
workers in proportion to the population to make this seem very near. In
the meantime--and that is doubtless a long time--some one must do this
work. Much of it is done under supervision and requires no great skill
and need not be very disagreeable or hard. In a complex civilization
there is room for everyone to contribute to the whole. If our schools
are some day what they should be, a large part of their time, in some
cases all of it, will be devoted to manual training and will be given to
producing skilled workmen. This sort of school work can be made
attractive to thousands of boys who can do nothing else. And if easier
conditions of life under fairer social surroundings could be added to
this kind of education, most boys who now drift into crime would
doubtless find the conventional life more profitable and attractive.
VIII
THE FEMALE CRIMINAL
Women furnish only one-fifth to one-tenth of the population of penal
institutions. Probably the percentage would be still lower if among
these were not a number of rather common convictions for acts which are
peculiar to women, like abortion, infanticide, child abandonment and the
like. As to the other crimes, few women are burglars or robbers, or
guilty of other crimes of violence, except murder. Women steal and
poison and blackmail and extort money and lie and slander and gossip,
and probably cause as much unhappiness as men; but their crimes, like
their lives, are not on so large or adventurous a scale. They do not so
readily take a chance; they lack the imagination that makes big
criminals or lays broad schemes. In many of their crimes they are often
the accomplices of men and take rather a minor part, although sometimes
a quite important one. For this reason they are often not detected and
frequently not prosecuted, a fact which leaves the percentage smaller
than it otherwise would be. Then too, juries are apt to acquit women of
crime even when they are indicted and tried. It must be a positive case
and one which calls for no possible feeling of sympathy or where there
is no personal appeal that will work the conviction of a woman. Men have
so long adopted an attitude of chivalry toward women that very few
juries will convict them. This too has much to do with the small number
of female convicts.
Some writers claim that the small number of women in penal institutions
shows that women are better than men; but this is a hasty conclusion
arrived at from insufficient facts. There are fewer female prisoners
because women have lived a more protected life; they have not been
engaged so generally in business; they have not been so constantly
obliged to fight their way in the world; their lives have been more
quiet and smooth; they have been surrounded by strong conventions and
closely watched. Especially is this true with regard to the girl as
compared with the boy. Such protection naturally keeps them from the
commission of crime. The great consideration shown to them by
prosecuting witnesses, prosecuting officers, judges and juries,
supplements the protected life and is an added reason for the showing
made by statistics. It is notorious that a woman is seldom convicted of
murder. This has been the subject of much complaint on the part of the
public; still a man may condemn such acquittals and when placed on a
jury will himself vote for acquittal.
After all, the juries are right. Most of the cases of murder against
women involve sex relations. Nature has made the bearing and rearing of
children first of all the woman's part, and this fact so dominates her
life that nothing else seems important to her in comparison. She is not
able to judge in a broad and scientific way matters so clearly affecting
life. It may even be possible that in the evolution and preservation of
life, her judgments are right. At least they are the natural judgments
for a large number of women, or these tragedies would not occur. No
doubt as woman enters the field of industry formerly monopolized by man,
and as she takes her part in politics and sits on juries, the percentage
of female criminals will rapidly increase. In fact, the percentage of
women prisoners has been climbing for many years. As she takes her place
with men she will be more and more judged as men are judged, and will
commit the crimes that men commit, and perhaps furnish her fair quota to
the penitentiaries and jails.
Whether this will be better or worse for the race is no part of the
discussion, and can only be told by long experience. Women must accept
the facts and make their choice of activities in view of these facts.
Quite apart from any sentiment, I think that it is a mistake to believe
that men and women should be judged alike. The structure and nervous
system of women cause physical and mental disturbances which affect
their judgment and life. If there were any justice in human judgment and
civilization, then each human being would be judged according to his
make-up, his tendencies, his inclinations and his capacities, and no two
would be judged alike.
Any sudden change in the treatment of women in the courts will work a
great injustice that will leave its effect on both women and men, and
still more on the life of the race.
IX
JUVENILE CRIMINALS
This subject would scarcely have been noted a few years ago. True, there
was in the past a small mixture of children in the grist ground out in
the criminal courts. Usually they received some leniency, and were
viewed with more curiosity than alarm. The juvenile criminal was
regarded as a prodigy with a capacity for crimes far beyond his years.
Something of the attitude obtained in regard to him which attaches to
the child chess player or the child mathematician. The child criminal is
now common, and for the most part is a product of the city.
All crime is doubtless much more common in the city than the country,
and the young criminal especially is a product of the crowded community.
To those who look for natural causes for all phenomena the reason is not
far to seek. The city itself is an abnormal thing. Primitive man and his
ancestors were never huddled together in great multitudes, as are the
dwellers in cities today. To a degree almost all animals are gregarious,
but the units of organization are much smaller with them than with man,
excepting possibly in the case of the ant and the bee, insects which
seem specially adapted to live a highly automatic and cooperative life,
such as human beings cannot possibly reach. But primitive men and their
direct ancestors lived in small groups. They could not have preserved
their life in any other way. They lived by fishing and hunting and by
gathering roots, berries and herbs. Later they tended their flocks and
cultivated the fields in a simple way.
With the introduction of the modern machine, the factory system and the
railroads, in the last century, our great modern cities were evolved. As
they grew more complicated, new problems arose. The life of the crowded
city is most difficult even for normal men and women. The adjustments
are too numerous and too complex for an animal made with simple tastes
and for a pastoral life. But, if it is hard for men, it is almost
hopeless for children, especially the children of the poor who fill our
prisons, asylums and almshouses.
Every child needs the open air and the open life of the country. He
needs, first of all, exercise which should be in the form of outdoor
play. No healthy boy wants to live indoors, even though his home may be
a convenient city "flat." The woods, the fields, the streams, the lakes,
the wide common with plenty of room, have always made their natural
appeal to the young. And as sunlight kills most of the deadly germs, so
outdoor life with exercise and play takes care of most of the unhealthy
thoughts, habits and ideas of child-life. In the past, our schools both
in the city and country have done little to help the young. For the most
part healthy children have always looked on them more or less as
prisons. Here they have been confined and kept from exercise and play,
to study useless and unrelated facts and to commit to memory dry rules
which are forgotten as soon as their minds are ready to retain anything
worth while.
Schools should be made to fit the needs of children, and not children to
fit schools. The school that does not provide work and play for the
child which he is glad to do, has learned little of the psychology and
needs of youth. Botany, Zoölogy, Geology and even Chemistry can be
taught to children before they learn to read, and taught so that it will
seem like play, and through this the pupil will acquire a natural taste
for books. It is only within the last few years that the modern school
has really begun to educate the child. It has been a hard fight that
scientific teachers have waged with conventional education for the right
of the child. What has been done is too recent and scattering to show
material results.
Nothing is so important to the child as education. The early life is the
time that character is formed, habits are made, rules of conduct
taught, and it is almost impossible to up-root old habits and
inhibitions and implant new ones in later years.
It is true that "the child is father to the man," and he is the father
of the criminal as well as the useful citizen. Outside of the hopelessly
defective, or those who have very imperfect nervous or physical systems,
there is no reason why a child who has had proper mental and physical
training and any fair opportunity in life should ever be a criminal.
Even most of the mentally defective and those suffering from imperfect
nervous systems could be useful to society in a sheltered environment.
Poor as the country schools have always been, the outdoor life of the
country child is still so great an influence that he generally escapes
disaster. He is not sent to a factory, but lives in a small community
where he has fresh air and exercise.
Of course here as everywhere we must allow for the defective, the
imperfect, the subnormals and the children of the very poor. These
unfortunates furnish a large percentage of the inmates of prison, and
most of the victims for the scaffold which civilization so fondly
preserves.
The growth of the big cities has produced the child criminal. He is
clearly marked and well defined. He is often subnormal even down to
idiocy. In most cases he is the result of heredity. Many times he may
have fair intelligence, but this is usually attached to an unstable,
defective nervous system that cannot do its proper work, and he has had
no expert treatment and attention. He is always poor. Generally he has
lost one or both parents in youth and has lived in the crowded districts
where the home was congested. He has no adequate playground and he runs
the streets or vacant, waste places. He associates and combines with
others of his kind. He cannot or does not go to school. If he goes to
school, he dreads to go and cannot learn the lessons in the books. He
likes to loaf, just as all children like to play. He is often set to
work. He has no trade and little capacity for skilled work that brings
good wages and steady employment. He works no more than he needs to
work. Every night and all the days that he can get are spent in idleness
on the street with his "gang." He seldom reads books. He lacks the taste
for books, and such teachers as he knew had not the wit to cultivate a
taste for good reading. Such books as he gets only add to his unhealthy
thoughts.
Many writers have classified the crimes that the boy commits. It is
scarcely worth the while. He learns to steal or becomes a burglar
largely for the love of adventure; he robs because it is exciting and
may bring large returns. In his excursions to pilfer property he may
kill, and then for the first time the State discovers that there is
such a boy and sets in action the machinery to take his life. The city
quite probably has given him a casual notice by arresting him a number
of times and sending him to a juvenile prison, but it has rarely
extended a hand to help him. Any man or woman who has fairly normal
faculties, and can reason from cause to effect, knows that the crimes of
children are really the crimes of the State and society which by neglect
and active participation have made him what he is. When it is remembered
that the man is the child grown up, it is equally easy to understand the
adult prisoner.
X
HOMICIDE
Crimes against persons are not always as easy to classify and understand
as crimes against property. These acts are so numerous and come from so
many different emotions and motives, that often the cause is obscure and
the explanation not easy to find. Still here, as everywhere in Nature,
nothing can happen without a cause, and even where limited knowledge
does its best and cannot find causes, our recognition of the connection
between cause and effect and the all-inclusiveness of law can leave no
doubt that complete knowledge would bring complete understanding.
It is always to be borne in mind in considering this class of crimes
that the motive power of life is not reason but instinct. If men lived
by reason the race would not survive. The primal things that preserve
the race, the hunger for food, drink, sex, are instinctive and not only
are not awakened or satisfied by reason, but oftentimes in violation of
it. Nature, first of all, sees to the preservation of the species, and
acts in a broad way that life may not perish. Nature knows nothing about
right and wrong in the sense in which man uses these words. All of our
moral conceptions are purely of social origin and hence not instinctive
in human life, and are forever giving way to the instincts on which
Nature depends. The preservation of life has called for the emotions of
hate, fear and love, among the other emotions that move men. The animal
fears danger and runs away, and thus life is preserved. The weaker
animal is almost entirely dependent for life upon his fear. He is
sometimes afraid when there is no danger, but without fear he would be
destroyed. Sometimes the animal hates and kills and thus preserves
himself. The love of offspring is the cause of the care bestowed upon it
which preserves its life. The herd instinct in animal species develops
packs and clans and tribes and states. Man is the heir to all the past,
and the instincts and emotions of the primitive animal are strong in his
being. These may have been strengthened or diluted as the ages have come
and gone, but the same instincts furnish the motive power for all his
acts. Man fears and hates, and runs or kills and saves his life. He
loves, and preserves his offspring.
Man sees an object. Instinctively he may fear it or he may hate it. He
may run from it or destroy it. He gathers impressions through his
senses. The nerves carry them to the brain. He comes to fear certain
persons and things, to hate certain other persons or things, and to
love still others. If the hatred is strong enough or the danger great
enough or the desire sufficient, he may kill. Whether he plans the
method or deliberates upon the act can make no difference. He is
prompted by the instinct, and the reflection simply means the
consideration of reasons for and against, or the reaching of
inhibitions. If he acts, it is one of the primal emotions that causes
the act. He is the "machine" through which certain emotions find their
path and do their work. Infinite are the causes and circumstances that
give rise to an emotion strong enough to take human life.
Killings which result from a sudden passion are easily understood.
Everyone has been overwhelmed by rage, where reason and judgment and all
acquired restraints are entirely submerged. The primitive man with his
primitive emotion reasserts himself. It is mainly accident or the lack
of some particular circumstance that prevents a murder. Of course some
people are overwhelmed more easily than others. Some natures are less
stable, some nervous systems less perfect, and the built up barriers are
weaker. The whole result of stimuli is determined by the strength of the
feeling acting upon the machine. Such a person is not ordinarily
dangerous to the community. The act itself would generally assure that
it could never happen again. Some killings, however, are more
deliberate. They are preceded by a settled hatred which preys upon the
mind and fights against the preventive influences that training and
habit have formed. Under a certain combination of circumstances these
restrictions are swept aside and the emotions have their way.
There are, of course, certain broad classifications of homicides. A
considerable number, perhaps more than any other, come through the
commission of robbery, burglary and larceny. In the midst of the act the
offender is caught, and kills in an effort to escape. These murders fall
under the heading of property crimes; the cause is the same, and the
rules governing them are the same. The second group, with respect to
numbers, grows from the relations of men and women. Wives kill husbands
and husbands kill wives; sweethearts kill each other. Jealousy and
revenge are commonly mixed with sex life and sex association. Many
socialists have argued that under an equal distribution of property,
where women were freed from fear of want, these crimes would disappear.
But this argument does not take human nature into account. Jealousy is
inevitably associated with sex relations. The close contact of men and
women over long periods of time inevitably causes friction and
misunderstanding. These conditions often grow chronic, and in marriage
are aggravated by the necessity of close association regardless of the
real feelings that may exist. Certain claims are made by husbands and
by wives, which are probably inherent in the relationship; sometimes
they flow from habit and custom, but, from whatever cause, such claims
are so exacting that either the husband or wife finds them hard to meet.
Because of the fact that the feelings of men and women for each other
are deeper and more fundamental than those of any other relation, they
are more subject to misfortune and tragedy. The hatreds born from the
deepest affection are most beyond control. Then the desire of possession
is overwhelming. It would be strange if more killings did not result
from the relations of men and women than from any other cause. It is
easy to understand why this is true. It is likewise easy to understand
how laws, reason and judgment are powerless to prevent. Juries seem to
understand this when women kill husbands and lovers, but a
long-established code of chivalry and a cultivated attitude toward
women, which is partly right and partly wrong, make it impossible to see
that men are just as helpless under strong feelings as women. No doubt a
public opinion that would favor divorces on a greater number of grounds
and make them easily obtainable would prevent large numbers of such
killings, but the cause can not be altogether removed.
The law has long singled out killing as the greatest crime, doubtless
because man prizes life first of all. Of course every effort should be
made to protect life. Still, in measuring the character of the offender,
in determining his possibilities as a useful citizen, homicide is
probably one of the lesser crimes. Many times it implies no moral
turpitude, even with those who believe in moral turpitude. It may imply
very little lack of physical stability. Homicide practically never
becomes an occupation. Most killings are accidental in the sense that
they are casual and dependent on circumstances, and there is as a rule
much less danger of repetition than there is of the original commission
of a homicide by one of a defective nervous system who has never before
committed an unlawful act. A large number of men convicted of murder are
used as "trusties" in our penal institutions, even when their
imprisonment is for a long term, or for life. This shows from the
experience of prison officials that this class of offenders is, as a
rule, of a better fibre than almost any other class.
Doubtless no sort of treatment will ever entirely get rid of homicide.
Brains and nervous systems are so made, that inhibitions are unable to
protect in all cases. Nations and men readily engage in killing, either
from sport or because of a real or fancied wrong. Mob psychology shows
how whole communities are turned into ravenous beasts, hunting for
their prey. The world war, and all wars, show cases of mob psychology
that have led large masses of men to take an active part in killing. The
pursuit of those charged with crime shows that all people like the chase
when the emotions are thoroughly aroused. Under certain impulses,
communities gloat over hangings and commend judges and juries because
they have the courage to hang, when, in fact, they were too cowardly not
to hang and when their reason did not approve the verdict and judgment.
Men who do not kill often wish others might die and are pleased and
happy when they do die. We approve of death when it is the right one who
dies. Whether all persons are murderers or not may depend upon a
definition of murder. But, beyond doubt, all persons are potential
murderers, needing only time and circumstances, and a sufficiently
overwhelming emotion that will triumph over the weak restraints that
education and habit have built up, to control the powerful surging
instincts and feelings that Nature has laid at the foundation of life.
XI
SEX CRIMES
Most of the inmates of prisons convicted of sex crimes are the poor and
wretched and the plainly defective. Nature, in her determination to
preserve the species, has planted sex hunger very deep in the
constitution of man. The fact that it is necessary for the preservation
of life, and that Nature is always eliminating those whose sex hunger is
not strong enough to preserve the race, has overweighted man and perhaps
all animal life with this hunger. At least it has endowed many men with
instincts too powerful for the conventions and the laws that hedge him
about.
Rape is almost always the crime of the poor, the hardworking, the
uneducated and the abnormal. In the man of this type sex hunger is
strong; he has little money, generally no family; he is poorly fed and
clothed and possesses few if any attractions. He may be a sailor away
from women and their society for months, or in some other remote
occupation making his means of gratifying this hunger just as
impossible. There is no opportunity for him except the one he adopts. It
is a question of gratifying this deep and primal instinct as against
the weakness of his mentality and the few barriers that a meagre
education and picked-up habits can furnish; and when the instinct
overbalances he is lost.
Incest, which is peculiarly the crime of the weak, the wretched and the
poor, has a somewhat different origin. Westermarck in his "_History of
Human Marriage_" shows that in the early tribe there was no inhibition
against the marriage of blood relations; that the restriction then was
against the members of the tribe that used one tent; these might or
might not be blood relations. The traditions and folk-ways against the
marriage of close relations grew from the familiarity that came from the
living together of brother and sister, for instance, in one home. This
feeling gradually worked itself into custom and habit and from that into
folk-ways and laws. Sometimes we read accounts of the marriage of a man
and woman who found, after years had gone by, that they were brother and
sister who had been separated in infancy and grew up without knowledge
of their relation to each other. Whether Nature forbids the marriage of
relatives by preventing offspring or by producing imperfect offspring is
a doubtful question. Certain communities in Europe have lived together
so long that all are related and still they seem to thrive. Considering
the general custom and feeling on the subject, however, the man and
woman who know that they are closely related and who marry are different
and weaker than the others; and this may show in their offspring.
Although the subnormal may have no such feeling, they are judged by the
traditions and customs of the normal and on that judgment are sent to
prison.
Many sex crimes are charged to children in the adolescent age; children
who have no knowledge of sex and its development and are helpless in the
strength of their newly-discovered feelings. This class of offenders is
almost always the inferior and the poor who are moved by strong
instincts which they have not the natural feeling, the strength, the
education, nor the desire to withstand.
While most crimes against persons are not directly due to economic
causes, still the indirect effect of property is generally present in
these crimes as well as others. The fact that the poor and defective are
generally the subjects of prosecution and conviction in these offences
shows how closely economic conditions are related to all crimes.
Other criminal statutes are of more modern date, and as a rule involve
not much more than adultery, except in regard to the age of the girl
offender, which is generally placed below eighteen. Still the sex age of
neither boys nor girls can be fixed by a calendar. It depends really
upon development, which is not the same with all people or in all
environments. Many girls of sixteen are more mature and have more
experience of life than others of twenty. Most laws provide that below
sixteen one cannot give consent and that a sexual act is then rape. It
is doubtful if there should be any intermediate age between sixteen and
eighteen, where an act is not rape but still a minor offence.
XII
ROBBERY AND BURGLARY
Robbery and burglary are generally counted as crimes of violence, but
they should be properly classed under property crimes. Every motive that
leads to getting property in illegal ways applies to these crimes. There
is added to the regular causes of property crimes the element of danger
and adventure which makes a strong appeal to boys and men. I am inclined
to think that few mature men have committed one of these crimes, unless
they began criminal careers as boys. Such crimes especially appeal to
the activity and love of adventure which inhere in every boy. They are
committed for the most part by youths who have had almost no chance to
get the needed sport and physical experience incident to boyhood. The
foot-ball, base-ball, polo or golf player very seldom becomes a robber
or a burglar. Almost no rich man or rich man's son becomes a robber or a
burglar. Those who fall under this lure are mainly the denizens of the
streets, the railroad yards, the vacant lots, the casual workers who are
stimulated by a variety of conditions to get property unlawfully. Added
to this are almost invariably a defective heredity, vicious environment,
little education, and a total want of direction in the building up of
habits and inhibitions.
The robber or burglar who kills in the commission of crime is more
dangerous and harder to cure than the one who kills from passion or
malice. There is always the element of an occupation, for getting
property, and generally a love of adventure that is difficult to
overcome, except by a substantial change of social relations which makes
acquiring property easier for the class from which all these criminals
develop. The murder that comes from passion and feeling implies
situations and circumstances that are rarely strong enough to overcome
the restrictions against killing.
XIII
MAN AS A PREDATORY ANIMAL
Not less than eighty per cent of all crimes are property crimes, and it
seems probable that, of the rest, most arise from the same motives. If
we look at civilization as the result of that seesaw trend of the race
from "Naturalism to Artificialism," we may get a flexible view of life
that will be in accordance with the facts, and will help us to get rid
of the arbitrary division of man's history into the three periods termed
Savagery, Barbarism and Civilization. However desirable this division
may be for historic purposes in general, it is only confusing in an
effort to study the nature of man.
In the life and origin of the race, the fact is always evidenced that
the Ego through its growth and persistence is always drawing to itself
from the current of environment all things which it feels desirable to
its life and growth. This must be a necessary condition of survival. In
the long journey from amoeba to man, any circumstance causing a complete
halt for even a brief period meant extinction, while even a persistent
interference produced a weakened organism, if not an arrest of
development.
This then is the origin of the "Master Instinct," hunger. When we
consider the various emotions growing from the force of this vital urge,
as developed by adaptation to an ever-changing environment, we are able
to realize fully why it bulks so large in moulding and shaping the
destiny of the race.
All psychologists are agreed in classing under the nutritive instinct
such activities as acquisition, storing and hoarding. During a period
variously estimated as a quarter of a million to two million years, man
and his animal antecedents responded to the hunger instinct, in the
manner and by the same methods as did the various jungle animals. He
secured his prey by capture, or killed it wherever found, the one
condition being his power to get and to hold. Later tribal organization
arose, and food and shelter were held in common. But since the folk-ways
commended raiding and looting between alien tribes, here was presented
an alluring chance to secure both booty and glory to men trained in the
"get and hold" process of acquiring. For thousands of years life itself
depended upon this unerring exercise.
It was during the period outlined that man developed his big brain
(cerebrum) involving the central nervous system. Furthermore, it was
developed by, and trained to, these particular reactions. The
far-reaching control of the mind must be remembered, as upon this
through his racial heritage must be based his conflicting impulses.
These must be reckoned with in our conclusions with regard to
present-day behavior, economic or otherwise.
During the last thirty years, psychological laboratories, aided by
physiology, through oft-repeated experiments conducted with
newly-invented weighing and measuring instruments of marvelous accuracy,
have put us in possession of an array of facts unknown to students of
earlier periods, who sought the "why and the how" of man's erratic
actions as a social animal. It is constantly being demonstrated that
under given conditions, moved by appropriate stimuli, the human animal
inevitably and surely reacts the same as does inorganic matter. If we
understand "intelligence" to be the "capacity to respond to new
conditions," we can measurably see and at least partly understand the
constant inter-play of heredity and environment. Between these there is
no antagonism. The sum of life experiences consists solely in the
adjustments required to enable the sentient organism--man or beast--to
live.
How readily a "throw-back" to earlier and cruder life may be brought
about under favorable conditions, is shown by the methods and virulence
of combat during the vicious massacre in the war just ended. Can the
conclusion be evaded that individually and collectively we constantly
teeter on the brink of a precipice? If we fall it spells crime or
misfortune, or both.
Wherever civilization exists on the private property basis as its main
bulwark, we find crime as an inseparable result. Man, by virtue of his
organic nature, is a predatory animal. This does not mean that he is a
vicious animal. It simply means that man, in common with the eagle and
the wolf, acts in accordance with the all-impelling urge and fundamental
instincts of his organic structure. In any conflict between newer and
nobler sentiments and the emotions which function through the primeval
instincts, he is shackled to the bed-rock master instincts in such
manner that they usually win. This is conclusively shown by the history
of the race.
If this is true, we should expect to find the master hunger specially
active through the many chances presented for exploitation after the
fall of feudalism--beginning, let us assume, with the invention of power
machinery--the "Age of Steam". It is apparent that from that time to our
own day, man's acquisitive tendency has so expanded, that if we were
capable of an unbiased opinion it might be said to be a form of
megalomania gripping the entire white race, where highly-developed
commerce and industry are found in their most vigorous forms.
If our theory is correct, we should expect to find the most energetic
and enterprising nations showing a greater ratio of property crimes than
the invalid and feeble nations. This would more certainly be true where
political constitutions by letter and spirit encourage and promote
individual development, mental and industrial. When this condition
exists with abundant natural resources, such as often may be found in
what we term a new country, it furnishes the chance for the most
vigorous functioning of whatsoever may be the dominant qualities
inherent in the tendencies and aspirations of a people. The United
States of America, among the nations, meets these conditions, and we
find here the highest ratio of property crimes per capita. This holds as
to all such crimes, both minor and major, which are far in excess of
those of any other nation, as shown by statistics.
It seems clear that this explanation shows the main reason for the
seemingly abnormal number of property crimes in the United States.
Man's infinitely long past developed the hunger instinct, which made him
take directly and simply where he could and as he could. This is always
urging him to supply his wants in the simplest way, regardless of the
later restrictions that modern civilization has placed around the
getting of property. With the weaker intellectually and physically,
these instincts are all-controlling. The superficial and absurd theories
that his excesses are due to the lack of the certainty of punishment
take no account of the life experience, and the inherent structure of
man.
Especially in our large cities with their great opportunities for the
creation and accumulation of wealth, the "lust of power" is shown by the
nerve-racking efforts to obtain wealth by the most reckless methods. The
emotion drives us to spend extravagantly and conspicuously, that we may
inspire the envy of our neighbors by our money and power.
This is an old emotion securing a new outlet, and tenfold magnified in
force, through modern conditions in commercial and industrial life. Is
it not plain that in America it has assumed the form of an obsession,
biting us high and low, until we reek of it? It is likewise clear that
it is a menace to any abiding peace and welfare; that it is still
growing and leaving a bitter harvest of neurasthenics in its wake.
The criminologist must face the fact that, in spite of contrary
pretenses by most of our social doctors, we are still in our work-a-day
life guided almost exclusively by the mores--the folk-ways of
old--founded on expediency as revealed by experiences, and acquired by
the only known process, that of trial and error. If this be true, it
clearly follows that in order to conserve any vestige of a civilization,
we must realize the fact that property crimes are the normal results of
the complex activities making up the treadmill called civilization. We
must likewise realize that to modify these crimes we must modify the
trend of the race.
When the seamy side of man's behavior is scrutinized by science, it
cannot be other than grim and distressing to the reader. It is this to
the writer. But all the really significant facts of life are grim and
often repulsive in the material presented. To the "irony of facts" must
be ascribed the shadows as well as the high lights. No distortions or
speculations can influence the findings of science. They are accessible
and can be checked up by any one sufficiently interested. The student
knows that man is what he is, because of his origin and long and painful
past.
XIV
CRIMES AGAINST PROPERTY
By far the largest class of crimes may be called crimes against
property. Strictly speaking, these are crimes in relation to the
ownership of property; criminal ways of depriving the lawful owner of
its possession.
Many writers claim that nearly all crime is caused by economic
conditions, or in other words that poverty is practically the whole
cause of crime. Endless statistics have been gathered on this subject
which seem to show conclusively that property crimes are largely the
result of the unequal distribution of wealth. But crime of any class
cannot safely be ascribed to a single cause. Life is too complex,
heredity is too variant and imperfect, too many separate things
contribute to human behavior, to make it possible to trace all actions
to a single cause. No one familiar with courts and prisons can fail to
observe the close relation between poverty and crime. All lawyers know
that the practice of criminal law is a poor business. Most lawyers of
ability refuse such practice because it offers no financial rewards.
Nearly all the inmates of penal institutions are without money. This is
true of almost all men who are placed on trial. Broad generalizations
have been made from statistics gathered for at least seventy-five years.
It has been noted in every civilized country that the number of property
crimes materially increases in the cold months and diminishes in the
spring, summer and early autumn. The obvious cause is that employment is
less regular in the winter time, expenses of living are higher, idle
workers are more numerous, wages are lower, and, in short, it is harder
for the poor to live. Most men and women spend their whole lives close
to the line of want; they have little or nothing laid by. Sickness, hard
luck, or lack of work makes them penniless and desperate. This drives
many over the uncertain line between lawful and unlawful conduct and
they land in jail. There are more crimes committed in hard times than in
good times. When wages are comparatively high and work is steady fewer
men enter the extra-hazardous occupation of crime. Strikes, lockouts,
panics and the like always leave their list of unfortunates in the
prisons. Every lawyer engaged in criminal practice has noticed the large
numbers of prosecutions and convictions for all sorts of offences that
follow in the wake of strikes and lockouts.
The cost of living has also had a direct effect on crime. Long ago,
Buckle, in his "_History of Civilization_," collected statistics
showing that crime rose and fell in direct ratio to the price of food.
The life, health and conduct of animals are directly dependent upon the
food supply. When the pasture is poor cattle jump the fences. When food
is scarce in the mountains and woods the deer come down to the farms and
villages. And the same general laws that affect all other animal life
affect men. When men are in want, or even when their standard of living
is falling, they will take means to get food or its equivalent that they
would not think of adopting except from need. This is doubly true when a
family is dependent for its daily bread upon its own efforts.
Always bearing in mind that most criminals are men whose equipment and
surroundings have made it difficult for them to make the adjustments to
environment necessary for success in life, we may easily see how any
increase of difficulties will lead to crime. Most men are not well
prepared for life. Even in the daily matter of the way to spend their
money, they lack the judgment necessary to get the most from what they
have. As families increase, debts increase, until many a man finds
himself in a net of difficulties with no way out but crime. Men whose
necessities have led them to embezzlement and larceny turn up so
regularly that they hardly attract attention. Neither does punishment
seem to deter others from following the same path although the danger
of detection, disgrace and prison is perfectly clear.
Sometimes, of course, men of education and apparent lack of physical
defect commit property crimes. Bankers often take money on deposit after
the bank is insolvent. Not infrequently they forge notes to cover losses
and in various ways manipulate funds to prevent the discovery of
insolvency. As a rule the condition of the bank is brought about by the
use of funds for speculation, with the intention of repaying from what
seems to be a safe venture. Sometimes it comes through bad loans and
unforeseen conditions. Business men and bankers frequently shock their
friends and the community by suicide, on disclosures showing they have
embezzled money to use on some financial venture that came to a
disastrous end.
These cases are not difficult to understand. The love of money is the
controlling emotion of the age. Just as religion, war, learning,
invention and discovery have been the moving passions of former ages, so
now the accumulation of large fortunes is the main object that moves
man. It does not follow that this phase will not pass away and give
place to something more worth while, but while it lasts it will claim
its victims, just as other strong emotions in turn have done. The fear
of poverty, especially by those who have known something of the value of
money, the desire for the power that money brings, the envy of others,
the opportunities that seem easy, all these feelings are too strong for
many fairly good "machines," and bring disaster when plans go wrong.
Only a small portion of those who have speculated with trust funds are
ever prosecuted. Generally the speculation is successful or at least
covered up. Many men prefer to take a chance of disgrace or punishment
or death rather than remain poor. These are not necessarily dishonest or
bad. They may be more venturesome, or more unfortunate; at any rate, it
is obvious that the passion for money, the chance to get it, the dread
of poverty, the love of wealth and power were too strong for their
equipment, otherwise the pressure would have been resisted. The same
pressure on some other man would not have brought disaster.
The restrictions placed around the accumulation of property are
multiplying faster than any other portions of the criminal code. It
takes a long time for new customs or habits or restraints to become a
part of the life and consciousness of man so that the mere suggestion of
the act causes the reaction that doing it is wrong. No matter how long
some statutes are on the books, and how severe the penalties, many men
never believe that doing the forbidden act is really a crime. For
instance, the violations of many revenue laws, game laws, prohibition
laws, and many laws against various means of getting property are often
considered as not really criminal. In fact, a large and probably growing
class of men disputes the justice of creating many legal rules in
reference to private property.
Primitive peoples, as a rule, held property in common. Their inhibitions
were few and simple. They took what they needed and wanted in the
easiest way. There is a strong call in all life to hark back to
primitive feelings, customs and habits. Many new laws are especially
painful and difficult to a large class of weak men who form the bulk of
our criminal class.
To understand the constant urge to throw off the shackles of
civilization, one need but think of the number of men who use liquor or
drugs. One need only look at the professional and business man, who at
every opportunity leaves civilization and goes to the woods to kill wild
animals or to the lakes and streams to fish.
The call to live a simple life, free from the conventions, customs and
rules, to kill for the sake of killing, to get to the woods and streams
and away from brick buildings and stone walls, is strong in the
constitution of almost every man. Probably the underlying cause of the
world war was the need of man to relax from the hard and growing strain
of the civilization that is continually weaving new fetters to bind
him. There must always come a breaking point, for, after all, man is an
animal and can live only from and by the primitive things.
Children have no idea of the rights of property. It takes long and
patient teaching, even to the most intelligent, to make them feel that
there is a point at which the taking of property is wrong. Nowhere in
Nature can we see an analogy to our property rights. Plants and animals
alike get their sustenance where and how they can. It is not meant here
to discuss the question of how many of the restrictions that control the
getting of property are wise and how many are foolish; it is only meant
to give the facts as they affect life and conduct.
It is certainly true that the child learns very slowly and very
imperfectly to distinguish the ways by which he may and may not get
property. His nature always protests against it as he goes along. Only a
few can ever learn it in anything like completeness. Many men cannot
learn it, and if they learned the forbidden things they would have no
feeling that to disobey was wrong. Even the most intelligent ones never
know or feel the whole code, and in fact, lawyers are forever debating
and judges doubting as to whether many ways of getting property are
inside or outside the law. No doubt many of the methods that intelligent
and respected men adopt for getting property have more inherent
criminality than others that are directly forbidden by the law. It must
always be remembered that all laws are naturally and inevitably evolved
by the strongest force in a community, and in the last analysis made for
the protection of the dominant class.
XV
ATTITUDE OF THE CRIMINAL
Probably the chief barrier to the commission of crime is the feeling of
right and wrong connected with the doing or not doing of particular
acts. All men have a more or less binding conscience. This is the result
of long teaching and habit in matters of conduct. Most people are taught
at home and in school that certain things are right and that others are
wrong. This constant instruction builds up habits and rules of conduct,
and it is mainly upon these that society depends for the behavior of its
citizens. To most men conscience is the monitor, rather than law. It
acts more automatically, and a shock to the conscience is far more
effective than the knowledge that a law is broken. For the most part the
promptings of conscience follow pretty closely the inhibitions of the
criminal code, although they may or may not follow the spirit of the
law. Each person has his own idea of the relative values attached to
human actions. That is, no two machines respond exactly alike as to the
relative importance of different things. No two ethical commands have
the same importance to all people or to any two people. Often men do
not hesitate to circumvent or violate one statute, when they could never
be even tempted to violate another.
Ordinarily unless the response of conscience is quick and plain, men are
not bothered by the infraction of the law except, perchance, by the fear
of discovery. This is quite apart from the teaching that it is the duty
of all men to obey all laws, a proposition so general that it has no
effect. Even those who make the statement do not follow the precept, and
the long list of penal laws that die from lack of enforcement instead of
by repeal is too well known to warrant the belief that anyone pays
serious attention to such a purely academic statement. No one believes
in the enforcement of all laws or the duty to obey all laws, and no one,
in fact, does obey them all. Those who proclaim the loudest the duty of
obedience to all laws never obey, for example, the revenue laws. These
are clear and explicit, and yet men take every means possible to have
their property exempted from taxation--in other words, to defraud the
State. This is done on the excuse that everyone else does it, and the
man who makes a strict return according to law would pay the taxes of
the shirkers. While this is true, it simply shows that all men violate
the law when the justification seems sufficient to them. The laws
against blasphemy, against Sunday work and Sunday play, against buying
and transporting intoxicating liquors and smuggling goods are freely
violated. Many laws are so recent that they have not grown to be
folk-ways or fixed new habits, and their violation brings no moral
shock. In spite of the professions often made, most men have a poor
opinion of congressmen and legislators, and feel that their own
conscience is a much higher guide for them than the law.
Religions have always taught obedience to God or to what takes His
place. Religious commands and feelings, are higher and more binding on
man than human law. The captains of industry are forever belittling and
criticising all those laws made by legislatures and courts which
interfere with the unrestricted use of property. None of this sort of
legislation has their approval and the courts are regarded as meddlesome
when they enforce it. The anti-trust laws, the anti-pooling laws,
factory legislation of all kinds, anything in short that interferes with
the unrestricted use of property by its owner are roundly condemned and
violated by evasion. On the other hand, so much has been written and
said in reference to the creation of the fundamental rights to own
property, and these rights depend so absolutely upon social arrangements
and work out such manifest injustice and inequality, that there is
always a deep-seated feeling of protest against many of our so-called
property laws. From those who advocate a new distribution of wealth and
condemn the injustice of present property rights, the step is quite
short to those who feel the injustice and put their ideas in force by
taking property when and where they are able to get it.
For instance, a miner may believe that the corporation for which he
works really has no right to the gold down in the mine. As he is digging
he strikes a particularly rich pocket of high-grade ore. He feels that
he does no wrong if he appropriates the ore. Elaborate means are taken
to prevent this, even compelling the absolute stripping of the workman,
and a complete change of clothes on going in and coming out of the mine.
Many laws are put on the books which are of a purely sumptuary nature;
these attempt to control what one shall do in his own personal affairs.
Such laws are brought about by organizations with a "purpose". The
members are anxious to make everyone else conform to their ideas and
habits. Such laws as Sunday laws, liquor laws and the like are examples.
Then, too, every state or nation carries a large list of laws that men
have so long violated and ignored, that they virtually are dead. To
violate these brings no feeling of wrong, but only serves to make men
doubt the evil of violating any law.
It is never easy to get a Legislature to repeal a law. Generally some
organization or committee of people is interested in keeping it alive,
and the members of the Legislature fear losing their votes. Social ideas
are always changing. No laws or customs are eternal. The ordinary man,
and especially the man under the normal, cannot keep up with all the
shifting of a changing world. There is always a fraction of a community
agitating for something new and gradually forcing the Legislature to put
it into law, even against the will of the majority and against the
sentiment of a large class of the community. The organization that wants
something done is always aggressive. The man who wants to prevent it
from being done is seldom unduly active or even alarmed. Many
organizations are eager to get statutes on the books. One seldom hears
of a society or club that is active in getting laws repealed. The
constant change of law, the constant fixing of new values in place of
old ones, is necessary to social life. This means putting new wine into
old bottles, and wine that is much too strong for the bottles. Everybody
can see why some particular law might be violated without a sense of
guilt, but they cannot see how a law they believe in can be violated
without serious obliquity.
Apart from this, there have always been crimes that were not of the
class that implied moral wrong. The acts of the revolutionist who saw,
or thought he saw, visions of something better; the man who is inspired
by the love of his fellow-man and who has no personal ends to gain; the
man who in his devotion to an idea or a person risks his life or liberty
or property or reputation, has never been classed with those who violate
the law for selfish ends. The line of revolutionists, from the beginning
of organized government down to the birth of the United States and even
to the present time, furnishes ample proof of this. And still the
unsuccessful revolutionist meets with the severest penalties. To him
failure generally means death. Men who are fired with zeal for all new
causes are forever running foul of the law. Social organization, like
biological organization, is conservative. All things that live are
imbued with the will to live and they take all means in their power to
go on living. The philosopher can neither quarrel with the idealist who
makes the sacrifice nor the organization that preserves itself while it
can; he only recognizes what is true.
Men have always been obliged to fight to preserve liberty. Constitutions
and laws do not safeguard liberty. It can be preserved only by a
tolerant people, and this means eternal conflict. Emerson said that the
good citizen must not be over-obedient to law. Freedom is always
trampled on in times of stress. The United States suffered serious
encroachments on liberty during the Civil War. During the last war,
these encroachments were greater than any American could have possibly
dreamed; and so far there seems little immediate chance for change.
Still the philosopher does not complain. He sees human passion for what
it is, a great emotion that holds men in its grasp, a feeling that
nothing can stand against. Opposition is destroyed by force, and often
blind, cruel, unreasoning force. Sometimes even worse, this force is
created for selfish ends. There are always those who will use the
strongest and highest emotions of men to serve their private, sordid
ends. Changing social systems, new political ideas, the labor cause, all
movements for religious, social or political change have their zealots;
they are met by the force of convention and conservatism ready to defend
itself, and the clash is inevitable. It is easy to distinguish this sort
of action from the things done by those who are known as criminals.
Their acts are done to serve personal ends. Society may always punish
both, but all men of right ideas will understand that the motive is
different, the equipment and capacity of the men are different, and they
are only in the same class because they each violate the law and are
each responsive to emotions and to feelings that are of sufficient
strength to compel action.
XVI
THE LAW AND THE CRIMINAL
If one were ill with a specific disease and he were sent to a hospital,
every person who touched him, from the time his disease was known until
he was discharged, would use all possible effort to bring him back to
health. Physiology and psychology alike would be used to effect a cure.
Not only would he be given surroundings for regaining health and ample
physical treatment, but he would be helped by appeals in the way of
praise and encouragement, even to the extent of downright falsehood
about his condition, to aid in his recovery.
If such is done of "disease," why not of "crime"? Not only is it clear
that crime is a disease whose root is in heredity and environment, but
it is clear that with most men, at least when young, by improving
environment or adding to knowledge and experience, it is curable. Still
with the unfortunate accused of crimes or misdemeanors, from the moment
the attention of the officers is drawn to him until his final
destruction, everything is done to prevent his recovery and to aggravate
and make fatal his disease.
The young boy of the congested districts, who tries to indulge his
normal impulses for play, is driven from every vacant lot; he is
forbidden normal activity by the police; he has no place of his own; he
grows to regard all officers as his enemies instead of his friends; he
is taken into court, where the most well-meaning judge lectures him
about his duties to his parents and threatens him with the dire evils
that the future holds in store for him, unless he reforms. If he is
released, nothing is done by society to give him a better environment
where he can succeed. He is turned out with his old comrades and into
his old life, and is then supposed by strength of will to overcome these
surroundings, a thing which can be done by no person, however strong he
may be.
For the graver things, the boy or man is taken to the police station.
There he is photographed and his name and family record taken down even
before he has had a hearing or a trial. He is handled by officers who
may do the best they can, but who by training and experience and for
lack of time and facilities are not fitted for their important
positions. I say this in spite of the fact that my experience has taught
me that policemen, as a rule, are kindly and human. From the police
station the offender is lodged in jail. Here is huddled together a great
mass of human wreckage, a large part of it being the product of
imperfect heredities acted upon by impossible environments. However
short the time he stays, and however wide his experience, the first
offender learns things he never knew before, and takes another degree in
the life that an evil destiny has prepared for him. In the jail he is
fed much like the animals in the zoo. In many prisons the jailer is
making what money he can by the amount he can save on each prisoner he
feeds above the rate the law allows of twenty-five or fifty cents a day.
In a short time the prisoner's misery and grief turn to bitterness and
hate; hatred of jailer, of officers, of society, of existing things, of
the fate that overshadows his life. There is only one thing that offers
him opportunity and that is a life of crime. He is indicted and
prosecuted. The prosecuting attorney is equipped with money and provided
with ample detectives and assistants to make it impossible for the
prisoner to escape. Everyone believes him guilty from the time of his
arrest. The black marks of his life have been recorded at schools, in
police stations and examining courts. The good marks are not there and
would not be competent evidence if they were. Theoretically the State's
Attorney is as much bound to protect him as to prosecute him, but the
State's Attorney has the psychology that leads to a belief of guilt, and
when he forms that belief his duty follows, which is to land the victim
in prison. It is not only his duty to land him in jail, but the office
of the State's Attorney is usually a stepping-stone to something else,
and he must make a record and be talked about. The public is interested
only in sending bad folks to jail.
No doubt there are very few State's Attorneys who would knowingly
prosecute unless they believed a man guilty of the offense, but it is
easy for a State's Attorney to believe in guilt. Every man's daily life
is largely made up of acts from which a presumption of either guilt or
innocence can be inferred, depending upon the attitude of the one who
draws the inference.
To a State's Attorney or his assistants the case is one that he should
win. All cases should be won. Even though he means to be fair, his
psychology is to win. No lawyer interested in a result can be fair. The
lawyer is an advocate trying to show that his side is right and trying
to win the case. The fact that he represents the State makes no
difference in his psychology. In fact, he always tells the jury that he
represents the State and is as much interested in protecting the
defendant as in protecting society. He does this so that the jury will
give his statements more weight than the statements of the lawyer for
the defense, and this very remark gives him an advantage that is neither
fair nor right.
The man on trial is almost always poor. It is only rarely that a poor
man can get a competent lawyer to take his case. He is often handed over
to the court for the appointment of a lawyer. The lawyer has no time or
money to prepare a defense. As a rule he is a beginner not fitted for
his job. If he wishes to take the case, he wants it only for the
experience and advertising that it will bring. He is handed a case to
experiment on, just as a medical student is handed a cadaver to dissect.
If the defendant is in jail, he has little chance to prepare his case.
If the defendant had any money he would not know what to do with it. He
is often a mentally defective person. His friends are of the same class
and can do little to help him. The jury are told that they must presume
him innocent, but the accusation alone carries with it the presumption
of guilt, which extends to everyone connected with the case, even to the
lawyer appointed to defend him. It is almost a miracle if the defendant
is not convicted.
Perhaps he is taken out to be hanged--the last act that society can do
for him, or the convicted man is sent to prison for a long or shorter
term. His head is shaved and he is placed in prison garb; he is
carefully measured and photographed in his prison clothes, so that if
he should ever get back to the world he will forever be under suspicion.
Even a change of name cannot help him. While in prison he works and
lives under lock and key, like a wild animal, eager to escape. On
certain days he is allowed to sit at a long table with other
unfortunates like himself, and visit for an hour with mother or father
or wife or son or daughter or friend on the other side. Other prisoners,
so far as he can associate with them, are as helpless and hopeless and
rebellious as he. How they will get out, and when, are their chief
concerns. Many of their guards are very humane. Probably no one seeks to
torture him, but the system and the psychology are fatal. He sees almost
no one who approaches him with friendship and trust and a desire to
help, except his family, his closest friends and his companions in
misery. He knows that the length of his term is entirely dependent upon
officials whom he cannot see or make understand his case. He snatches at
the slightest ray of hope. He is in despair from the beginning to the
end. No prison has the trained men who, with intelligence and sympathy,
should know and watch and help him in his plight. No state would spend
the money necessary to employ enough attendants and aids with the
learning and skill necessary to build him up. Money is freely spent on
the prosecution from the beginning to the end, but no effort is made to
help or save. The motto of the state is: "Millions for offense, but not
one cent for reclamation."
As all things end, prison sentences are generally finished. The prisoner
is given a new suit of clothes that betrays its origin and will be
useless after the first rain, ten dollars in cash, and he goes out. His
heredity and his hard environment have put him in. Now the state is done
with him; he is free. But there is only one place to go. Like any other
released animal, he takes the same heredity back to the old environment.
What else can he do? His old companions are the only ones who will give
him social intercourse, which he needs first of all, and the only ones
who understand him. They are the only ones who will be glad to see him
and help him get a job. There is only one profession for which he is
better fitted after he comes out than he was before he went in, and that
is a life of crime. Of course, he is a marked man and a watched man with
the police. When a crime is committed and the offender is not found, the
ex-convict is rounded up with others of his class to see, perchance, if
he is not the offender that is wanted. He is taken to the lock-up and
shown with others to the witnesses for identification. Before this, the
witness may have been shown his photograph in convict clothes. Perhaps
they identify him, perhaps they do not; if identified, he may be the
man or he may not be. Anyhow, he has been in prison and this is against
him. Whenever he comes out and wherever he goes, his record follows him
as closely as his shadow. Even his friends suspect him. They suspect him
even when they help him.
Such is the daily life of these unfortunates. What can be done? I can
see nothing that the officers of the law can do. Officers represent the
people. They reflect mob psychology. Even though an officer here and
there rises above the crowd, as he sometimes does, it is of no avail.
His place soon is filled by someone else. If only the public would
understand! If only the public were more intelligent, which in this case
at least would mean more human! If only the statement I repeat so often
could be understood! There are no accidents; everything is the result of
law. All phenomena are a succession of causes and effects. The criminal
is the result of all that went before him and all that surrounds him.
Like every other mortal, he is a subject for pity and not for hatred. If
society is not safe while he is at large, he must be confined and kept
under guard and observation. He must be kept until he is safe and a
favorable environment found for him. If he will never be safe for
society, he should never be released. He must not be humiliated, made to
suffer unduly, despised or harried. He must be helped if he can be
helped. This should be the second, if not the first object of his
confinement.
Assuming that the scientific attitude toward crime should be accepted by
those who make public opinion, and that this should become crystallized
into written law, the problem would be easy.
The officers of the state can, as a rule, be depended upon to deal
properly and considerately with the known insane. The insane are more
trying and difficult than the criminal. Courts and juries and the
public, however, recognize their mental condition and do not visit them
with vengeance. It is appreciated and understood that they cannot with
safety be left at large; but they are given the care and consideration
that their condition demands. If the criminal should be looked upon as
are the creatures insane from natural causes, the State's Attorney could
then be trusted to prepare the case and do the best he could for all
concerned. The defendant would no longer be a defendant. His case would
be under investigation; his past life would be shown, his credits as
well as his debits; he would need no lawyer, not even a public defender;
no jury would be required, and the uncertainties and doubts that hang
around judgments would be removed. There would be little chance for a
miscarriage of justice. Even should there be, it would result in the
speedy release of one against whom the public bore no ill-will. One who
was sick or insane would ordinarily not need a lawyer, as the state
would bear him no malice and make no effort to do more than investigate
the case and present the facts. The whole matter should be a purely
scientific attempt to find out the best thing to be done both for the
interest of the public and the interest of the man.
No doubt, in many cases, men are convicted who are perfectly innocent of
the crime of which they are accused. This is especially true with the
poor who can provide for no adequate defense and who perhaps have been
convicted before of some misdemeanor or crime. This is also often true
in cases where there is great prejudice against the defendant, either on
account of the nature of the case or of the defendant on trial. For
instance, during the recent war a wave of hysteria swept over the world,
and courts and juries trampled on individual rights and freely violated
the spirit of laws and constitutions. The close of the war left the same
intense feelings of bitterness which made justice impossible in cases
where the charge savored of treason, and involved criticism of the
government, or advocacy of a change of political systems.
Questions of race, religion, politics, labor and the like have always
awakened violent feelings on all sides, have made bitter partisans and
strict lines of cleavage, and have made verdicts of juries and
judgments of courts the result of fear and hatred. In spite of this,
most of the inmates of prisons have done the acts charged in the
indictments. Why they did them, their states of mind, the conditions and
circumstances surrounding them, what can be done to make them stronger
and better able to meet life are never ascertained, and few courts or
juries have ever deemed these things proper subjects for consideration
or in any way involved in the case.
In law every crime consists of two things: an act and an intent. Both
are necessary to constitute legal guilt, and on the prevalent theory of
moral guilt and punishment both are necessary to make up criminal
conduct. There can be no legal or moral guilt unless one intends
wickedness; unless he deliberately does the act because he wishes to do
wrong and knows he does wrong. The question then of moral guilt, which
is necessary to the commission of a criminal act, touches all the
questions suggested and many more. Even if freedom of action is to some
degree assumed, the question still remains as to the degree of guilt in
fixing punishment and responsibility. The question involves the make-up
of the man, his full heredity, so far as it can be known.
Most of every man's heredity is hidden in the mist and darkness of the
past. He inherits more or less directly through an infinite number of
ancestors, reaching back to primitive man and even to the animals from
which he came. The remote ancestry is, of course, usually not so
important as that immediately behind him. Still, plainly, his form and
structure and the details of his whole machine, including the
marvelously delicate mechanism of the brain and nervous system, are
heritages of the very ancient past. Neither are the processes of
inheritance well understood nor subject to much control. Often in the
making of the man Nature resorts to some "throw-back" which reproduces
the ancient heritage. This can be seen only in general resemblances and
behavior, for the genealogical tree of any family is very short and very
imperfectly known, and the poor have no past. In three or four
generations at the most the backward trail is lost and his family merged
with the species of which he forms but a humble part.
Enough, however, is known of ancestry and the infinite marks of
inheritance on every structure as well as enough of the reaction of the
human machine to the varied environment that surrounds it, to make it
clear that if one were all-seeing and all-wise he could account in
advance for every action of every man. More than this, he could see in
the original, fertilized cell, all its powers, defects and
potentialities and could, in the same manner, look down through the
short years during which the human organism, grown from the cell, shall
have life and movement, and could see its varied environment. If one
could see this with infinite wisdom, he could infallibly tell in advance
each step that the machine would take and infallibly predict the time
and method of its dissolution. To be all-knowing is to be
all-understanding, and this is infinitely better than to be
all-forgiving.
To get this knowledge of the past of each machine is the duty and work
of the tribunal that passes on the fate of a man. It can be done only
imperfectly at best. The law furnishes no means of making these
judgments. All it furnishes is a tribunal where the contending lawyers
can fight, not for justice, but to win. It is little better than the old
wager of battle where the parties hired fighters and the issue was
settled with swords. Oftentimes the only question settled in court is
the relative strength and cunning of the lawyers. The tribunal whose
duty it is to fix the future place and status of its fellowmen should be
wise, learned, scientific, patient and humane. It should take the time
and make its own investigation, and it can be well done in no other way.
When public opinion accepts the belief that punishment is only cruelty,
that conduct is a result of causes, and that there is no such thing as
moral guilt, investigations and sorting and placing of the unfortunate
can be done fairly well. The mistakes will be very few and easily
corrected when discovered. There will be no cruelty and suffering. The
community will be protected and the individual saved.
Neither will this task be so great as it might seem at first glance.
Trials would probably be much shorter than the endless, senseless
bickering in courts, the long time wasted in selecting juries and the
many irrelevant issues on which guilt or innocence are often determined,
make necessary now. Most of the criminal cases would likewise be
prevented if the state would undertake to improve the general social and
economic condition of those who get the least. Only a fraction of the
money spent in human destruction, in war and out, would give an
education adapted to the individual, even to the most defective. It
would make life easy by making the environment easy. Only a few of the
defective, physically and mentally, would be left for courts to place in
an environment where both they and society could live. Perhaps some time
this work will be seriously taken up. Until then, we shall muddle along,
fixing and changing and punishing and destroying; we will follow the old
course of the ages, which has no purpose, method or end, and leaves only
infinite suffering in its path.
XVII
REPEALING LAWS
It is comparatively easy to get a penal statute on the books. It is very
hard to get it repealed. Men are lazy and cowardly; politicians look for
votes; members of legislatures and Congress are not so much interested
in finding out what should be done, as they are in finding out what the
public thinks should be done. Often a law lingers on the books long
after the people, no longer believing the forbidden thing to be wrong,
have repealed it. The statute stays, to be used by mischievous people
and by those who believe in the particular law.
Often the unthinking lay hold of a catch-word or a pet phrase and repeat
and write it, as if it were the last word in social science and
philosophy. General Grant, when president, stumbled on such a silly
combination of words, and surface-thinkers have been repeating it ever
since, simply because it sounds wise and pat. Grant once said that, "The
way to repeal a bad law is to enforce it." Grant was not a statesman nor
a philosopher. He was a soldier. He probably heard some one use this
phrase, and it sounded good to him. Out of that has grown the further
statement which courts and prosecutors have used to excuse themselves
for the cruelty of enforcing a law that does violence to the feelings of
the people. This statement is to the effect that so long as the law is
on the books, it is the duty of officers to enforce it. The smallest
investigation of the philosophy of law shows how silly and reactionary
such statements are.
One thing should be remembered. Laws really come from the habits,
customs and feelings of the people, as interpreted or understood by
legislative bodies. When these habits and customs are old enough they
become the folk-ways of the people. Legislatures and courts only write
them down. When the folk-ways change the laws change, even though no
legislature or judge has recorded their repeal.
Since Professor Sumner of Yale University wrote his important book,
"_Folkways_," there is no excuse for any student not knowing that this
statement is true. As a matter of fact, no court ever enforced all the
written laws, or ever would, or ever could. Only a part of the discarded
criminal law is ever repealed by other laws. The rest dies from neglect
and lack of use. It is like the rudimentary parts of the human anatomy.
Man's body is filled with rudimentary muscles and nerves that, in the
past, served a purpose. These were never removed by operations, but died
from disuse. Every criminal code is filled with obsolete laws, some of
them entirely dead, others in the course of dissolution. They cannot be
repealed by statute so long as an active minority insists that they
remain on the books. When the great mass no longer wants them, it is
useless to take the trouble to repeal them. The fugitive slave law was
never believed in and never obeyed, and it was openly violated and
defied by the great mass of the people of the North. The Fourteenth and
Fifteenth Amendments to the Federal Constitution, and the statutes
passed to enforce them, providing political and civil equality for the
black man, and forbidding discrimination on railroads, in hotels,
restaurants, theatres and all public places, have never really been the
law in any state in the Union. Their provisions have always been openly
violated and no court would think of enforcing them, for the simple
reason that public sentiment is against it. Laws condemning witchcraft
and sorcery both in Europe and America did their deadly work and died,
for the most part, without repeal. Sabbath laws of all sorts forbidding
work and play and amusements are dead letters on the statute books of
most states, in spite of many attempts to galvanize them into life. All
kinds of revenue laws are openly violated. Most tax-payers of
intelligence who own property violate the revenue law openly and
notoriously, and all courts and officers as well as the public know it.
Many laws which interfere with the habits, customs and beliefs of a
large number of people, like the prohibition laws, never receive the
assent of so large a percentage as to make people conscious of any wrong
in violating them, and therefore people break them when they can. Often
this class of laws is enforced upon offenders who believe the law is an
unwarrantable interference with their rights, and thus causes
convictions where no moral turpitude is felt.
Every new crusade against crime not only sweeps away a large amount of
work that has been slowly and patiently done toward a right
understanding of crime, but likewise puts new statutes on the books
which would not be placed there if the public were sane. When it does
not do this, it increases penalties which work evil in other directions
and awe courts, juries, governors and pardon boards, not only preventing
them from listening to the voice of humanity and justice, but causing
them to deny substantial rights and wreak vengeance and cruelty upon the
weak and helpless.
XVIII
IS CRIME INCREASING?
The question is often asked, Is crime increasing? Statistics of all
kinds can be gathered on this subject. In the main they seem to show
that crime is on the increase in most civilized countries. It is very
unsafe to use statistics without at the same time considering all the
questions on which conduct rests. An increase of crime, as shown by
statistics, may mean that the records are kept more completely than in
former times. It may mean temporary causes like bad times are adding to
the number of arrests and convictions. It may mean new classifications.
It may mean that figures are based on arrests instead of convictions. It
may include misdemeanors with graver offenses. It may or may not include
repeaters. Statistics in any field are useful, but usually for broad
generalizations, and they must always be interpreted by men of
experience who are not interested in the results. Still, on the whole,
it is probable that statistics show that crime is on the increase. What
have reason and human experience to say on the subject?
We should always bear in mind that crime can never mean anything except
the violation of law, when the violator is convicted; that it has no
necessary reference to the general moral condition of man. Is the number
of criminal convictions growing, and if so why? In the first place, the
criminal code is lengthening every year. When civilized man began making
criminal codes, there were comparatively few things forbidden. The codes
were largely made up of those acts which, in some form, have for ages
been generally thought to be criminal. Religious beliefs, customs and
habits were included in the penal statutes. So were such things as
sorcery and witchcraft. Property was then not an important subject in
man's activities. When the instinct to create and accumulate property
began to rule life, the criminal code grew very rapidly. Complex
business interests, combined with the constantly increasing value placed
on property, were always calling for new statutes.
The same tendency, indirectly, demanded still other statutes until at
the present time this class of crimes makes up a large part of the
criminal code and is growing steadily each year. Then too, the necessity
of property has called for the violation of this part of the criminal
code more than any other, and it has naturally caused a considerable
increase of crime. Man in his social and political activities is ever
weaving and bending and twisting back and forth. For a number of years
the universal tendency, especially in America, has been toward what is
called "Social Control", the idea being that more and more people should
be controlled in an increasing number of ways. Of course, if people are
to be controlled they must be controlled by other people. This policy
has been extended until we are ever pushing further into the regulation
of the habits, customs and lives of all the individual members of the
community. The majority, when it has the power, has never hesitated to
force its ways of living, its ideas, customs and habits on the minority.
The majority, when strong enough, has always assumed that it was right,
and provided that others must live its way or not at all. The pendulum
is now swinging far this way as is evidenced by prohibition, the
persistent campaign for Sunday laws, and the growing belief in social
control as a means of changing and directing humanity.
This has added to the criminal code and has increased the number of men
in prisons. Two statutes of recent date in most of the states are
responsible for a very large increase in the number of convicts. The
conspiracy statute which is used today is a deliberate scheme on the
part of prosecutors to get men into the penitentiary by charging an
agreement or confederation of two or more persons to do something,
which, if really committed, would be a misdemeanor, or no crime
whatever. Under this charge, whether made specifically or in connection
with another crime, the rules of evidence have been opened and relaxed
until the wildest and most remote hearsay is freely admitted for the
plain purpose of convicting men who have really been guilty of no
specific act. It is in effect punishing one for his thoughts; the
business of the court or jury being to find out whether in some
particular he has an evil mind.
The statute forbidding the use of the "confidence game" in obtaining
property sends to prison a constant stream of persons who, until a few
years ago, would have been guilty of no crime. This law, as interpreted
by the courts, really means the procuring of money by dishonest means.
Under this statute the court and jury hear the evidence and say whether
the means charged are dishonest or not. This, of course, leaves the law
so that the temporarily prevailing power, perhaps only the prosecuting
attorney, may send men to prison who take means of getting money that
are not practiced or at least advocated by the ones who procure the
passage and enforcement of the law.
Numberless ways used by the strong to get money are considered dishonest
by a large class of men and women: exaggerated and lying advertisements,
forestalling the markets, the acts and wiles of the professional
salesman, misrepresenting goods and other methods that could never be
catalogued because new ways are constantly coming to light. The logical
end of all these indefinite and uncertain laws is to pass one statute
providing that whoever does wrong shall be imprisoned, _et cetera, et
cetera_. The law never can specify all the ways of doing wrong and many
of the meanest and most annoying things have never been, and from the
nature of things never can be, prohibited by the statutes. No man is a
good citizen, a good neighbor, a good friend, or a good man just because
he obeys the law. The intrinsic worth is determined mainly by the
intrinsic make-up.
Civilization is all the while making it harder for men to keep out of
prison. Especially do the weak and ignorant and poor find that
environment is constantly creating more inhibitions as time goes on.
While rules and customs are prohibiting more and more ways of getting
property, the needs growing out of civilization are always increasing.
The simple inexpensive life of the past has given place to a more
complex way of living, which calls for greater expense and harder work.
It has created rivalry and jealousy to get the things that others have,
and has placed men in a mad race with each other which often leads to
jail or death.
Students of biology are constantly noting the difficulty that hereditary
human traits, which have been evolved for simple reactions and plain
living, find in making the necessary adjustments to the extravagant
demands and complicated environment of the present day. This departure
from the old normal and simple environment, due largely to machinery and
commerce, is not only destroying individual lives by the thousands, but
is seriously threatening the whole social fabric.
The creation of new courts, like "Boys' Courts," "Juvenile Courts,"
"Courts of Domestic Relations," "Moral Courts," with their array of
"Social Workers," "Parole Agents," "Watchers," _et cetera,_ shows the
growth of crime and likewise the hopelessness of present methods to deal
effectively with a great social question. Numbers of people in our big
cities are making their living from the abnormal lives of children.
Whether they are doing good or not, or whether their service is
unselfish, as much of it doubtless is, are both quite aside from the
question. The important fact is that the present system brings no
results and that the disease is growing.
Instead of any considerable number of people taking hold of the question
of crime, as physicians have taken hold of disease, and seeking to find
its cause and to remove that cause, we content ourselves with
prosecuting and punishing and visiting with misery and shame, not only
the boys and girls, the men and women, who are the victims of life, but
the large number of fathers, mothers, brothers, sisters, sons and
daughters, whose lives are ruined by a catastrophe with which at least
they had nothing to do. If a doctor were called in to treat a case of
typhoid fever, he would probably find out where the patient got his milk
supply and his drinking water and would have the well cleaned out to
stop the spread of typhoid fever through infection. A lawyer called to
treat the same kind of a case, legally speaking, would give the patient
thirty days in jail, thinking that this treatment would effect a cure.
If at the end of ten days the patient were cured, he would nevertheless
be kept in prison until his time was out. If at the end of thirty days
the disease was more infectious than ever, the patient would be
discharged and sent upon his way to spread contagion in his path.
The transgression of organized society in the treatment of crime would
not be so great if students and scientists had not long since found the
cause of crime. It would be hard to name a single man among all the men
of Europe and America who have given their time and thought to the
solution of this problem, who has not come to the conclusion that crime
has a natural origin, and that the criminal for the most part is the
victim of heredity and environment. These students have pointed the way
for the treatment of the disease, and yet organized government that
spends its millions on prosecutions, reformatories, jails,
penitentiaries and the like, has scarcely raised its hand or spent a
dollar to remove the cause of a disease that brings misery and despair
to millions and threatens the destruction of all social organization! To
the teaching of the student and the recommendations of the humane the
mob answers back: "Give us more victims, bigger jails, stronger prisons,
more scaffolds!"
Not only has the constant multiplication of penal laws helped without
avail to fill jails, but the failure to repeal laws that are outgrown
does its part. As already stated, there are many anti-social and
annoying things that can be done without violating the law. This, no
doubt, is responsible for some of the general statutes like that aimed
at the confidence game that catches a victim when the crime is not
clearly defined as in "robbery," "burglary," "larceny" and the like.
Still it has been the general opinion of those who have studied crime
and influenced the passage of penal laws, that criminal statutes should
be clear and explicit so that all would know what they must not do. It
is obvious that if one is to be punished simply for doing wrong, there
could be no judges or juries or jailers condemning and punishing and no
crowds shouting for vengeance. All do wrong and do it over and over
again, and day by day. It is not only those specific things that the
great majority think are wrong, but the graver offenses that are meant
to be the subject of criminal codes. Of course, codes do not work out
this way in practice. In effect, they forbid the things that the
strongest forces of the community wish forbidden, things which may or
may not be the gravest and most anti-social acts, but which at least
seem to the strong to be most hostile to their interests and ruling
emotions.
XIX
MEDICAL EXPERTS
So long as the ordinary ideal of punishment prevails, a crime must
consist of an act coupled with an intent to do the thing, which probably
means an intent to do evil. This is no doubt the right interpretation of
intent, although cases can be found, generally of a minor grade, which
hold that evil intent is not necessary to the crime. Under the law as
generally laid down, insanity is a defense to crime when the insanity is
so far advanced as to blot out and obliterate the sense of right and
wrong or render the accused unable to choose the right and avoid the
wrong. Of course, legal definitions of scientific terms, processes, or
things, do not ordinarily show the highest wisdom. It is safe to say
that few judges or lawyers have ever been students of insanity, of the
relation of "will" to "conduct," or of other questions of science or
philosophy. Each man confines himself to his field of operation, and the
love of living does not induce him to go far from the matter in hand,
which to him means the base of supplies.
The insane are exempted from punishment for crime on the ground that
they are not able to prepare and attend to their cases when placed on
trial and on the further ground that their "free will" is destroyed by
disease or "something else," and therefore they could form no intent. In
another place I have tried to point out the fact that the acts of the
sane and the insane are moved by like causes, but this is not the theory
of the law.
Insanity is often very insidious. Many cases are easily classified, but
there is always the border line, the twilight zone, which is sure to
exist in moral questions and in all questions of human conduct, and this
is hard to settle. It is generally determined by the feelings of a jury,
moved or not by the prejudice of the public, depending on whether the
community has been lashed or persuaded to take a hand in the conduct of
the case.
Lawyers and judges are not psychologists or psychiatrists, neither are
juries. Therefore the doctor must be called in. As a rule, the lawyer
has little respect for expert opinion. He has so often seen and heard
all sorts of experts testify for the side that employs them and give
very excellent reasons for their positive and contradictory opinions,
that he is bound to regard them with doubt. In fact, while lawyers
respect and admire many men who are expert witnesses, and while many
such men are men of worth, still they know that the expert is like the
lawyer: he takes the case of the side that employs him, and does the
best he can. The expert is an every-day frequenter of the courts; he
makes his living by testifying for contesting litigants. Of course
scientific men do not need to be told that the receipt of or expectation
of a fee is not conducive to arriving at scientific results. Every
psychologist knows that, as a rule, men believe what they wish to
believe and that the hope of reward is an excellent reason for wanting
to believe. It is not my intention to belittle scientific knowledge or
to criticise experts beyond such general statements as will apply to all
men. I have often received the services of medical experts when valuable
time was given without any financial reward, purely from a sense of
justice. But all men are bound to be interested in arriving at the
conclusion they wish to reach. Furthermore, the contending lawyers are
willing to assist them in arriving at the conclusions that the lawyer
wants.
It is almost inevitable that both sides will employ experts when they
have the means. The poor defendant is hopelessly handicapped. He is, as
a rule, unable to get a skillful lawyer or skillful experts. A doctor's
opinion on insanity is none too good, especially in a case where he is
called only for a casual examination and has not had the chance for long
study. The doctor for the prosecution may find that the subject can play
cards and talk connectedly on most things, and as he is casually
visiting him for a purpose, he can see no difference between him and
other men. This may well be the case and still have little to do with
insanity. Experts called for the defense cannot always be sure that the
patient truthfully answers the questions. A doctor must make up his mind
from examining the patient, except so far as hypothetical questions may
be used. In all larger cities, certain doctors are regularly employed by
the prosecution. While it would be too much to say that they always find
the patient sane, it is safe to say that they nearly always do.
Especially is this true in times of public clamor, which affects all
human conduct. A court trial with an insanity defense often comes down
largely to the relative impression of the testimony of the experts who
flatly contradict each other, leaving with intelligent men a doubt as to
whether either one really meant to tell the truth. The jury knows that
they are paid for their opinions and regards them more or less as it
regards the lawyers in the case. It listens to them but does not rely
upon their opinions. Expert testimony is always unsatisfactory in a
contested case. Under present methods, it can never be any different.
There is another danger: juries do not know the difference in the
standing, character and attainments of doctors, so the tendency is
always to find the man who will make the best appearance and testify
the most positively for his side. This is unfair to the expert, unfair
to science, and unfair to the case.
The method for overcoming this difficulty that has received most
sanction from students is that experts shall be chosen by the state and
appear for neither side. This, like most other things, has advantages
and disadvantages. State officials, or those chosen by the state,
usually come to regard themselves as a part of the machinery of justice
and to stand with the prosecuting attorney for conviction. It will most
likely be the same with state defenders. No one who really would defend
could be elected or could be appointed, and it would work out in really
having two prosecutors, one nominally representing the defense. A
defendant should be left to get any lawyer or any expert he wishes. No
one can be sure that the state expert will be better than the others.
All one can say is that state experts may not be partisans, but, in
effect, this would mean that they would not be partisans for the
defendant. The constant association with the prosecutor, the officers of
the jail, the public officials, and those charged with enforcing the
law, would almost surely place them on the side of the state. Such men
must be elected or appointed by some tribunal. This brings them to the
attention of the public and makes them dependent on the public. The
expert's interest will then be the same as the interest of the
prosecutor and the judge.
The prosecuting attorney is not a partisan. His office is judicial. He
is not interested in convicting or paid for convicting, and yet, no sane
person familiar with courts would think that the defendant could be
safely left in his hands. Assuming he is honest, it makes little
difference. Almost no prosecutor dares do anything the public does not
demand. Neither, as a rule, has he training nor interest to study any
subject but the law. The profounder and more important matters affecting
life and conduct are a sealed book which he could not open if he would.
Very soon under our political system the expert business would gravitate
into the hands of politicians, the last group that should handle any
scientific problem. I am free to confess the difficulties of the present
system, but some other way may be even worse. It must always be
remembered that this country is governed by public opinion, that public
opinion is always crude, uninformed and heartless. In criminal cases
there is no time to set it right. The position of the accused is hard
enough at best. He is really presumed guilty before he starts. Every
lawyer employed to any extent in criminal practice knows that in an
important case his greatest danger is public opinion. He would not take
the officers and attachés of the court as jurors, although they might
be good men, for their interest and psychology would be always for
conviction.
If defendants were not regarded as moral delinquents, if the examination
implied no moral condemnation, if it was only a scientific investigation
as to where to place him if he is anti-social, if public opinion
supported this view, then experts should be appointed by the court. On
this phase of the case there would be little need of experts. I would be
willing to go further and say that then, too, the partisan lawyer, the
hired advocate, should disappear. The machinery of justice would be
all-sufficient to take care of the liberties of every man, to give him
proper treatment in disease, to restore him to freedom when safe, and,
when that time does come, the unseemly contest in courts will disappear,
and justice, tempered with mercy, will have a chance.
XX
PUNISHMENT
Assuming that man is justified in fixing the moral worth of his fellow;
that he is justified in punishment for the purpose of making the
offender suffer; and that these punishments according to the degree of
severity will in some way pay for or make good the criminal act or
protect or help society or prevent crime or even help the offender or
someone else, what finally is the correct basis of fixing penalties?
No science, experience, or philosophy and very little humanity has ever
been considered in fixing punishments. The ordinary penalties are first:
fines, which generally penalize someone else more than the victim; these
with the poor mean depriving families and friends of sorely needed
money, and the direct and indirect consequences are sometimes small and
sometimes very great. These can be readily imagined. If instead of fines
a prison sentence is given, a sort of decimal system has been worked out
by chance or laziness or symmetry of figures; certainly it has been done
wholly regardless of science, for there is no chance to apply science
when it comes to degrading men and taking away a portion of their lives.
Generally ten days is the shortest. From this the court goes to twenty,
then thirty, then sixty, then three months, then six months, then one
year.
Why not eleven days? Why not twenty-four days? Why not forty days? Why
not seventy days? Why not four months or five, or eight or nine or ten
months? Is there no place between six months in jail and a year in jail?
The bids at an auction or the flipping of pennies are exact sciences
compared with the relation between crime and punishment and the process
of arriving at the right penalty. If in the wisdom of the members of the
legislature the crime calls for imprisonment in the penitentiary, then
the ordinary sentences run one, two, five, ten, fifteen, twenty, thirty
years, and life, according to the hazard of the legislature, the whim of
the court, the gamble of the jury, or the feeling and means of
expression of the unthinking and pitiless crowd who awe courts and
juries with their cries for vengeance.
Neither does punishment affect any two alike; the sensitive and proud
may suffer more from a day in jail or even from conviction than another
would suffer from a year. The various courts and juries of the different
states fix different penalties. Even in the same state there is no sort
of resemblance to the punishments generally given for similar crimes.
Some jurisdictions, some juries and some courts will make these three or
four times as severe as others for the same things. Some days the same
judge will give a longer sentence than on other days. In this judges are
like all of us. We have our days when we feel kindly and sympathetic
toward all mankind. We have our days when we mistrust and dislike the
world in general and many people in particular. Largely the weather
influences those feelings. Therefore, the amount of time a person spends
in prison may depend to a great extent on the condition of the weather
at the time of conviction or when sentence is passed. The physical
condition of judge or jury, and above all, their types of mind, are
all-controlling. No two men have the same imagination: some are harsh
and cruel; others kind and sympathetic; one can weigh wheat and corn and
butter and sugar; one can measure water and molasses and gasoline. When
one measures or weighs, one can speak with exactness regarding the thing
involved. Justice and mercy and punishment cannot be measured or
weighed; in fact there is even no starting point. The impossibility of
it all makes many of the humane and wise doubt their right to pass
judgment upon their fellow man. Society no doubt is bound by
self-protection to resist certain acts and to restrain certain men, but
it is in no way bound to pass moral judgments.
Under any system based on a scientific treatment of crime, men would be
taken care of as long as it was necessary to restrain them. It would be
done in the best possible way for their own welfare. If they ever were
adjudged competent to enter society again, they would be released when
that time came. Neither under a right understanding, and a humane,
scientific and honest administration, would it be necessary that places
of confinement should be places of either degradation or misery. In fact
the inmate might well be put where he could enjoy life more than he did
before he was confined. It might and should be the case also that he
could produce enough to amply take care of himself and provide for those
who would naturally look to him for support, and perhaps make
compensation for the injury he had caused to someone else.
It is obvious that this cannot be done until men have a different point
of view toward crime. In the last hundred years much has been done to
make prisons better and to make more tolerable the life of the inmates.
This has been accomplished by men who looked on criminals as being at
least to a certain extent like other men.
Above all, as things are now, the prison inmate has no chance to learn
to conform unless hope is constantly kept before him. He should be like
the convalescing invalid, able from time to time to note his gradual
progress in the ability to make the adjustments that are necessary to
social beings. No patient in a hospital could be cured if he were
constantly told that he could not get well and should not get well. His
imagination should be enlarged by every means that science can bring to
the teaching of man.
First of all there must be individual treatment. No one would think of
putting hundreds or thousands of the ill or insane into a pen, giving
them numbers, leaving them so that no capable person knows their names,
their histories, their families, their possibilities, their strength or
their weaknesses. Every intelligent person must know that this would
inevitably lead to misery and death. The treatment of men in prison is a
much more difficult problem than the care of the physically diseased. It
requires a knowledge of biology, of psychology, of hygiene, of teaching
and of life; it needs infinite patience and sympathy; it needs thorough
acquaintance and constant attention. It is a harder task than the one
that confronts the physician in the hospital, because the material is
poorer, the make is more defective, and the process of cure or
development much slower and not so easily seen.
No person is entirely without the sympathetic, idealistic and altruistic
impulses, which after all are the mainsprings of social adaptation.
Probably these innate feelings can be found in prisoners as generally as
in other men. It is the lack of these qualities that often keeps men
outside the jail. They "get by" where kindly and impulsive men fail. A
large part of the crime, especially of the young, comes from the desire
to do something for someone else and from the ease with which persons
are led or yield to solicitation.
The criminal has always been met by coldness and hatred that have made
him lose his finer feelings, have blunted his sensibilities, and have
taught him to regard all others as his enemies and not his friends. The
ideal society is one where the individuals move harmoniously in their
various orbits without outside control. The governing power of a perfect
order in its last analysis must be within the individual. A perfect
system probably will never come. Men are too imperfect, too weak, too
ignorant and too selfish to accomplish it. Still, if we wish to go
toward perfection, there is no other road.
One of the favorite occupations of legislatures is changing punishments
in obedience to the clamor of the public. In times of ordinary
tranquility a penalty may even be modified or reduced, but let the
newspapers awaken public opinion to crime by the judicious use of
headlines and a hot campaign, let the members feel that there is a
popular clamor and that votes may be won or lost, and the legislature
responds. This is generally done without reference to the experience of
the world, without regard to the nature of man, with no thought of the
victim, and with no clear conception of how the legislation will really
affect the public.
The demand is constantly made that such crimes as kidnapping, train
robbing, rape and robbery should be punished with death, or at least
with imprisonment for life. Irrespective of its effect on the criminal,
what is the effect on the victim of the criminal? A man is held up on a
lonely highway; the robber does not intend to kill. His face is exposed.
If the penalty for robbery is life imprisonment, he kills to avoid
detection. If it is death, he kills even before he robs. The same thing
operates in rape, in burglary, and in other crimes. In all property
crimes not only is no killing intended or wanted, but precautions are
taken to guard against killing. All laws to make drastic penalties
should really be entitled: "An Act to Promote Murder."
Making penalties too drastic destroys the effect meant to be produced.
Public clamor does not last forever. Men grow tired of keeping their
tongues wagging on the same subject all the time. A state of frenzy is
abnormal and when it subsides the temperature not only goes back to
normal, but as far below as it has been above. When the fury has spent
itself jurors regain some of their human feeling and refuse to convict.
History has proved this over and over again, and still politicians
always seek to ride into power on the crest of the wave; when the wave
moves back, they can easily go back with it. Even if the severe
punishments should be continued without abatement, these soon lose their
power to terrify. Communities grow accustomed to hangings; they get used
to life sentences and long imprisonments and the severity no longer
serves to awe. The cruelty serves only as a mark of the civilization of
the day. Some day, perhaps, a wiser and more humane world will marvel at
our cruelty and ignorance, as we now marvel at the barbarity of the
past.
XXI
THE EFFECT OF PUNISHMENT ON OTHERS
The ordinary man who hears of a crime hates the criminal and wants him
to suffer. He does not picture the malefactor as a man who, for some
all-sufficient reason, has committed a dreadful act. Still less does he
ask: "Has he a father or mother, a wife or children, brothers or
sisters, and how are these affected by his deed?" No one can
intelligently deal with the criminal without considering these.
Practically no inmate of a prison stands alone. He is a member of a
family or small social group, and inevitably the interests of these
others are more or less closely bound up with his. If punishment is
justified for its influence on society, these must be taken into account
with the other members of the social organization.
The criminal, it must be remembered, is almost always poor. He has a
mother, brothers and sisters, wife or children, dependent for support to
a large extent, upon his casual earnings. He is placed in jail or the
penitentiary and the family must make new adjustments to life. The
mother or wife may go to work at hard labor for a small return; the
children may be taken out of school and sent to stores or factories, be
condemned to lives of drudgery that will often lead to crime. The family
may be broken up and scattered through institutions and the poorest
shelters. A complete transformation for the worse almost always comes
over the home. It is safe to say that at least three or four are closely
touched by the misfortune of every one. These lives must be readjusted,
and the chances are that the new adjustments will not be equal to the
old, if for nothing else than because the conviction is a serious
handicap in their struggles. Let anyone go to a city jail on a visiting
day and see the old mothers, the stunned and weeping wives, the little
children, down to babes in arms, who crowd around the corridors to get a
look at the man behind the bars. To them at least he is a human being
with feelings and affections, with wants and needs. All of these can
recount his many good qualities which the world cannot see or know.
Their first step is to borrow or to sell what they can to provide means
for his defense. Everything else is cast aside. Day after day they visit
the jail and the lawyer, contriving means to save liberty or life. When
the trial comes, they watch through its maze in a dazed, bewildered way.
They know that the man they love is not the one who is painted in the
court room, and at least to them he is not. If he is convicted and goes
to prison for a term of years, then month by month the faithful family
goes to see him for an hour in the prison, visiting across the table in
open view of guards and others as unfortunate as they. The family
follows all sorts of advice and directions and seeks out many hopeless
clews for men of influence and position who can unlock prison doors. The
weeks run into months and the months into years, and still many of them
keep up their hopeless vigil; some are driven to drudgery, some to
crime, some to destruction for the man whom the state has punished that
society may be improved. It is safe to say that the state ruins at least
one other life for every victim of the prison.
No provision is made for the dependent families of the wretched man.
Ruthlessly society sends the man to prison and sees the daughter leave
school, a mere child, and go to work. What becomes of her it does not
know or care. It seems not to know that she exists. The state sees the
convict's boy working at casual tasks and growing up on the streets,
while his father is paying the penalty of his act. He may on this
account follow his father to jail; it is not society's concern.
Assuming that an offender must be confined for the protection of
society, as some no doubt must be, still the effect on the family and
how to prevent its destruction should be among the first concerns in the
disposition of the case.
XXII
EVOLUTION OF PUNISHMENT
Among primitive peoples the penal code was always short. Desire for
property had not taken possession of their emotions. Their lives were
simple, their adjustments few, and there was no call for an elaborate
code of prohibited acts. Their punishments were generally simple, direct
and severe: usually death or banishment which often meant death,
sometimes maiming and branding, so that the offender might serve as a
constant warning to others.
Primitive peoples early asked questions about their origin and destiny.
The unknown filled most of the experiences of their lives. The realm of
the known was very small. They had no idea of law and system, of cause
and effect. They early began evolving religious ideas. The
manifestations of nature, the mystery of birth, the fear of death, the
phenomena of dreams, the growth and harvesting of crops--all of these
were beyond their understanding. They peopled the earth with gods to be
propitiated and appeased. Everything was the act of a special
providence. From early times religion and witchcraft furnished the
chief subjects for the criminal code.
The penalties for the violation of the code were always severe,
generally death, and by the most terrorizing ways. No other crime could
be so great as to arouse the anger of the gods, and naturally no other
conduct should demand so severe a penalty as calling down the wrath of
the gods. This would fall not only upon the offending man, but upon the
community of which he was a part. Even as man developed in knowledge and
civilization, this sort of crime continued to furnish the greater
proportion of victims and the most cruel punishments. Torture of the
most fiendish sort was evoked to catch offenders and extort confessions.
Difference of religious opinions was the worst crime. The inquisition
became an established thing. Sometimes a nation was almost wiped out
that heretics should be killed and heresies destroyed. The heretic was
the one who did not accept the prevailing faith. The list of victims of
punishment on account of religion, witchcraft, sorcery and kindred laws
has in the past no doubt been larger than for any other charges.
This kind of laws always called out the greatest zeal in their
enforcement. To the religious enthusiast nothing else was of equal
importance. It involved not only the life of man on earth but his life
through all eternity. Our statutes today are replete with such crimes,
but the punishments have been lessened and, as a rule, communities will
not enforce them. But laws against blasphemy, working on Sunday, and
Sunday amusements of all sorts, are still on the books and enforced in
some places. A large organization and an influential and aggressive part
of the Christian Church are insisting that these laws shall be enforced
to the limit and that still others shall be placed among the statutes of
the several states.
The methods of inflicting the death penalty have been various, the
favorite ways being burning, boiling in oil, boiling in water, breaking
on the rack, smothering, beheading, crucifying, stoning, strangling and
electrocuting. Until the middle of the last century they were carried
out in the presence of the multitude so that all might be warned by the
example.
The number of crimes for which death and bodily torture have been the
punishment can scarcely be recorded, and if they could it would be of no
value. They would run into the hundreds and probably the thousands. A
large part of these crimes are now obsolete. Doubtless more men have
been executed for crimes they did not commit and could not commit than
for any real wrong of which they were guilty.
Prisons came into fashion later than the death penalty, and as a form of
punishment have gradually come to take the place of most death
penalties. Prisons in the past have been loathsome places and not much
better than death. Prisoners have been packed together so closely that
life was almost impossible. To incarcerate victims in prisons has
brought terrible punishment not only on the prisoners and their
families, but indirectly on the state. No doubt through the years
prisons have been gradually improved. Many of their terrors have been
banished. People have come to believe that even a prisoner should have
some consideration from the state. Penalties have likewise grown less
severe and terms have been shortened, but this course has not been
regular or constant; the public readily relaxes into hatred and
vengeance, and it is easy to arouse these feelings in men, since they
lie very close to the surface. A constant struggle has always been waged
by the humane to make man more kindly, and yet probably his nature does
not really change. A few months of frenzy may easily undo the work of
years.
So long as men punish for the sake of punishment, there will be a
disagreement between the advocates of long punishment and short
punishment, hard punishment and light punishment. From the nature of
things, there is no basis on which this can be determined. The only
thing that throws any light on the question is experience, and men can
always differ as to the lessons of experience. Neither do they remember
experience when feelings are concerned.
Punishment can deter only on the ground of the fear that flows from it.
Fear comes from things that are more or less unusual. Man has little
abstract fear of a natural death; it is so unavoidable that it does not
even figure in the ordinary affairs of life. Extreme punishments may
grow so common that few give them any concern. They probably are so
common now that the impression they make is not very great. Lighter and
easier punishments would have the same psychological effect. In many
cases a lenient punishment would also eliminate much of the hatred and
bitterness against the world that are common to all inmates of prisons.
XXIII
CAPITAL PUNISHMENT
The question of capital punishment has been the subject of endless
discussion and will probably never be settled so long as men believe in
punishment. Some states have abolished and then reinstated it; some have
enjoyed capital punishment for long periods of time and finally
prohibited the use of it. The reasons why it cannot be settled are
plain. There is first of all no agreement as to the objects of
punishment. Next there is no way to determine the results of punishment.
If the object is assumed it is a matter of conjecture as to what will be
most likely to bring the result. If it could be shown that any form of
punishment would bring the immediate result, it would be impossible to
show its indirect result although indirect results are as certain as
direct ones. Even if all of this could be clearly proven, the world
would be no nearer the solution. Questions of this sort, or perhaps of
any sort, are not settled by reason; they are settled by prejudices and
sentiments or by emotion. When they are settled they do not stay
settled, for the emotions change as new stimuli are applied to the
machine.
A state may provide for life imprisonment in place of death. Some
especially atrocious murder may occur and be fully exploited in the
press. Public feeling will be fanned to a flame. Bitter hatred will be
aroused against the murderer. It is perfectly obvious to the multitude
that if other men had been hanged for murder, this victim would not have
been killed. A legislature meets before the hatred has had time to cool
and the law is changed. Again, a community may have capital punishment
and nothing notable happens. Now and then hangings occur. Juries acquit
because of the severity of the penalty. A feeling of shame or some
bungling execution may arouse a community against it. A deep-seated
doubt may arise as to the guilt of a man who has been put to death. The
sentimental people triumph. The law is changed. Nothing has been found
out; no question has been settled; science has made no contribution; the
public has changed its mind, or, speaking more correctly, has had
another emotion and passed another law.
In the main, the controversy over capital punishment has been one
between emotional and unemotional people. Now and then the emotionalist
is reinforced by some who have a religious conviction against capital
punishment, based perhaps on the rather trite expression that "God gave
life and only God should take it away." Such a statement is plausible
but not capable of proof. In the main religious people believe in
capital punishment. The advocates of capital punishment dispose of the
question by saying that it is the "sentimentalist" or, rather, the
"maudlin sentimentalist" who is against it. Sentimentalist really
implies "maudlin."
But emotion too has its biological origin and is a subject of scientific
definition. A really "sentimental" person, in the sense used, is one who
has sympathy. This, in turn, comes from imagination which is probably
the result of a sensitive nervous system, one that quickly and easily
responds to stimuli. Those who have weak emotions do not respond so
readily to impressions. Their assumption of superior wisdom has its
basis only in a nervous system which is sluggish and phlegmatic to
stimuli. Such impressions as each system makes are registered on the
brain and become the material for recollection and comparison, which go
to form opinion. The correctness of the mental processes depends upon
the correctness of the senses that receive the impression, the nerves
that transmit the correctness of the registration, and the character of
the brain. It does not follow that the stoic has a better brain than the
despised "sentimentalist." Either one of them may have a good one, and
either one of them a poor one. Still, charity and kindliness probably
come from the sensitive system which imagines itself in the place of
the object that it pities. All pity is really pain engendered by the
feelings that translate one into the place of another. Both hate and
love are biologically necessary to life and its processes.
Many people urge that the penalty of imprisonment for life would be all
right if the culprit could be kept in prison during life, but in the
course of time he is pardoned. This to me is an excellent reason why his
life should be saved. It is proof that the feeling of hatred that
inspired judge and jury has spent itself and that they can look at the
murderer as a man. Which decision is the more righteous, the one where
hatred and fear affect the judgment and sentence, or the one where these
emotions have spent their force?
Everyone who advocates capital punishment is really ashamed of the
practice for which he is responsible. Instead of urging public
executions, the most advanced and sensitive who believe in killing by
the state are now advocating that even the newspapers should not publish
the details and that the killing should be done in darkness and silence.
In that event no one would be deterred by the cruelty of the state. That
capital punishment is horrible and cruel is the reason for its
existence. That men should be taught not to take life is the purpose of
judicial killings. But the spectacle of the state taking life must tend
to cheapen it. This must be evident to all who believe in suggestion.
Constant association and familiarity tend to lessen the shock of any
act however revolting. If men regarded the murderer as one who acted
from some all-sufficient cause and who was simply an instrument in an
endless sequence of cause and effect, would anyone say he should be put
to death?
It is not easy to estimate values correctly. It may be that life is not
important. Nature seems extravagantly profligate in her giving and
pitiless in her taking away. Yet death has something of the same shock
today that was felt when men first gazed upon the dead with awe and
wonder and terror. Constantly meeting it and seeing it and procuring it
will doubtless make it more commonplace. To the seasoned soldier in the
army it means less than it did before he became a soldier. Probably the
undertaker thinks less of death than almost any other man. He is so
accustomed to it that his mind must involuntarily turn from its horror
to a contemplation of how much he makes out of the burial. If the
civilized savages have their way and make hangings common, we shall
probably recover from some of our instinctive fear of death and the
extravagant value that we place on life. The social organism is like the
individual organism: it can be so often shocked that it grows accustomed
and weary and no longer manifests resistance or surprise.
So far as we can reason on questions of life and death and the effect
of stimuli upon human organisms, the circle is like this: Frequent
executions dull the sensibilities toward the taking of life. This makes
it easier for men to kill and increases murders, which in turn increase
hangings, which in turn increase murders, and so on, around the vicious
circle.
In the absence of any solid starting point on which an argument can be
based; in the absence of any reliable figures; in the absence of any way
to interpret the figures; in the absence of any way to ascertain the
indirect results of judicial killings, even if the direct ones could be
shown; in the impossibility through life, experience or philosophy of
fixing relative values, the question must remain where it has always
been, a conflict between the emotional and unemotional; the
"sentimental" and the stolid; the imaginative and the unimaginative; the
sympathetic and the unsympathetic. Personally, being inclined to a
purely mechanistic view of life and to the belief that all conduct is
the result of certain stimuli upon a human machine, I can only say that
the stimuli of seeing and reading of capital punishment, applied to my
machine, is revolting and horrible. Perhaps as the world improves, the
sympathetic and imaginative nature will survive the stolid and selfish.
At least one can well believe that this is the line of progress if there
shall be progress, a matter still open to question and doubt.
XXIV
STIGMATA OF THE CRIMINAL
Lombroso and others have emphasized the theory that the criminal is a
distinct physical type. This doctrine has been so positively asserted
and with such a show of statistics and authority, that it has many
advocates. More recent investigations seem to show conclusively that
there is little or no foundation for the idea that the criminal is a
separate type. Men accustomed to criminal courts and prisons cannot
avoid being impressed with the marks of inferiority that are apparent in
prisoners. Most prisoners are wretched and poorly nourished, wear poor
clothes and are uncared-for and unkempt. Their stunted appearance is
doubtless due largely to poor food, the irregularity of nourishment, and
the sordidness of their lives in general. One also imagines that a
prisoner looks the part, and in his clothes and surroundings he
generally does. It is hard for a prisoner to look well-groomed; he has
neither the opportunity nor the ambition to give much attention to his
personal appearance. The looks of the prisoners are of little value.
Nothing but actual measurements could give real information, and these
do not sustain the theory of their being different from other men.
It is not possible to see how the criminal can be of a distinct physical
type. Criminality exists only in reference to an environment. One cannot
be born a criminal. One may be, and often is, born with such an
imperfect equipment that he cannot make his adjustments to life, and
soon falls a victim to crime and disease. All that a physical
examination could do would be to show the strength or weakness of the
body and its various organs. What may befall him will depend partly on
the kind and quality of his mind and nervous system, and partly on the
physical structure and the kind of experiences that life holds in store
for him.
No doubt thorough psychological examinations would reveal something of
the brain, just as physical examinations certainly would determine the
strength and capacity of the body. This would be of material aid in
determining the kind of environment that should be found for the
individual, and if such environment could be easily found it would avert
most of the calamities which beset the path of the youth.
Something can be told of a person's character from his eyes, the
expression of the face and the contour of the head, but this information
is very misleading as our everyday experience shows. It is not
necessary to find stigmata in the prisoner to know that he was born the
way he is. One's character must be fixed before birth whether Nature
marks it on one's head or not. Likewise every particle of matter moves
from stimuli and obedience to law, regardless of whether it shows in the
face or not. The strong are no more exempt from the law than the weak.
All the difference is that they can longer and more easily avoid
disaster.
Everyone is in the habit of forming a hasty opinion of another by
reading his face and noting his expression. But the indication given by
facial expression is mainly the product of the life that has been lived,
and tells something of the part that the hidden emotions have played on
the body.
It has been generally believed that mind has its seat in the brain and
the nervous system. Later investigations, however, seem to show that it
is the product of the whole physical organism. There is no chance to
measure or weigh or still less assay the qualities of the machine. It is
certain that the quality of the mind depends very little upon either the
contour or size of the skull.
About all that can be learned of the mind and the character of the man
must be gathered from the manifestation of the machine. It is shown by
his behavior in action and reaction. This behavior is caused by the
capture, storage and release of energy through the ductless glands.
A defective mechanism either inherited or acquired through imperfectly
balanced glands will inevitably produce an imperfect mind and defective
conduct. This it will be bound to do because the body is the mind.
As a matter of fact, no man is branded physically with the "mark of
Cain." If criminology were so simple it would not be difficult to
handle. The manifestations of the human machine are infinite and only
patience and careful study can find the points of weakness and of
strength. That all brains and bodies have both is beyond dispute. No
physical human structure was ever put together where the organs were
equally strong to do the work assigned to them. Some part of the body
always needs watchfulness and repair and can never be depended upon in
emergencies. In times of overstress and strain, the defective organ or
organs will manifest their weakness. The intricate nervous system and
the brain, the unseen instincts and emotions likewise do not work
perfectly; but as a rule the ones that underwork or overwork cannot be
seen by a physical examination. It generally requires great subtlety to
find them, and careful treatment and environment to make the machine
work fairly well in spite of these imperfections. This could be
provided; in most cases the machine could be placed in an environment
where it would work fairly well; but instead of this all the effort
that is made to keep the machine in shape is a threat of the jail if it
goes wrong; it is then left to run itself without help or assistance of
any kind.
While examinations of the head do not show marked differences between
prisoners and others, a great distinction is seen between the general
proportion and the degrees of nourishment of prisoners and those not
accused of crime. Nothing is more common than the weak and underfed
condition of the delinquent and the criminal. This needs no expert
examination. It is obvious to all. The poor, scanty clothes and personal
belongings corroborate the fact that the accused is poor and has not
enough to eat or wear, nor anything but the most scanty shelter. In
addition to these facts, he is almost always ill. A report recently
published, based on investigations by a special committee of the New
York State Commission of Prisons, shows that in the New York Reformatory
only eight per cent passed the required physical examination. In the
penitentiary, where the average age was higher, only five per cent
passed the test. In the work house--the home of the "down and
outs"--only one per cent passed. The health tests employed were those
for admission to the army. It was likewise found by the same commission
that of those in good health or fair physical condition, eighty-five per
cent were self-supporting, while only eighteen per cent of those in
poor physical condition took care of themselves.
Disease and ill health, when found so generally, are in themselves
indications of a defective system, and such machines are constantly
exposed to temptation. Their needs are ever present and their poverty
great. Sickness and disease weaken or destroy such inhibitions as the
unfortunate are able to build up, and they readily yield to crime.
XXV
THE GOOD IN CRIMINALS
The criminal is confronted in court with an indictment charging him with
a violation of the law. He is a human being, like all others, neither
perfect nor entirely worthless. He has some tendencies and inclinations
which the world calls good for lack of a better term, and some that it
calls bad for the same reason. In this he is like the jury and the
judge. The strength of the different tendencies is not the same in any
two machines. The judge and jury are interested in determining whether
he is good or bad; that is, better or worse than they themselves. In
theory he is tried on the charges contained in the indictment.
In most cases by a constant stretching of the rules of evidence his
whole life may be involved. That is, proof may be offered of any act of
delinquency that constituted a violation of the law, if in any way
similar, or in any way connected with the one charged in the indictment.
He cannot meet these charges by proving the acts of kindness and charity
and real worth that are rarely absent in any life. The proceedings show
how bad he is, not how good. He may be able to call witnesses to show
that up to the time of the bringing of the indictment his reputation for
honesty was good; but he cannot show that he supported his grandmother,
or helped his aunt, or educated his younger brother, or gave his money
to the poor. All the good is irrelevant to the issue. This does not
prove that he did not commit the act. It might clearly prove whether on
the whole he should go to jail. Through this process he feels that the
law and proceedings are unfair and that he is condemned, when, in fact,
he is as good as those who judge him. Neither can he show the
circumstances that hedged in his way nor the equipment with which he
entered life. Under the legal theory that he is "the captain of his
soul," these are not material to the issue. Neither can he show the
direct motive that caused the conduct. It may have been a motive that
was ideal, but the question involved is, did he violate the law?
He is convicted and sent to prison. As a rule, he will some time be
turned back into the world. He needs careful treatment, involving
instruction and an appeal to that part of his nature which may awaken
sympathies and produce emotions that will make him more of a social
being on his return to the world. In the loose language of the world, it
is necessary for him not only to learn how to curb the evil but how to
increase the good. His imagination should be cultivated and enlarged.
The responses to better sentiment should be strengthened. This can be
furthered only by skilled teachers who are moved by the desire to help
him. The process should be similar to a hospital treatment. Instead of
this, he is usually surrounded by men of little intelligence or
education, men who have no fitness for the task; he is governed by
strict rules, all of them subjecting him to severe penalties when
violated. Every action in the prison reminds him of his status. With the
exception of a few strong men who need suffering for their development
it can have but one result. He must come out from prison poorer material
than when he went in. There are only two reflections that can keep him
out of trouble in the future: the remembrance of the past and the fear
that a similar experience might come to him again.
When it is remembered that the greatest enemy to happiness and life is
fear; when we realize that the constant battle of the primitive man was
with the fear that peoples the unknown with enemies and dangers; when we
remember that in some way, fear of poverty, of disease, of disaster, of
loss of friends and life is the ever-present enemy of us all, it is
evident that nothing but harm can come from the lessons of fear that are
drilled into the victim in prison. Life furnishes countless ways to be
kind and helpful and social. It furnishes infinite ways to be cruel,
hard and anti-social. Most of these anti-social ways are not condemned
by the law. Whether the life is helpful and kindly or hard and selfish
can never depend upon the response of an organism to fear, but upon the
response of an organism to the kindlier and more humane and sympathetic
sentiments that to some extent at least inhere in the constitution of
man.
It is a common thing for prisoners, even during the longest term, to be
more solicitous about mother, child, wife, brother or friend than about
themselves. It is common for them to deny themselves privileges,
presents or favors to help other inmates. The consideration and kindness
shown by unfortunates to each other are surprising to those who have no
experience with this class of men. Often to find real sympathy you must
go to those who know what misery means. Pride and coldness are usually
due to lack of understanding, and life alone can bring understanding.
Every intelligent man engaged in efforts to improve and help either
criminals or children or any others, knows the need of an appeal to what
passes as the better nature. Help does not come so much from directly
inhibiting the bad as by extending the area of the higher emotions. To
pull up weeds in a garden without planting something in their place is a
foolish task. The human being is like the garden. Something must grow in
the soil. If weeds are pulled up and nothing planted Nature will grow
more weeds. Some feelings and emotions always possess every person. The
best that is incident to the machine should be found and this be
cultivated and extended until it dominates the man. Courts and prisons
have no machinery to cultivate the best in their victims; they are
always looking for the worst, aiding and promoting it until the prisoner
is driven to hopelessness and despair.
XXVI
THE DEFECTIVE AND INSANE
It is almost hopeless to bring any system or order out of the chaos that
prevails in the discussion of the insane, the defective, the moron, and
the feeble-minded. The world has so long believed that man is a
specially created animal and that he does wrong from free choice, that
much more time and investigation are necessary before sane and
scientific theories can be formulated on this subject.
It has been a great many years since any semi-intelligent man believed
that all sorts of physical abnormalities were due to one cause and could
be cured by one method, and yet the prevailing opinion now, even among
the fairly educated, is that all sorts of abnormal conduct are due to
one cause, perversity and wickedness, and should be treated with only
one prescription, punishment. Scientific men indeed have long known that
there were causes for the abnormality of conduct and that there were
various more or less satisfactory remedies for many cases. Still the
time that scientists have worked on the problem is short and the data
imperfect, and many years of patient study will be needed before there
can be worked out the broad theories of responsibility for and treatment
of crime which will replace the long accepted doctrines of original sin,
and the expulsion of devils from the wicked by cruelty and punishment.
By far the largest part of the population of prisons is made up of the
insane, feeble-minded, morons, defectives or victims of diseases that
seriously influence conduct. This is especially shown by the increased
percentage of the clearly defective that are repeaters, over those in
prison for their first offense. There is no lack of statistics as to the
various groups of defectives, but these figures cannot be reconciled. No
two authorities agree as to percentages; the classifications are more or
less uncertain; the dividing lines between the different groups are
vague, one class easily fading into another. The investigations have
largely been made by those not trained for the work, and above all the
conclusions as to treatment are at variance, doubtful and necessarily
not yet satisfactory. That the clearly insane and the plainly
feeble-minded should not be punished would doubtless be admitted by all
who speak in public or write for others to read. Many persons speaking
in private, acting on juries and connected with the machinery of
"justice" say that these should be punished like the rest. Still for a
starting point, it may be assumed that most men would agree that these
classes should be restrained rather than punished.
The chief difficulty is that between the most violently insane and the
least emotional man are infinite numbers of gradations blending so
closely that no one can mathematically or scientifically classify all
the various individual units. While there are cases of insanity that can
be clearly traced to injury or disease, the degree of sanity in most
cases is still impossible to determine. Most insane people are sane on
some things, generally on most things and are sane a part or most of the
time. The periods of sanity and insanity can be distinguished only by
conduct. How far any specific insanity may impair the brain and affect
the inhibitions, is impossible to foretell.
When it comes to the defective, the problem is still more difficult. No
two persons have the same degree of intelligence. Some are clearly
lacking in mentality. Others are manifestly intelligent. The great mass
range all along between these extremes. Various arbitrary rules have
been laid down to aid in classifying different grades of defectives.
Generally the feeble-minded can be sorted out. The defectives are
supposed, if young, to be two years or more below the normal scholar in
development; if older, three or more below. Their standing is fixed by
asking certain test questions. Furthermore, a list of questions has
been commonly used for an "intelligence test." These queries have
nothing to do with the school work of the child, but are supposed to
reveal only his native intelligence.
No doubt in a broad way such tests throw considerable light on the
mentality of those who submit to the examination. Ordinary experience,
however, shows that they cannot be fully relied on. Some children
develop very slowly, others very rapidly. Some are much quicker, others
slower in their perceptions and responses. No two children or grown-ups
have the same turn of mind. One may be very bright in business affairs
and very dull in books. One may be clever in arithmetic and hopeless in
grammar. One may have marked mechanical ability and no taste for school.
These tests are only valuable if given by well qualified examiners, and
the method is so new that few have had the chance to thoroughly prepare
for the work. For the most part the tests are given by people who are
wholly unfit for so important a task.
Quite aside from all this it is not certain that intelligent people are
necessarily safer to the community than stupid ones. There is always a
tendency for the stupid to stick to the beaten path. Intelligence
generally means individuality and divergence. On the other hand, the
stupid and subnormal are moved much more directly by instincts and
emotions. Their lack of imagination, poor perceptions and want of
reasoning or comparing power, make their self-control weak. In sudden
stress or an unusual situation, they are easily swept away and respond
directly to instinct and feeling. In short the urge of the primitive
through the long history of the race cannot be modified sufficiently by
the new structure that civilization has built around more intelligent
people.
The various distinctions between the feeble-minded and the normal must
not be taken with too much confidence. As the motives that govern man
are understood, it is easy to see that intelligence is a strong factor
in regulating behavior. When it is seen also that at least the larger
part of the inmates of prisons are subnormal and at the same time
without property or education, it is evident that all these handicaps
are dominating causes of conduct. This position is made still more
certain by the further evidence that nearly all of the repeaters in
prison are of this type.
Most states already make some allowances in their criminal codes for the
defective and the insane. This is really an acknowledgment that the
activity of the human machine is governed by its make and environment.
The history of the treatment of the insane serves to show the
uncertainty of all man's theories as to punishment and responsibility.
Doubtless at a very early age in the history of man it was discovered
that there were people who acted so abnormally that they could not be
classified with the great mass. Such persons were supposed to be
possessed of devils or demons, and various incantations and practices
were used to drive the devils out. Failing in this they were put in
prison, loaded with chains or put to death because of their danger to
the community.
In other communities, however, insane persons were thought to be
possessed of special gifts. God had come nearer to them than to common
mortals, and they were seers or prophets endowed with a portion of the
divine power.
Either view of the problem is explainable by the lack of scientific or
exact knowledge that marks early societies. Still these societies relied
on punishments just as much as our present law-makers and enforcers,
possibly more, because presumably less enlightened. Further
investigation and experiences with the insane have convinced even the
most casual observer that they function somewhat differently from other
people; there is not the same certainty between stimulus and response.
What they will do and how they will act under given conditions cannot be
foretold with anything approaching the exactness that is possible with
the normal.
The origin of the insanity in many cases is clearly traceable: sometimes
to lesions; sometimes to illness; sometimes to the mode of life;
perhaps more is due to heredity than to any other cause. At any rate in
theory the civilized world has long since ceased to hold the insane
criminally responsible for their acts. This applies only to the clearly
insane. The border-line is impossible to find, and many cases are so
difficult to classify that there is often a doubt as to where the given
patient belongs. In times when the crowd is mad with the mob psychology
of hatred, people are impatient of insanity and do not care whether the
accused was sane or not at the time of the commission of the act. Many
insane are put to death or sentenced to long terms of punishments. Jails
and other penal institutions are constantly sorting their inmates and
finding many who were clearly insane at the time their sentences began.
Society is beginning to find out that even where there is no marked
insanity, many are so near idiocy that they cannot fairly be held
responsible for their acts. The line here is just as vague and uncertain
as with the insane. Thus far, society has not provided adequate
protection for the public against this class; neither has it properly
cared for these unfortunates. It has simply excused their conduct,
except in cases where some act is so shocking that it arouses special
hatred, and then it freely declares that it makes no difference whether
the accused is a defective or not; he is of no value to the world and
should die. Many of this class are put to death. I am inclined to think
that most of those executed are either insane or serious defectives; and
those who say that such people are of no value are probably right. It is
perhaps equally true that few if any are of value, for when value is
considered we are met with the question: "Value to whom, or for what?"
All you can say of any one is that he wishes to live, and has the same
inherent instincts and emotions toward life as are common to all other
men.
Even the legal tests as to insanity and feeble-mindedness are neither
logical nor humane. Often the definition is given by courts that if one
is able to distinguish between right and wrong, he is sane within the
meaning of the law. This definition of insanity is utterly unscientific.
If the insane or the defective above an idiot is questioned specifically
whether certain distinct things are right or wrong, he can generally
give the conventional classification. Often he can tell much better than
the intelligent man, for he has been arbitrarily taught the things that
are right and wrong and has not the originality or ability to inquire
whether the classification is right or how far circumstances and
conditions determine right and wrong.
Conduct is ruled by emotion, and actions depend not upon whether one has
learned to classify certain conduct as right or wrong, but whether from
education, life or otherwise, the thought of a certain act produces a
quick and involuntary reaction against doing it. No one believes or
feels that it is always really wrong to violate some statutes, and most
men indulge in many practices that are wrong and repulsive but not
forbidden by the criminal code.
Furthermore, the insane and subnormal are influenced by punishment and
fear. Even the animal responds to both. It is possible that in many
instances those who are insane and subnormal are influenced by fear more
than the intelligent and normal. The most that can be said is that they
have not the same power of resistance that is given stronger men. This
means only that they have not stored up the experiences of life so well;
that their nervous system has not so well conveyed impressions, or that
their power of comparison is less; this, in turn, means that it will
take greater stress or harder environment to overcome the inhibitions of
the sane than the insane. The treatment of the insane and the defective
is an acknowledgment that all conduct comes from a direct response of
the machine to certain stimuli and the machine can act only in a way
consistent with its mechanism.
In other cases, the courts often recognize the strength of hereditary
defects in nullifying environment with its strict ideas of right and
wrong. The kleptomaniac is generally recognized as being a well-defined
class of the insane. Most of the shop-lifters are women. This is
especially a female crime. It is useless to explain why. It is not a
daring crime; it is secretive in its nature; it requires more stealth
than courage; it especially appeals to women on account of their taste
for the finery exhibited at stores. The kleptomaniac, however, is
generally a rich or influential woman. She steals something she does not
need, and she is therefore held to be a kleptomaniac and not
responsible.
The poor woman who steals something she actually needs is not a
kleptomaniac. I have no doubt that the rich woman who could not resist
shop-lifting is a kleptomaniac. I have just as little doubt that the
poor woman, with an imperfect make, found her environment such that she
was forced to act as she did. If a rich woman is irresponsible and
cannot resist when she steals something she does not need, I can see no
reason why a poor woman is not likewise irresponsible when she takes
something that she needs or must have. The kleptomaniac finds herself in
a position where her emotions and her feelings are too strong for her
judgment and inhibitions. Everyone who acts must act from similar causes
or inducements. There is no special providence in the realm of mind.
There is no room for chance in any natural phenomenon. Possibly the
public will understand sometime, and law-makers and law-enforcers will
place crime and punishment on a scientific basis.
XXVII
SOCIAL CONTROL
Organizations and cults are forever coining new expressions that sound
"pat" and for this reason seem true. As a rule, these terms and phrases
are put in the shape of general statements that may or may not mean
something; but their "pat" sound is used to justify all sorts of
excesses and violations of individual rights. The term "social control"
is met everywhere now. It may imply much or little, according to the
construction of the users. It is meant at least to imply that somewhere
is lodged a power to bring under control or supervision the refractory
or evil elements of society for the well being of the whole. As a rule,
under this phrase anything is justified which seems in some way fit for
the community as a whole. The fact that the restraint interferes with
personal liberty seems to have no bearing on the matter. Social control
necessarily means that the majority of the members of a social unit
shall limit the freedom of action of the individual to conform to its
view. Of course, the majority has the right because it has the power. In
the discussion of political or philosophical questions, "right" means
little more or less than "power." A right must be based upon some custom
or habit with some power to enforce it, or it cannot be claimed. It can
never be enjoyed without the power to obtain it.
The relation of society to the individual has been one long conflict.
This is necessarily true because every human organism has instincts,
feelings and desires and is naturally impatient at any limitations
placed upon it unless self-imposed. On the other hand, organized society
functions to preserve itself, and if the activities of the individual
are hostile to this preservation the individual must give way. Theorists
of various schools are forever propounding social ideas, with the
positive assurance that, if followed, they would work automatically and
heal all social ills. But it must be evident that neither from history
nor philosophy can any such theory be proved. Between the extreme
anarchistic view that each person should be free of control by law, and
the extreme socialistic view of an extension of state organization until
all property and all industrial activity shall be administered by the
state and collectively owned, social life in its relation to the
individual is always shifting. No one can find the proper line, and if
there were a line it would forever change. On the one hand, the power of
the strongest element in social organization is always seeking to
enlarge the province of the state. On the other hand, the individual
unit following the natural instincts for its development is reaching out
for more freedom and life. When the theorists in each camp manage to
push so hard that both can no longer be maintained, the old organization
of society breaks up into new units, immediately to re-form in some new
way.
This struggle of contending forces is a prolific and unavoidable source
of crime. When organized society goes too far, the individual units
rebel and clash with law; when the units swing too far away from the
social organization and defy the power of the state, almost
automatically some sort of a new organization becomes the state. Whether
this new one discards all old forms and laws and acts without the
written law, is of no concern. It at least acts and sets limits to the
individual life. If it were possible for all legislative bodies to meet
and repeal all laws, the state would still remain; the people would live
and automatically form themselves into a certain order and protect that
order either by written law or vigilance committees. At least the people
would act together.
The majority generally has some religious creed, and to it this is all
important. This creed is made up of observances, such as holy days, the
support of the prevailing religion, the condemnation of witchcraft and
magic, and the like. These and other doctrines often have been enforced
upon those who have no faith in the regulations. The enforcement of
such laws in the past has been by the most drastic penalties and has
brought extreme suffering upon the world. No religious organization has
ever seemed willing to confine its activities to propaganda, teaching
and moral suasion; those methods are too slow, and the evils and
consequences of disbelief are too great. Laws of this drastic character
are still part of the penal codes of various states and nations, and
well-organized bodies are always strenuously seeking to extend the
application of such laws and re-enact at least a portion of the
religious code that has been outgrown.
Individuals have likewise found, or at least believed, that certain
personal habits were best for them, for instance, abstaining from
alcohol and tobacco in all forms. Not content with propaganda, they have
sought to force their views upon others, many of whom deeply resent
their interference.
It is not enough that certain things shall be best for the health and
physical welfare of a community. This does not justify the wise
law-giver in making them a part of the penal code. If so, the code would
be very long. No doubt coffee and tea, and perhaps meat, are injurious
to health. Most likely the strength of the community would be conserved
if regular sleeping hours were kept and if great modifications or
changes were made in dress. But this does not justify criminal statutes.
The code must take notice of something more than the general welfare.
Unless the end sought to be attained is very direct and plain and the
evil great so that a large majority believes in the law, it should be
left to education and to other voluntary social forces.
A large part of the community has always attributed many criminal acts
to intoxicating drinks. I am convinced that with such crimes as murder,
burglary, robbery, forgery and the like, alcohol has had little to do.
Petty things, like disorderly conduct, are often caused by intoxicating
liquor, and these land a great many temporarily in jail, but these acts
are really not criminal. Men have been temporarily locked up for
over-drinking. If over-eating had been treated the same as over-drinking,
the jails would often be filled with gluttons. As to health, probably
the glutton takes the greater chance. A very large percentage of deaths
would have been materially delayed except for excessive eating. The
statements ascribing crime to intoxicating drinks have generally been
made by those who are obsessed with a hatred of alcohol. As a rule if
one lands in prison and has not been a total abstainer, his downfall is
charged to rum. Statistics have been gathered in prison often by
chaplains who, in the main, are prohibitionists and interested in
sustaining an opinion. The facts are mainly furnished by inmates of
prisons, a poor source from which to gather facts and draw deductions,
especially as to the cause of crime. Prisoners are interested in only
one thing, and that is getting out. They understand perfectly well what
kind of statistics the chaplain wants and these are given. It is the
nature and part of the protective instinct of everyone to find some
excuse for his acts. Alcohol has always furnished this excuse. It is a
good alibi; it is readily believed, always awakens sympathy and at once
turns the wrath of a provincial community from the inmate of the prison
to the saloon-keeper.
Even if prisoners were unlike others and wished to tell the truth about
themselves, they have not the art and understanding to give the causes
of their plight. No man, however intelligent, can do this, least of all
one of inferior brain power, little education and not trained in dealing
with facts. The prison inmate, like everyone else, knows only that he
followed what seemed to him the line of least resistance, and that every
step in his course was preceded by another and that there was a reason
for what he did. Most likely he does not know the reason. In the hours
of his despair he goes over his life in every detail, at every
crossroad, and at all the forks where paths branch, always wishing he
had gone the other way.
While this is true, he could know neither the dangers that lurked along
other roads, nor the fact that he had no choice about the way he went.
All he knows is that he stumbled along a certain path which led to
disaster. All the paths of life lead to tragedy; it is only a question
as to how and when. With some, the evil day is longer delayed and the
disaster seems not so hard to bear.
In a sense, all the classifications as to the cause of crime are
misleading and worthless. Your existence is the result of infinite
chances and causes appalling in their number. Out of a thousand eggs,
one is fertilized by perhaps one of a billion sperms, and from this you
have been given life. Each of your parents and grandparents and so on,
back for two hundred thousand years of human ancestors, and back to
infinity before man was born, was the result of the same seemingly blind
and almost impossible hazard. The infinitely microscopic chance that
each of us had for life cannot be approximated. All the drops of water
in the ocean, or all the grains of sand upon the shore, or all the
leaves on all the trees, if converted into numbers and used as a
denominator, with one for a numerator, could hardly tell the fraction of
a chance that gave us life.
The causes of human action are infinite, and no cause stands isolated
from the rest. In the first place we cannot tell the meaning of the word
"cause" when applied to a problem of this sort. In law the ordinary
rule for a "proximate cause" is "an event or happening in the direct
line of causation, not too remote, that has led to the result, and
without which the result could not have happened." But this means
nothing. Infinite are the causes which have led to every act, and
without each one of the infinite causes the act could not have resulted.
If it be something that affected a life, and had it not happened then
the life would have drifted somewhere else. In the end it would have
reached the same harbor of Nirvana. But the life would not have been the
same. A drop of water falls on the Rocky Mountains, it trickles along,
going around through pebbles and grains of sand; it joins with others,
meets trees and roots, winds and twists perhaps for hundreds, even
thousands of miles before one can tell by what channel it will reach the
sea. Infinite accidents determine even which sea it shall finally reach.
The most radical advocates of social control are never at a loss to lay
their fingers on causes or to know what would have happened if something
else had not happened; they never hesitate to forbid seemingly innocent
acts because they are certain that evil will follow. They are
contemptuous of one who wants to preserve the semblance and spirit of
freedom.
Life has none too much to offer where men are left to control
themselves, and to be forbidden to follow your inclinations and desires
because sometimes they may result disastrously, is to give up what seems
to be a substance for what is most likely a shadow.
All we can tell about the man whom we are pleased to call a criminal, is
that he had a poor equipment and met certain influences, motives and
conditions, called environment, on his journey. We know that at a given
time the journey has reached a certain point; it has met disaster or
success, or most likely indifference. At a certain point he has reached
a prison or is waiting for the hangman to tie a noose around his neck.
Is heredity responsible? We know of many who apparently started out with
an equipment no better. These may be business men and congressmen and
deacons in the church. While we do not know and cannot know the trend
and relative strength of the instincts in the various machines or the
emotions that these and the whole equipment produced, apparently an
equipment as poor as that of the criminal has met success, or at least
kept its possessor out of jail. Was it then his environment? We have
known men placed in the same environment, perhaps a brother, conquering
difficulties and bringing success from what seemed to promise certain
defeat. Why did one fail where the other conquered? Was it the "will"
that caused one to be the "captain of his soul"? What then is the
"will" and who gave the weak will to one and the strong will to another?
And, if each was born with a certain "will" or the capacity to make a
certain "will", who then is responsible for the result? Or, does the
word "will" mean anything, as usually applied?
All we can tell is that a certain equipment met a certain environment,
and the result was early disaster. A change of even the slightest factor
of environment might have saved the victim from hanging, so that he
could die a respectable and peaceful death from tuberculosis or cancer.
After all, the inevitable tragedy that in some form marks the end is not
so important as the sensations and experiences that one meets on the
road. Life is hopeless and colorless indeed if these experiences are
chosen for the wayfarer and the sensations are enforced or denied, as
the case may be. Nothing recompenses the individual for the denial of
his chance to follow his own path.
XXVIII
INDUSTRIALISM AND CRIME
It was not until about the middle of the eighteenth century that the
desire for the creation and accumulation of property began to rule the
world. Up to that time such small amounts of property as man needed or
coveted had either been produced in a simple manner by himself or taken
in the easiest way.
This new passion has made a large part of the modern criminal code. A
world of warriors, religious zealots and pastoral people could not
readily adapt themselves to the change. Criminal codes were lengthened;
methods of getting property and keeping it were provided for, and other
ways condemned. It must be obvious that it was not easy for man with his
age-old machine, his inherited institutions and his ancient folk-ways,
to adjust himself rapidly to the change. New conditions and laws created
new criminals.
With the growth of the factory system and accelerated industrial
development, an overweening desire for material things was awakened. As
neither individuals nor societies can be possessed of more than one
overpowering emotion at a time, the devotion to property naturally
weakened religious fervor. Religion became more an abstract belief and a
social organization than a vital thing affecting life and conduct. Even
before this time there was growing up in the world a protest against the
religious superstition that had led to the cruelties of the past. The
scientist and the modern philosopher were making their contributions to
the world of thought, and these contributions were slowly affecting life
and conduct.
A doubt of old creeds and doctrines and faiths was coming over the minds
of men. Social conventions were loosening, new customs and habits were
becoming folk-ways. In short, society and life were growing more fluid
and adaptable. The growth of property holdings created new desires and
new temptations. The accumulation of large fortunes brought envy and
hatred and ambition. The rise of industries built the large cities, with
palaces on one hand and hovels on the other. The vast inequality of
wealth and the growth of workers' organizations, together with the
spirit of skepticism which activity always brings, caused large numbers
to doubt the justice of property rights, the utility of many
institutions and the possibility of radical change by social
organization. It is perfectly evident that all of this movement brought
more conflict between social units, a constant lengthening of the
criminal code to protect the interests of the controlling powers, an
increase of prisons, and an apparent if not a real increase of crime.
Nothing but a strong government can long endure great inequality of
wealth or social condition. The slaves of the past civilization were
kept in subjection by main strength and fear. This enslavement was aided
by the deep ignorance of the masses who had no means of information and
nothing but vague feelings of the injustice of their lot. Even then the
poor sometimes revolted, but such outbreaks were generally easily put
down by the sword. The growth of political power and industrial
independence has been accompanied by the constant conflict of social
forces. This means conflict with the law, and the law has always taken
its toll of victims.
New inventions and methods that bring power of any sort carry with them
social clashes, protests, bitterness, conflicts and violations of law.
The invention of gun-powder was the source of great conflict and still
continues to add to the inmates of prisons. From the first, the
far-reaching effects of high explosives were seen by the wise, and
firearms were permitted only in the hands of those who could be depended
upon to support the state. Gradually through the needs of the rulers in
war they were given to the poor. When the American Revolution separated
us from Great Britain, the spirit of democracy and revolt was strong in
the world. A body of peasants had gained independence over the strongest
nation on earth. This body, through its delegates, provided in the
Constitution of the United States that the people should never be
forbidden to bear arms. The cheap production of firearms placed them in
the hands of all who wished to buy. This aided feuds and brawls. It also
gave strength to the burglar and robber.
America was fast becoming a manufacturing and commercial nation. The
accumulation of property was greater, and the inequalities perhaps more
marked than in any other land; likewise the poor were more independent.
Gradually we came to rely more and more upon the power of law and the
force that goes with it to preserve the old order. Legislatures and city
councils all over the United States began to limit and forbid carrying
firearms. The Constitution of the United States was held no impediment
to this legislation. Gradually laws have forbidden the carrying of guns
by the common man, and these laws are growing stronger every year. In
many states robbery with a gun may mean life imprisonment, while the
mere carrying of a revolver is a serious offense. The passage of these
drastic laws and the number of prison inmates confined for these
offenses show that the invention and use of firearms has affected crime,
and likewise that the government is constantly growing more doubtful of
the common man.
Civilization largely has to do with the creation and protection of
property. Although it is related to literature, architecture, politics,
art and the like; even these things if not actually rooted in property
are stimulated or affected by property. Civilization has created new
crimes and new ways to commit crime. It has likewise created many wants
and desires that furnish the motive power of property crimes. Each new
invention of civilization adds to these needs and these desires,
increases the power of committing crime, and necessitates stricter
measures to prevent it. Civilization has likewise created many new
outlets for the emotions, strengthened old ones, weakened others and
added to the complexity of life. It has imposed added strain and stress
upon man's nervous system and through this has caused the abnormalities
and excesses that are either crimes or lead to crimes.
Civilization has created the big cities; in other words, the powers and
forces that made civilization have made the big cities. The invention
and development of the railroad has taken men from the air and sunlight
and comparative freedom of motion of the country and the small village,
and placed them in an atmosphere not really fitted for normal animal
life, especially the life of the young. It has likewise stimulated crime
by offering the opportunities and making the suggestions that are
potent factors in crime. In country and village life everyone was known,
the smallest detail of every life was an open book. This fact furnished
a moral restraint to the individual and likewise made it hard for him to
violate the rules of the game. The opportunities for collecting large
numbers of people who might encourage each other with their conversation
and association were very few in rural life. The man who would violate
the law must do it alone. Not only this, but he must take his first
steps almost without suggestion or aid. This confined criminal conduct
largely to the feeble-minded and the seriously defective, and even these
could generally live in a country atmosphere where life is simple and
easy, without serious danger to themselves or others.
The great city with its swarms of people, its wealth and poverty, its
unhealthy atmosphere, its opportunities for everyone to have many
associates and still be lost to the community at large, makes irregular
lives not only easy, but almost necessary to large numbers of men.
Civilization has no doubt created crime as it has created luxury,
wealth, refinement and ease. Much luxury has always led to deterioration
and decay and is doubtless leading that way now.
One of the latest products of civilization that has had a marked effect
on crime is the automobile. Stringent laws are on the statute books of
all states against stealing automobiles, yet stealing and selling
automobiles is a flourishing and growing business. A large percentage of
the boys in the juvenile courts of our cities are there for stealing
automobiles. Yet this is the work of a very short period. I do not mean
to say that many of the boys brought into court for stealing automobiles
would not have committed some other crime, if automobiles had not been
invented and come into general use, but I feel quite sure that many of
them are victims of the automobile madness alone.
The automobile is one of the latest manias and fashions that
civilization has provided. Almost no one is free from the disease.
Conservative business men must have motor cars; clerks and salaried
people who cannot afford them must get them; mechanics and professional
men who have no need for them, except that others use them, must
contrive to buy them. Automobiles are much more important today than
houses. Men go into debt and struggle for money to buy gasoline so that
they may drive somewhere for the sake of coming back. It has created a
psychology all its own, a psychology of movement, of impatience, of
waste, of futility. Men in Chicago start to drive to Milwaukee without
the slightest reason for going there; they travel the road so fast that
they could get no idea of the scenery even if there were something to
see. They hurry as if going for a doctor. They reach their destination
and then start back home. The specific desire that is satisfied by this
expense and waste is a new one, an emotion of no value in the life
processes and probably of great injury in life development. It is a
craze for movement, for haste, for what seems like change.
The automobile has made its list of criminals, and it is making them
every day. Probably it will continue to make them until the flying
machine is perfected, and then to some extent at least the airplane will
take its place.
The truth is that man is not adapted to the automobile. His reactions
are too simple; his inherent needs are not adjusted to the new life; he
has not been built up with barriers to protect him from this insidious
temptation which is claiming its victims by the hundreds every day.
The boy is perfectly helpless in the presence of this lure. He wants to
do what others do. He is by nature active and venturesome and needs to
keep on the move. The mechanism itself appeals to him. He wants to work
in a garage. He is anxious to be a chauffeur. He cannot resist an
automobile. No such temptation should be placed before a boy. It has
added a great deal to the responsibility of parents and teachers, and so
far they seem not to have been able to meet that responsibility in any
way. Aside from the boys' thefts it has played a great part in crime.
The doctor, the real estate agent, the business man cannot afford to be
without automobiles. No more can the burglar, the hold-up man, the bank
robber, if he would keep up to date. The automobile has raised the
robbery of country banks from a vagrant crime, infrequent and dangerous,
to a steady occupation coupled with a great deal of excitement and some
chance for profit. So far no one has ever suggested anything to
counteract or lessen the evil effects except to increase penalties. The
crimes committed with and for automobiles are a result of the conditions
of life. Out of a thousand men and boys, a certain percentage must
commit these crimes just as a certain percentage must die of
tuberculosis. The temptation is very great. The human equipment is not
strong enough in many people to withstand the temptation. They either
buy them when they cannot afford to own them, or they steal them, and
either way leads to disaster. No doubt men will some time become
adjusted to the automobile as they have become adjusted to the horse,
but until that time comes, it will demand its heavy toll of
unfortunates.
Not only, it seems to me, does the growth of civilization mean the
growth of crime, but that civilization likewise leads to decay. The
world has seen the result over and over again, but it cannot learn. Man
is an animal; the law of his being demands that he shall live close to
nature; he needs the outdoors, the country, the air; he needs to walk
and run; otherwise his digestive apparatus will fail, his brain power
will decay, and the strength of his legs will be impaired. Civilization
runs too much to stomach and nerves, and Nature will have revenge. To be
sure, the professional American rhapsodist points out that we are immune
from natural law because we have a chance to vote for presidents once in
every four years. But there are ample signs that Nature knows little
about political institutions or other man-made devices and that she will
have her way.
How much the natural limitations of man will permit him to learn and
understand; how far his instincts and emotional nature would allow him
to be controlled by knowledge, if he had it; what would be the results
to life if reason could control him, are pertinent questions that affect
all discussion and which may never be satisfactorily answered. It is
entirely possible that the student who tries to point out better ways
and teach better methods does it only to satisfy his own emotions and is
often conscious that it does nothing else. But, whatever the inducing
cause or result, given a brain and nervous system and the material that
civilization furnishes for reflection, these and other important
subjects will be interesting topics of study and furnish material for
the reflective powers of man.
XXIX
WAR AND CRIME
All natural phenomena affect the activities of man. It has been
repeatedly observed that the number of crimes of assault and murder
increases in the summer months and fluctuates with extreme heat or a
cooler temperature. The nervous system of man is responsive to all sorts
of physical and psychological influences, and criminologists take these
into account in considering crime, as doctors take them into account in
treating disease. Man is influenced by substantially all the things that
affect other structures and by many things that do not. His nervous
system is more delicate, his emotional nature more complex, and his
brain permits the handling of impressions in a way not possible to lower
organisms.
The effect of war has always been manifest in human conduct. Man acts
largely from habit and custom; he does as others do, without reflection
as to why he should do it or why others do it. War is a sudden, violent
and spectacular destroyer of all established habits. In its conduct and
preparation it has rules of its own which have no analogy in civil
life. The battlefield is a reversion to the primitive; a reversion which
man finds it easy to make, for it appeals to fundamental instincts which
civilization holds in leash with great difficulty and never with entire
success. War especially appeals to the young. Their desire for activity,
their impatience with restraint, their love of the spectacular, their
untrained emotions, all find a ready outlet in war. Even those who are
too young to fight still read of it, talk of it, play at it to the
exclusion of other games. War is a profound and rapid maker of mental
attitudes and of complexes that are quick to develop and slow to pass
away. Both the quick development and slow decay are probably due to the
fact that war meets a decided response in the primitive nature of man.
Nearly all the newspapers of America are now calling attention to the
increase of crime since the close of the Great War. It is a topic of
pulpit and platform discussion. Wild appeals are made for convictions
and extreme penalties. Governors and boards of pardon and parole are
urged to refuse clemency to prisoners and are roundly condemned when
they do their plain duty, even though they do it very reluctantly and
tardily.
It is probably true that the close of the war has shown a large increase
in criminality, especially in crimes of violence. This is true not only
of America but of all European countries. In some of the most afflicted
ones civil government for a time has virtually broken down. Both the
great need for food and clothing and the overthrowing of conventions,
customs and habits are responsible for the change. Here we perceive a
notable example of the almost instantaneous disruption of established
folk-ways.
For more than four years most of the western world did nothing but kill.
The whole world talked of slaughter and devoted its energy to killing.
Every sentiment of humanity was forgotten. Even religious ties and
religious commands were ignored. The prayers to the Almighty contained
requests that He help the various fighting nations to kill their
enemies. Everyone was taught to hate. The leaders in the war knew that
boys could not do efficient killing unless they learned to fear and
hate. The most outrageous falsehoods were freely circulated by every
nation about its enemies and their conduct of the war. The highest
rewards were offered for new and more efficient ways to kill. Every
school was turned over to hate and preparation for war, and, of course,
all the churches joined in the universal craze. God would not only
forgive killing but reward those who were the most expert at the game.
The newspapers carried stories of battles every day, the dead and
wounded often running into the tens of thousands. None of the reports
was exact. Nothing was true. Everything was wild and exaggerated. Facts
were not strong enough to make an impression. Lies were deliberately
circulated to help the cause.
Every tradition and habit of life was broken and broken all the time.
The commandment, "Thou shalt not kill," was repealed. Property was not
only ruthlessly destroyed but openly confiscated. Lying was a fine art.
When this bears a harvest after the war, the public loudly clamors for
hanging boys whose psychology is a direct result of long and intensive
training by the leaders of the world.
One life is not worth considering in the face of the holocaust that has
taken its hundreds of thousands and has been defended in the schools and
churches. It is not strange that the after-war harvest of crimes should
come largely from boys, often those boys who did their part on the field
of battle. Whether they got the psychology from killing or reading or
hearing or playing soldier or training makes no difference. Everyone who
has any reasoning power knows that they got it, that it was deliberately
given to them if not forced upon them, and that just as deliberately the
state is killing them because they took it.
It is not alone the young who show this psychology of killing that has
grown out of the war. Organized society, the public, juries, judges,
pardon boards and governors, show that war has made them cruel and
wanton of human life. The great number of hangings since the war is
patent to all observers. In normal times juries were very loath to
pronounce the death penalty. With any possible excuse they always saved
life. Now they pride themselves on taking life. Even insanity does not
always prevent an execution.
Numerous are the evidences of the derangements the war has created and
left behind. A few years ago a prize fight would not have been permitted
in more than one or two states in the Union. Now state after state is
passing laws to permit prize fights to take place, and even the best
society has given its sanction to this sort of sport. Whether the state
should permit prize fights is not the question. The fact is, as everyone
knows, that it is permitted on account of a psychology growing out of
the war. We content ourselves with saying it will never do to raise our
boys as molly-coddles; they must learn to fight.
It is not alone murder that can be traced directly to the war
psychology. Robbery and burglary have rapidly increased, and much of
this is due to the emotions of boys. The robbing of country banks has
grown to be almost a pastime, and often one or more participants in
these raids is a returned soldier.
What should be done to meet these new conditions? Common honesty,
common sense and common humanity alike plainly show that a large part of
the crimes of violence are due to the war. Will hangings and life
sentences stop them? And, if so, is it right for organized society to
ignore its responsibility and place it on the young men that they
innoculated with the universal madness? It is expecting too much to
think that there is any process by which society can be made to think
and feel. Some day, however, when the war fever passes away crime will
again take its normal place.
This phenomenon is not new in the world. Everyone interested has noted
it before. It has followed all great wars. War means the breaking up of
old habits, the destruction of many inhibitions, which in the strongest
civilization are only skin deep at the best. It means the return to the
primitive feelings that once ruled man.
The Napoleonic Wars left a long heritage of crime. Every nation in
Europe was affected by them. Many years passed before the world grew
tranquil. Our Civil War brought its harvest of crime. It was felt both
North and South. It was not confined to homicide but was shown in all
sorts of criminal statistics, especially crimes of violence.
I do not write as a pacifist. There is nothing in the constitution of
man that makes pacifism anything but a dream. Man is largely ruled by
fear and hate, and it is not possible to imagine an individual or a
race that under sufficient provocation will not fight. Neither is it
possible that nations will not always, from time to time, find the
provocation sufficiently great. Individuals and nations can philosophize
and reason and make compromises when they are calm; but let them be
moved by fear and hatred, and these emotions will sweep away every other
feeling. The conditions for war were ripe in 1914, and it was inevitable
that America should be in it too. This should not make one wish for war
nor believe in war nor close one's eyes to its horrors and results. Much
less should it prevent him from trying to do his part to restore sanity
to the world.
Another consequence of war which America is passing through is the
spirit of super-patriotism. This is always aroused and must be aroused
to carry on the war. It is potent in creating the psychology that makes
men fight. Every people teaches that its own country is the best; that
its laws and institutions excel those of all other lands. This spirit is
taken advantage of and used by designing men. It is used to send to jail
those who criticise existing things. It is used to hamper and destroy
any effort to change laws and institutions. The one who criticises
conditions is a disturber and a traitor. Those who profit by existing
things are always intense patriots and by means of cheap appeals and
trite expressions seek to stifle discussion and criticism. This war has
borne a deadly harvest of restrictive legislation in America. We are no
longer an asylum for political offenders. We no longer stand for freedom
of speech. Old traditions and constitutional and legal guarantees have
been swept aside under the hysteria which has prevailed during and since
the war. These results were inevitable and will follow war as long as
man is man.
All the after-effects of the World War show how completely man is ruled
by forces over which he has no control. If considerable numbers of the
people have been moved by war hysteria, and if a large part of crime is
directly traceable to war, it seems plain that all human action could be
traced to some controlling cause, if only man could be wise enough and
industrious and humane enough to find the cause. It is plain that the
law of cause and effect influences mental phenomena as it does physical
acts, and sometime, perhaps, men will seek to avoid the effect by
removing the cause.
XXX
CIVILIZATION AND CRIME
As children we have all amused ourselves by looking into a kaleidoscope,
turning it around and around and watching the changing patterns formed
from the mixing bits of different colored glass in the other end. Each
turn makes a different pattern and each bit of glass seems to seek a
spot in the general medley where it can be settled until another turn
drives it to find a resting place somewhere else. The organization of
individual units into a group is more or less such a formation, each
seeking to adjust itself to a pattern and finding that the pattern is
ever-changing and the individual units obliged to seek new positions and
make new adjustments.
It is vain for social theorists to talk of a perfect order, a system of
social organization that will find the proper place for each unit and
bring social symmetry out of the whole. Such a society is not consistent
with the varied capacities and wants of men. Neither is a perfect order
possible with ever-changing and moving physical forces, with new mental
conceptions, with new needs and wants, with constant births and deaths,
and with the innate instincts of man.
Some system may be the best for a time but must in turn give place to
new formations. In this process the old is ever mixed with the new. The
past hangs on to plague the present, and the vision of the future
disturbs the quiet and stability that the present inherited from the
past. Organizations of society are necessary and automatic. The frost on
the window pane takes its pattern, the crystals in the glass and stone
have their formations, the grain of sand, the plant--all forms of animal
life--the solar system and, doubtless, an infinite number of other
systems which the eye cannot see or the mind comprehend take on form and
order. The symmetry and shape of any of these organizations may be
shattered by growth or catastrophe, and new forms may take their place.
All life is constant friction and constant adjustment, each particle in
a blind way trying to find a more harmonious relation, but never
reaching complete rest.
The social and political patterns that men have taken have been of many
forms. All through the past these have changed, and the laws and habits
that were meant to hold men together, have been made and discarded as
fast as new emotions or ideas have gained the power to make the change.
Men are of all degrees of adaptability. Some can readily conform to the
new. Some adjust themselves very slowly. Man's structure is fixed; his
inherent instincts are of ancient origin, always urging him to primitive
reactions; his habits are slowly formed and slowly changed. Slowly he
settles himself to the conditions that surround him. He learns their
demands; he manages to conform, but the folk-ways that he knew and the
way of life he learned must be changed to something else. Every new
adjustment, every change of organization, every modification made by
civilization, bears its toll of victims who have not been able to adjust
themselves to the new order.
The first criminal regulations, doubtless, had to do with the personal
relations of men. The number of offenses was small for life was simple,
wants were few, and ambition rare. The growth of religion created a
ferocious criminal code, regulating every thought and action that God's
agents thought might offend the Deity or threaten their power on earth.
Anyone interested in the story of punishment for heresy, sorcery or
other crimes growing out of religious fanaticism, can read the story in
Lecky's _History of Rationalism in Europe_, in White's _A History of the
Warfare of Science with Theology in Christendom_, in Draper's
_Intellectual Development of Europe_, and in many other books. The
Spanish Inquisition alone furnished about 350,000 victims in the two
centuries of its power. Many of them were burned alive, many others were
killed by the most cruel torture that could be devised by man. Up to
recent times more victims have been put to death for heresy and kindred
crimes against religion than for any other cause. Next to this no doubt
stand political crimes. Even America hanged old women for witchcraft, a
crime they could not commit. Practically all the victims of religious
and political persecution have been guiltless of any real crimes, and
among them were always many of the noblest of their age.
Every general change of religious or political ideas bears its quota of
crimes. For whatever the religious or political organization, it always
uses every means in its power to perpetuate itself. This is as true of
republics as of monarchies, although the severity of punishment and the
amount of heresy permitted change from time to time. Each age is sure
that it has the true religion and the God-given political organization.
In every age the accepted religion is true, and the king and the state
can do no wrong.
One thing only seems to be sure. Human nature does not change. Whether
it was the theological systems of the ancient world fighting to keep
Christianity out, or Christianity fighting to preserve itself, the same
cruel, bigoted, fanatical majority has been found to do its will, and
the same reasons and excuses have served the law from the earliest
times down to today.
A letter of the younger Pliny, who was then governor of Bythinia-Pontus,
a province of Rome, asking the Emperor Trajan for instructions in
dealing with the early Christians shows how persistent are intolerance
and bigotry. This might have been written yesterday to seek advice in
the suppression of opinion and punishment for sedition in any of the
most advanced governments of the modern world, as it was in the most
advanced of the ancient world. The letter is here reproduced as an
interesting exhibit of human nature and it fixity.
Pliny, the younger, was born in 61 A.D. and became governor of the
province of Bythinia-Pontus about the year 112 A.D. under the Emperor
Trajan. In the discharge of his duties as governor, Pliny discovered
that the conversion of many of his subjects to Christianity had resulted
in a falling off of trade in the victims usually purchased for
sacrifices at the temples and in other commodities used in connection
with pagan worship. As a good governor, Pliny sought to remedy this
economic situation, and his plan was to restore his subjects to their
old forms of worship. Thus he was brought into contact with
Christianity. The following letters, one from Pliny to Trajan, and the
other, Trajan's reply, show the situation. These documents are from the
Tenth Book of Pliny's Correspondence, Letters 97 and 98.
PLINY ASKING INSTRUCTIONS OF TRAJAN ON TRIALS OF CHRISTIANS
It is my invariable rule, Sir, to refer to you in all matters where
I feel doubtful; for who is more capable of removing my scruples, or
informing my ignorance? Having never been present at any trials
concerning those who profess Christianity, I am unacquainted not
only with the nature of their crimes, or the measure of their
punishment, but how far it is proper to enter into an examination
concerning them. Whether, therefore, any difference is usually made
with respect to ages, or no distinction is to be observed between
the young and the adult; whether repentance entitles them to a
pardon; or if a man has been once a Christian, it avails nothing to
desist from his error; whether the very profession of Christianity,
unattended with any criminal act, or only the crimes themselves
inherent in the profession are punishable; on all these points I am
in great doubt. In the meanwhile, the method I have observed towards
those who have been brought before me as Christians is this: I asked
them whether they were Christians; if they admitted it, I repeated
the question twice, and threatened them with punishment; if they
persisted, I ordered them to be at once punished: for I was
persuaded, whatever the nature of their opinions might be, a
contumacious and inflexible obstinacy certainly deserved correction.
There were others also brought before me possessed with the same
infatuation, but being Roman citizens, I directed them to be sent to
Rome. But this crime spreading (as is usually the case) while it was
actually under prosecution, several instances of the same nature
occurred. An anonymous information was laid before me, containing a
charge against several persons, who upon examination denied they
were Christians, or had ever been so. They repeated after me an
invocation to the gods, and offered religious rites with wine and
incense before your statue (which for that purpose I had ordered to
be brought, together with those of the gods), and even reviled the
name of Christ: whereas there is no forcing, it is said, those who
are really Christians into any of these compliances: I thought it
proper, therefore, to discharge them. Some among those who were
accused by a witness in person at first confessed themselves
Christians, but immediately after denied it: the rest owned indeed
that they had been of that number formerly, but had now (some above
three, others more, and a few above twenty years ago) renounced that
error. They all worshipped your statue and the images of the gods,
uttering imprecations at the same time against the name of Christ.
They affirmed the whole of their guilt, or their error, was, that
they met on a stated day before it was light, and addressed a form
of prayer to Christ, as to a divinity, binding themselves by a
solemn oath, not for the purposes of any wicked design, but never to
commit any fraud, theft, or adultery, never to falsify their word,
nor deny a trust when they should be called upon to deliver it up;
after which it was their custom to separate, and then re-assemble,
to eat in common a harmless meal. From this custom, however, they
desisted after the publication of my edict, by which, according to
your commands, I forbade the meeting of any assemblies.
After receiving this account, I judged it so much the more necessary
to endeavor to extort the real truth, by putting two female slaves
to the torture, who were said to officiate in their religious rites:
but all I could discover was evidence of an absurd and extravagant
superstition. I deemed it expedient, therefore, to adjourn all
further proceedings, in order to consult you. For it appears to be a
matter highly deserving your consideration, more especially as great
numbers must be involved in the danger of these prosecutions, which
have already extended, and are still likely to extend, to persons of
all ranks and ages, and even of both sexes. In fact, this contagious
superstition is not confined to the cities only, but has spread its
infection among the neighboring villages and country. Nevertheless,
it still seems possible to restrain its progress. The temples, at
least, which were once almost deserted, begin now to be frequented;
and the sacred rites, after a long intermission, are again revived;
while there is a general demand for the victims, which till lately
found very few purchasers. From all this it is easy to conjecture
what numbers might be reclaimed if a general pardon were granted to
those who shall repent of their error.
TRAJAN TO PLINY
You have adopted a right course, my dearest Secundus, in
investigating the charges against the Christians who were brought
before you. It is not possible to lay down any general rule for all
such cases. Do not go out of your way to look for them. If indeed
they should be brought before you, and the crime is proved, they
must be punished; with the restriction, however, that where the
party denies he is a Christian, and shall make it evident that he is
not, by invoking our gods, let him (notwithstanding any former
suspicion) be pardoned upon his repentance. Anonymous information
ought not to be received in any sort of prosecution. It is
introducing a very dangerous precedent, and is quite foreign to the
spirit of our age.
Civilization is largely a question of new machinery and methods. It is
not the humanizing of men. It is plain that no matter what the time or
age, the characteristics of man remain the same. His structure does not
change; his emotional life cannot change. New objects and desires may
control his feeling, but whatever the aim of the age and place, the same
inherent emotions control.
Intolerance has been one of the great sources of evil all down the ages.
It is practically certain that neither time nor education has made man
more kindly in his judgment of his fellows or more tolerant in his
opinions and life. All that education can do is to remove some of the
inducing causes that have always brought the sharp conflicts and
awakened the cruelty of man.
Every civilization brings new evils and new complexities which man meets
with the same machine and the same emotions. It is fairly certain that
no nobler idealism or no finer feelings have been planted or cultivated
in man since the dawn of history, and when it is thoroughly realized
that man's structure is fixed and cannot be changed it seems as if none
could be developed.
XXXI
THE CONVICT
Human nature is so weak and imperfect that, at its best, it needs all
the encouragement it can get. The comradeship of friends, and the
attitude of the public and acquaintances are of the greatest importance
in effecting the development of most lives. Sooner or later the
convicted man is turned out either on probation or parole, or at the
expiration of his sentence. He was probably none too strong a man before
his conviction. His heredity was poor in most cases, and his environment
completed his downfall. He faces the world again with a serious handicap
that he did not have at first. If he had just recovered from a severe
illness, everyone he met would do all he could to help him; his
environment would be made easier than before his confinement in the
hospital; and especially from the conditions that placed him there, both
society and his neighbors would try to see that he should, as far as
possible, be saved. If he had been one of those who could live only by
means of his own work, and if on account of himself or his family he had
been obliged to over-strain, an easier place would probably be found
for him. The chances of going to the hospital the second time would be
very much less than they were the first time. Even his experience in
confinement would be of use, and through that experience he would be
taught to live and preserve his health.
The discharged prisoner is met in an entirely different way. The
ex-convict is under doubt and suspicion from the start. On the slightest
provocation he is reminded of his past. He is always under suspicion
unless, perhaps, he professes a change of heart. Such a change implies a
physical process which is impossible. Some sudden exaltation may furnish
him a new emotion for a time, but this can last only while the stimulus
has power to act. It will soon pass away and the man will be himself
again. It may be possible that here and there is a nature of such an
emotional temperament, that religion or socialism or single tax or some
other strong conviction may possess him until such time as his feelings
begin to cool and change, when he will be safe. But most men are
inherently the same when they come out of prison as when they go in.
Under right treatment they may gain a little more wisdom as to life that
will help them make adjustments; or they may be relieved from some
burdens, or placed in an environment of less stress and strain where it
will be easier to live. In those cases, the attitude and help of the
community are all-important.
Society is not entirely to blame for looking on him with suspicion. It
knows he once failed. It has been taught that this failure was due to a
moral delinquency outside the law of cause and effect, and society is
naturally suspicious that he will offend again or molest the community
in some other way. Had he been confined because he had not the strength
to meet his environment; had the law put him in custody under expert
control until he gained the strength for his battle with life; or had a
new environment been provided under scientific direction as in the case
of a hospital patient, society would then take another view and do all
it could to help him. New comrades and associates would surround him to
show him the way, and they would make his burden lighter. Instead of
this, he comes out with his ability to adjust himself to life lessened.
If a crime is committed in his community he is blamed or at least
suspected. He is known to the police and often "rounded-up." This
directly interferes with his employment, places him at a disadvantage
with his associates, and drives him into the company of others who feel
that the world is against them and that a life of crime is all there is
left to follow. It is not hard to see how men come to be "repeaters." It
is hard to understand when they do not.
XXXII
ISOLATION AND STERILIZATION
The growing belief that crime comes largely from the subnormal has
created a more or less definite demand for the isolation of the moron
before the commission of crime and for the sterilization of certain
misfits, especially after conviction. Both of these methods are very
drastic, and while society must and will adopt any way that seems to be
necessary to protect itself, still before accepting such drastic
remedies it should be very clear that the danger is sufficiently great
to justify the means, that the desired result will follow and that no
other means will bring about the end.
In this discussion it should be remembered that the mental
classification of children and grown-ups is only in its infancy, that
much that is freely stated is still in the realm of theory, and that
time and patience in making investigations and classifying facts are
most important in arriving at correct results.
The really intelligent are as abnormal as the defective. The great
masses of men are rather mediocre, and those above and below are
exceptions. This depends on how broad is the class included in the
normal. There are no sharp divisions anywhere; above, the normal shades
imperceptibly into those of unusual intelligence, and below it fades
just as gradually into the sub-normal. While defectives are more apt to
commit crimes, in the main this is because their environment is too hard
for their machine.
The sub-normal are probably more tractable and less disposed to the
emotions that lead to criminal acts than are the more intelligent. Their
crimes are especially noticed because they seem to be without any
serious motive and often shockingly brutal. City life most readily
uncovers the sub-normal. This is true because the strain is far greater
in the city than the country. There are exceptions to this rule,
particularly those portions of the country that are barren and
unproductive territory into which the venturesome and obvious unfits are
drawn.
The prisons are not the only places which are inhabited by the
sub-normal and the misfit. The hardest and most disagreeable and most
poorly paid labor is largely done by this class of people. Very few
people of superior intelligence and education do manual labor and the
more disagreeable the manual labor, the more certain it is that the job
is done by the sub-normal and the misfit. A large part of the farm
labor, the odd jobs and common labor in small towns, the cheaper labor
on railroads, in factories and all industrial plants is given to this
sort of men. In the country and small village, where life is easy, this
class seldom makes trouble and is hardly known. These men and women
easily and naturally fall into a place in the industry and society of
the village and are often among the most useful members.
A general examination of all men to discover the defective and the
sub-normal, coupled with a demand that all such be sent to some place of
confinement, would meet with such a protest from all classes seriously
affected as to end not only the demand but the further agitation of the
subject. Any such law, if carried out, would not only seriously increase
the cost of all industry, but in many instances would make it impossible
to carry it on. It is hardly conceivable that above the idiot, society
shall make examinations and tests and confine or sterilize large classes
of people who have not yet developed anti-social tendencies, but who on
account of feeble intellects might sometime commit crime.
The world has ample data at hand to show more humane and at the same
time much cheaper ways, even methods that will yield a profit. These
ways have been abundantly illustrated by history and can be witnessed in
operation every day.
England was repeatedly conquered and settled by brigands and misfits.
When her people grew more homogeneous and orderly she sent her
anti-social to New Zealand and to Virginia. In New Zealand with its
opportunities these outcasts and their descendants prospered and were as
orderly and conventional as the English society that banished them for
England's good. The colonies in Virginia with access to land and a
chance to make homes for themselves established a social order and
formed communities more prosperous than the ones that sent them out.
Many of their descendants are now successful and important members of
every western state.
In fact, most of the European immigrants who have settled in the United
States were the poor and the outcast, the misfits of European countries.
With better opportunities and a chance to build up homes in a new land,
their descendants are at least the equals of those who stayed behind.
The growth and development of the United States westward from the
Atlantic seaboard has been effected by the poorer and less intelligent,
but often the more venturesome, who constantly turned West to get
cheaper land and a better chance. The residents of these western states
compare very favorably with those who still reside in the sections of
the country which these pioneers left behind. It cannot be shown that
the less intelligent have criminal natures. All that can be shown is
that they have a poorer equipment to meet the stress and strain of
life. To make most of this class safe, all that is needed is fairer
conditions and an easier environment. If society could only recover from
the obsession that what is necessary to regulate man is plenty of
prisons and harder punishments, it would be fairly easy and infinitely
cheaper to improve the environment from which crime springs than to
visit vengeance on the victim.
The effect of education is very great. Many a subnormal and backward
person has been educated so he could take a place in life that those
with a much greater natural ability could not fill.
Beyond the segregation of the imbecile, the insane and those who have
committed crime, it is dangerous to go. The course of preventing crime
lies in the other direction, better opportunity and an easier life.
It has grown to be a commonplace in the discussion of crime to speak of
isolation and sterilization as the proper treatment of the criminal and
defective. This is generally done without any clear understanding of the
laws of heredity.
The laws of the transmission from parent to child of traits and
tendencies are not yet well enough known to justify any attempt to
interfere with the function of life, except in the case of the idiotic.
It is plain that crime cannot be inherited. Certain defects in the brain
and nervous system can be and are inherited. No brain or nervous system
is perfect, so the problem is one of the incapacity which causes the
maladjustment. Crime results from defective heredity when applied to the
environment. It comes from the inability of the machine to make the
necessary adjustments of life. The making of the criminal is largely a
question of his fortune or misfortune in the environment where he is
placed. It is absurd to say that one inherits the tendency to rob or
rape or burglarize or kill. He may inherit an unstable organization that
in certain hostile environments will lead him to any of these crimes.
For that matter all men inherit the organization that will bring these
results if the environment is sufficiently hard. Society may in many
ways place too high a value on human life. Still we punish men who place
too low a value on the lives of others, and the state should be very
slow to destroy life or the capacity for life.
There is much to learn, much to explain about the mysterious workings of
heredity, before man can undertake to say that he has the wisdom or
justice to choose the ones who should be the bearers of life to the
future.
It is most common to find in the same family various degrees of
intelligence. Now and then a man of such high powers and faculties is
born that he is regarded by scientists as a "sport" who defies all
known laws in his origin. Often one person in a family is of commanding
strength, while the rest are commonplace.
The insanity and disease that afflict many men of genius is well known.
Grasset in his book _The Semi-Insane and the Semi-Responsible_ has given
a long list of eminent names. Many great authors have depicted insanity
in their most gifted characters. Genius is frequently an indication of
insanity. It is a wide departure from the normal.
The obscure and lowly origin of many of the world's greatest men seems
to point to the fact that Nature has methods that man cannot comprehend
and with which it is not wise for him to interfere. The fact is that
genius, or even great strength or ability in the parent, is by no means
sure to be handed down. In fact, it is very rare indeed that such
unusual traits persist. That sterilization should follow as a punishment
for sex crimes is without any sort of logic except that sterilization
relates to sex. The whole idea is born of the hatred or loathing of
certain crimes.
Generalizations have been made from a few poorly authenticated cases,
and these generalizations have gone far beyond anything that the
evidence can justify. It does not follow that because the father and son
have black hair, or the mother and daughter have blue eyes, or that
their mannerisms are similar, that inheritance is responsible for
character, much less for crime. Certain things are clearly traceable to
heredity. Other things may be the result of association or what to us
must still be accident.
Often the fact is pointed out that great progress has been made in the
culture of plants and the breeding of animals. This is true. No
intelligent farmer to-day would think of raising any but the best stock.
He takes pains with the breeding of his cattle. If he wants rich milk
and butter, he breeds Jerseys or Guernseys. If he wants a larger
quantity of milk and a fair beef animal, he breeds Holsteins. If he
wants beef only, perhaps he raises Durhams. At any rate he knows what he
wants and breeds that kind. Similarly the horse-raiser will breed for
race horses or dray horses as the case may be, and the system works with
almost mechanical certainty. He gets what he wants and would never think
of raising scrubs and taking a chance on results. The effect of
selective breeding and culture is beyond dispute, and to many it seems
obvious that all that is needed to perfect the human race and wipe out
misery and crime is to supervise human breeding in the same way, so that
the species may be controlled.
At first glance this seems to be the logical thing to do, especially as
the effects of heredity can no more be doubted in man than in animals.
Still there are important questions to be asked and grave dangers to be
encountered. When we say that the well-bred Berkshire hog is better than
the "razor-back," we mean that it will produce more meat for food. In
other words the hog is better for man. If we were to ask which would be
the better, if the hog were to be considered, the answer would probably
be the "razor-back." The fact that the food consumed by the Berkshire
produces a large quantity of fat, makes him unfitted to live if he were
living for his own sake. Turn both hogs out to run wild, and the
"razor-back" will live and the Berkshire die. Nature will make her
selection and adapt the hog to his environment. The Berkshire will
produce more lard, but it will not run so fast; it has no more brains
and cannot adapt what it has so well to the preservation of life. The
same thing is doubtless true of other animals and likewise of plant
life. The Jersey cow would not survive in a natural state. She gives too
much milk and for too long a time. Man has made of her a milk-machine.
Turn all thoroughbred horses out on the plains to shift for themselves,
and they would either die or gradually be modified until they were
adapted to the free and wild life of the plains. This would not be so
good for man, but would be better for the horses. In plants and animals,
man can by selection breed or cultivate any characteristics that he may
choose, but he cannot produce a horse which is both a draft horse and a
running horse; he cannot produce cattle that are the best both for milk
and beef. He is urged to try scientific breeding on the human race. How
would he have man changed? Would he experiment for more intellect, or a
bigger and stronger physique? Would he breed for art and civilization or
would he breed for strength and physical endurance? What qualities are
desirable for the human race? This would be a very hard question even to
entrust to a popular vote. While the capacity of cattle to produce milk
can be increased, cattle cannot increase their own capacity or improve
their own quality. This can be done only by the slow and patient
processes of Nature in the line of adapting the animal to its
environment. The rapid change that is to come about by breeding must be
directed and controlled by man. The cattle have nothing to say about the
process. No doubt a higher order of beings who could control man might,
and perhaps would change him by selective mating. How they would change
him would depend on the use they wished to make of him, not on what the
man himself would like to do. The contemplation of a higher order of
beings experimenting with the human race is not a pleasant one for
intelligent men.
Can we imagine men, through government, forcibly experimenting with each
other? Who would settle the kind of man that was to be evolved or the
specific changes that would be required? Or, what was to be done and
how? Who could prophesy what man would be like when he should be made
over in the likeness of something else? Who are the people with the
breadth and tolerance and infinite wisdom, in whose hands it would be
safe to place the remodeling of man? It is hard to conceive that it can
be seriously considered.
Nature in her own way is a eugenist. By her slow processes she is
continually wiping out the unfit and adapting man to the environment
where he must live. Perhaps by saving too many of the unfit man is more
or less interfering with the processes of Nature, and it may be that the
interference with her method of work is bad. But Nature is mindful of
this tendency and if it is not in accordance with the profoundest laws
of being, Nature will have her way in spite of man's meddling. Any
change that can be brought about by selective mating must come by
natural processes aided by the education of each individual through a
closer study of the origin and evolution of life. This must leave
everyone free to do his own selecting, rather than to trust it to the
state. Society can do much toward giving man an environment which will
more or less be adjusted to his heredity. To give him a heredity that
will conform to his environment is quite another thing and probably must
be kept practically free from the theories, vagaries and experiments of
man. It would seem so absurd and dangerous as not to be worth discussing
except for the fact that the movement, both for sterilizing and some
degree of control of mating has already gone far in some of the states.
There is no limit that fanaticism or hatred will respect.
No doubt the popular opinion that in some way crime and pauperism are
inherited has been strengthened by the literature concerning the family
that has been given the name of "The Jukes." The first extensive study
of this family was made by Richard L. Dugdale, who was connected with
the New York Prison Association. It was first published in 1877 and may
almost be regarded as the "Uncle Tom's Cabin" of the scientific study of
crime in America.
Mr. Dugdale was evidently a careful student, an honest investigator and
a humane man. Strange to say, deductions have been freely and carelessly
made from his book, which the investigations do not warrant, and against
which he carefully cautioned the reader. No one can examine Mr.
Dugdale's book without being impressed with the quiet unassuming modesty
and worth of the author, and yet in the hands of those who have so often
carelessly and unscientifically generalized from his studies, it has
possibly brought more harm than good.
The book covers investigations made by Dugdale between 1850 and 1870, a
period in which little was known about the laws that govern inheritance,
and necessarily, much evidence was pure hearsay without the data of
careful investigation at hand. The case, however, does show a surprising
number of criminals, paupers, harlots and misfits, descending from their
original ancestor. From time to time further investigation has brought
the history of the family down to 1918.
The ancestor with whom the investigation begins was born some time
between 1720 and 1740. In the report the original is called "Max." He
has been described as a "hunter and fisher," "a hard drinker," "not fond
of work," fairly intelligent and leaving no record of crime. He probably
left behind a large family, some of whom were legitimate and some
illegitimate. The family came from a barren, rocky, lake region in New
York and several generations grew up in the vicinity. The only industry
was rough work like quarrying stone, logging and the like. Later a
manufacturing plant was located in the region. The Jukes early got a bad
name in the small community. Even when they wanted to find employment it
was hard to get a job. They were socially ostracized and individually
boycotted. The region was poor, and for the most part the family grew up
in poverty. Often several members of a family lived in one room and
slept on the floor indiscriminately, regardless of sex. For several
generations few of them wandered far from the ancestral home. The
locality was one that naturally came to be the resort of the poor and
the outcast; these are always driven to the cheapest and most barren
land. Whether the community was related by blood or not, the residents
would almost inevitably be of the same class. Rich people cluster
closely together for association and fellowship. The poor and wretched
do the same. Common observation in city and country shows that this is
inevitable. It comes from deeper and more fundamental laws than human
statutes. It is born of the gregarious instinct and fostered and
developed by economic law.
In the main, lax habits grow from surroundings and association. The
tendency of all human beings is to revert to the primal. It is only
association that keeps the individual units up to the tension that
civilization expects and demands. Every community shows many examples of
this inevitable tendency. Nature is constant; civilization spasmodic.
Especially with sex relations, conditions are the chief factor. Nature
knows little or nothing of the regulations fixed by society and custom.
Poverty and wretchedness reach outward through a community and by
association between the old and the young pass down the generations.
Nothing but a complete change of environment can counteract the
inevitable tendency. When social classes arise and the cleavage is clear
and established, no great effort is made by the superior members to aid
the inferior. In fact they are almost invariably left to themselves.
Poverty and wretchedness are not transmitted in the blood, but in the
environment.
It is not many years since physicians and communities believed that
tuberculosis was inherited. In all communities there were instances of
this dread disease spreading out through families and down the
generations. It required the sacrifice of many lives and the careful
investigation of scientists to discover that tuberculosis was the result
of germs, generally accompanied by an impoverished system. These germs
were transferred by close association and lack of sanitary conditions.
It is as easy to transmit shiftlessness, idleness and lax habits as
disease.
Dugdale's figures of delinquency in the Jukes family are doubtless much
too high. A large percentage of facts was gained from gossip and hearsay
about those long since dead. The details show that many crimes charged
were not even proved, others were evidently not crimes, and in any small
community suspicion would rest upon a member of this family who was
accused. Then too, the poor in court and out have a hard time defending
themselves. They are frequently convicted when accused. The evidence in
regard to the subnormal and defective is still less satisfactory.
Without close examination and thorough tests, illiteracy generally
passes as subnormality. Very few of the subjects were submitted to a
careful test. It is at least probable that this family was not much
different from the other families who lived in like circumstances in the
community.
Dugdale's original examination covered 709 cases out of about 1200 that
were supposed to be living at the time. Of this number, 180 are put down
as having received institutional and outdoor relief. The criminals and
offenders are put down at 140. Habitual thieves convicted and
unconvicted are listed at 60. Common prostitutes are put down at 50.
After Dugdale's investigation the family, from industrial and other
conditions, became scattered and spread out over many states. A record
has lately been made of the descendants of this family, the later record
showing much improvement in the stock. This must be due to environment.
It seems fairly certain that with time and opportunity, it will not much
longer be a marked family.
Quite aside from the history, it seems certain that no results such as
shown by Dugdale could have followed from inheritance. Defectiveness is
a recessive factor; normality a dominant one. If such were not true,
this would be a world of feeble-minded. If the Mendelian law held good
in this regard, from a union of a defective and a normal person, three
out of four would be normal, but as a matter of fact, the percentage of
normal is no doubt much greater. It is only when both father and mother
are feeble-minded that feeble-mindedness is sure to show in the
offspring. With the modern care of this sort of defectives, the chance
of breeding is growing rapidly less.
The Kallikak family is cited as another illustration showing the
possible inheritance of criminality and poverty through a defective
strain. This family, so far as shown, makes it still clearer that what
some authors have charged to heredity is simply due to environment.
These investigations do not show the need of controlling birth but do
prove the necessity of improving environment. It is not possible to
speak with certainty as to heredity and environment. The thorough
investigation of these two factors which make up life is still in its
infancy, but scientists are working out the problem, and we may be
confident that with the right attitude toward crime, a remedy will be
found for such cases as result from environment.
XXXIII
CRIME, DISEASE AND ACCIDENT
The criminologist has always looked for the cause of crime in some other
direction than in the inherent wickedness of the criminal. Only those
who make and enforce the law believe that men commit crimes because they
choose the wrong.
Different writers have made their catalogues of causes that are
responsible for crime, and most of these lists are more or less correct.
There can be no doubt that more crimes against property are committed in
cold weather than in warm weather; more in hard times than in good
times; more by the unemployed than the employed; more during strikes and
lockouts than in times of industrial peace; more when food is expensive
and scarce than when it is cheap and plenty; more, in short, when it is
harder to live. There is no doubt that there are more crimes of violence
in extreme hot weather than in cold weather. That is, heat affects
crimes as it affects disease and insanity and death; in short, as it
affects all life. More crimes of violence are committed after wars or
during heated political campaigns than at other times; more of such
crimes when, either by climatic or other conditions, feelings are
intensified or aroused and less subject to control. Likewise there are
more crimes committed by young men between seventeen and twenty four or
five years of age than at any other age. Neither the very young nor the
old commit crimes, except in rare cases. All the old people could be
safely dismissed from prisons. Some few of the senile would need
attention, and many need support and care, but none is dangerous to the
community. There can be no question that practically all criminals are
poor. Even when bankers get into prison they almost never have much
money when they start that way, and none when they arrive. They are sent
for something that would not have happened except for financial
disaster. There is no longer any question that a large number, say
probably from ten to twenty per cent of the convicted are, in fact,
insane at the time the act was committed, and that the demented, the
imbecile, and the clearly subnormal constitute many more than half of
the inmates of prisons. Most of the rest can be accounted for by
defective nervous systems, excessively strong instincts in some
directions, weak ones in another, or a very hard environment. Add to
this the facts that only a few have ever had any education worthy of the
name, that most of them have never been trained to make a fair living by
any trade or occupation, that almost all have had a poor early
environment with no chance from the first, and most of them have had a
very imperfect heredity. In short, sufficient statistics have been
gathered and enough is known to warrant the belief that every case of
crime could be accounted for on purely scientific grounds if all the
facts bearing on the case were known.
Is there anything unreasonable in all of this? Is it outside of the
other manifestations of life? Let us take disease. Clearly this is
affected by heat and cold; beyond question it is largely the result of
inherited susceptibilities. Poverty or wealth has much to do with
disease. Many poor people die of tuberculosis, for instance, where the
well-to-do would live. The span of life of the rich is greater than that
of the poor. The long list of diseases from under-nourishment is mainly
from the poor. Age affects disease, increasing the hazard of death. The
food supply seriously affects health. Ignorance is a prolific cause of
disease. Or, to speak more correctly, the lack of education and
knowledge prevents men from living so that sickness will not overtake
them, or so that they can recover when they are attacked by disease. The
strength or weakness of the nervous system is a material factor.
The times of life, too, when the ravages of disease are greatest are as
distinct as those of crime. And barring the fact that the few who are
left at seventy rapidly drop away, the time of the greatest disasters
would rather closely correspond with that of crime. Tuberculosis and
insanity, for instance, take their greatest toll in the period of
adolescence between fifteen and twenty-five years, just as crime does,
and the percentage of both begins falling off rapidly after thirty.
Accidents can be as surely classified, and many of them in the same way.
The poor naturally have more accidents than the rich; the ignorant more
than the educated; the poorly-fed more than the well-nourished.
Accidents are directly affected by climatic conditions; they are
affected by human temperaments, by the strength and weakness of the
nervous system, by the environment, by heredity, and by all the manifold
stimuli that act on the human machine.
Legislatures have long since recognized that crime does not really stand
as a separate and isolated phenomenon in human life. They have long
since passed laws to safeguard the community against loss by accident
and disease. A lengthening list of statutes can be found in our code
regulating dangerous machinery, the operation of railroads, the running
of automobiles, the construction of buildings, the isolation of the
tubercular and those suffering from other contagious diseases, the
amount of air-space for each person in tenement and work-shop, the use
of fire-escapes and all of man's conduct and activity for the
prevention of accidents and disease.
Quite apart from the question of the wisdom or the foolishness of all
this line of legislative activity, over which there will always be
serious discussion, it is evident that criminal conduct even now
occupies no unique or isolated place in law or human conduct. All
unconsciously the world is coming to look on all sorts of conduct either
as social or anti-social, and this regardless of what has already been
classified as criminal. A few years since science was absorbed in the
study of man's racial origin and development. Today, biology and allied
sciences are devoted to unraveling the complex causes responsible for
individual development. It is fair to presume that this new effort of
science may be able in time to solve the problem of crime, and that it
may do for the conduct and mental aberrations of man what it has already
done for his physical diseases.
XXXIV
LUCK AND CHANCE
Accident and luck may seem to have no place in a world of law, and yet
the fate of lives rests almost entirely on what can be better classified
under this head than any other.
This is a pluralistic universe. The world is made up of an infinite
number of independent machines, each having its own existence and
controlled by the laws of its own being. In going its several ways and
living its own life, inevitably it often clashes with others and is
seriously affected by them. The fox and the rabbit both roam the woods,
apparently at will, at least independently of each other. By an infinite
number of circumstances, at a particular time and place, their paths
cross and the fox devours the rabbit. Had they not met at the time and
place, the fate of the rabbit would not have been the same. The fox
would have traveled farther and eaten another rabbit or some other
animal in its stead.
An engine is running on a railroad track. It makes the trip day after
day without accident or disaster. An automobile is one of a million
built in a far off city. Its mechanism is marvelous, and each part is
dependent on the rest for its normal functioning. Some vital piece of
the machine contains a flaw. How it chanced to be imperfect is another
story involving endless speculation. An inherent natural defect in the
ore, or a tired workman anywhere from the original smelting place to the
last hand that touched it, may have been the cause; or, the reason may
be still more impossible to discover. The machine is purchased and does
its work perfectly for months. It is driven thousands of miles without
any mishap. It is propelled along the highway and reaches the railroad
track over which the engine runs. It is filled with happy people
enjoying a vacation. The automobile and the engine reach the crossing at
almost the same time. The automobile driver sees the engine and applies
the brakes. For the first time since it left the shop, the machinery
does not work. The car forges ahead and reaches the tracks just in time
to be struck by the engine. The merry party meets disaster. No power
could foresee the catastrophe, nor provide against the death that must
result. Inevitably comes the clash of independent machines. Each human
being is a separate machine. Along the road of life he meets countless
others like himself. Some chance meetings are fortunate and help the
journey. Some other chance meeting with a human machine, a mechanical
device, an infinitesimal microbe that happened to be at the same place
at the same time brings disaster or death. This is luck or chance or
fate, and this really hovers over every life, controlling its course and
destiny and deciding when the puppet shall be laid away!
Luck and chance are the chief of all factors that really affect man.
From birth to death the human machine is called on to make endless
adjustments. A child is born and starts down the road of life. He starts
blindly and, for the most part, travels the whole way in the mists and
clouds. On his pathway he meets an infinite number of other pilgrims
going blindly like himself. From the beginning to the end, all about him
and in front of him are snares and pitfalls. His brain and nervous
system are filled with emotions and desires which lure him here and
there. Temptations are beckoning and passions urging him. He has no
guide to show the way and no compass to direct his course. He knows that
the journey will bring him to disaster in the end. He does not know the
time or the nature of the last catastrophe he shall meet. Every step is
taken in doubt and pain and fear. His friends and companions, through
accident or disease, drop around him day by day. He cannot go back or
halt or wait. He must go forward to the bitter end.
The whole journey of life is largely a question of luck. Let anyone ask
himself the question how often he has escaped disaster or how often
death has just passed him by. How often has he done some act that would
have led to degradation had it been known? How many hair-breadth escapes
has he met? How many accidents has he had which luckily were slight but
which easily might have caused his destruction?
Chance is the great element in life. Two men invest money; one gains a
fortune, the other loses all. Two men are riding in a machine and it
goes over a cliff; one is killed, the other escapes. The deadly germ is
taken by one, it passes the other by; or, it is taken by one when his
health will make him immune, by another at the time that it will destroy
his life. How many temptations to violate the law has one just missed by
a lucky accident? How many times has a previous experience, education,
or a friend at the right time saved him from destruction?
The imperfect man travels this road; he is poor and friendless; his life
is a long series of accidents great and small. The first accident that
weakens his structure makes the second more certain and so on in
increasing ratio until the end. Good luck crowds around one life, while
ill luck and disaster follow another's footsteps wherever he goes with
the persistency of his shadow.
In all the infinite number of chances one false step may be enough to
bring final disaster. All depends on the nature of the step. Every
pilgrim makes innumerable false steps; often luck alone saves the
situation; often luck alone compasses the destruction.
Insurance companies know just when accidents will befall the insured. If
a man lives long enough he will die from a mischance. In a thousand men,
a certain number will meet accident in a given time. It is just the same
whether the insurance is written to be payable when a leg is cut off by
a train or when money is embezzled from an employer. In either event the
time can be figured out, and inevitably it will come if the time is long
enough.
Neither is it necessary that the bad luck shall be great at the first
misfortune. It may be but the loss of a few dollars which another could
easily stand. It may be only a few days of sickness which would be of no
consequence to someone else. It may be the death of a father or an
uncle, while the same sort of tragedy might be the source of another's
wealth. It may be some other person's hard luck which takes him from
school and leaves him to follow a life of hard and constant toil. It may
be that he had the bad luck not to marry the person of his choice, or it
may be that he had the bad luck to marry her. It may be because he had
no children; it may be because he had too many. It may well be that he
has been saved from prison by dying early of tuberculosis. He may have
been saved from a railroad wreck by going to jail. Infinite are the
tricks of chance. Infinite are the combinations and consequences that
may come from turning the cards in a single deck.
Who is the perfect one that should be willing to punish vengefully his
fellow-man? Let one look honestly into his own life and pick out the
important things that lead to fortune or disaster from birth onward, and
say how many are the results of circumstances over which he had no
control.
Where is the human being, in the presence of a dead child or a dead
parent or a dead friend or in the presence of a terrible trouble, that
has not sat down in sorrow and despair and again and again lived over
every circumstance that led to the disaster, asking why he did not turn
this way instead of that way? Why did he not stop here, or go there; why
did he do this or why did he not do that? Why did he not take this short
step? Why did he not think of this or think of that? If only any one of
almost an infinite number of things had been done or left undone, the
dead would be alive or the disaster would not have befallen. Every man
who is honest with himself knows that he has been a creature of
conditions and chance, or at least what is chance as far as a man can
see, and what was clearly chance to him. He knows that if he has met
success, he has only been more in luck than the rest. If he has
intelligence and human sympathy, he feels only pity for the suffering.
He would never punish in vengeance or hatred. He knows that all do the
best they can, with what they have.
Enumerating some of the many causes of crime ought to be an unnecessary
task. To give the number of ways men die or are killed by accident,
means only that sooner or later they die, and if they had not died one
way, they would have died another. It means only that a machine will
inevitably give way in some part, and man may go on finding the weak
spots and strengthening them forever and still the end will come. Fate
does not look for a weak spot; it looks for the weakest and finds it.
Manifold causes produce crime; some men commit it from one cause: some
from another. Statistics only show the number of men who commit crime
from the various separate causes. In logic and philosophy it really
shows that, a certain heredity placed in a certain environment, will
meet obstructions and obstacles. Some heredities will carry men further,
and some environments will overcome them more quickly; but as surely as
effects follow from causes, every heredity will meet disaster in some
way under any environment, and the time and kind of disaster it meets
depend not upon perverseness or freedom of will, but upon the fortune of
the meeting of heredity with the manifold environment that surrounds
every life. It must be plain that life lasts only as long as it makes
adjustments. That it consists only of adjustments. That, ordinarily,
strong heredity and a good environment will serve the longest. That,
generally, a weak heredity and a poor environment will meet disaster
soonest. Life may be lengthened either by improving the heredity or the
environment or both. Whatever catastrophe overtakes it and the time it
falls depend not upon the will of the machine, but upon the character of
the machine that starts on the journey and the road it travels. The
disasters cannot in reason or justice be divided into criminal or
non-criminal. They are all natural; they are each and all inevitable.
Each is the inevitable destruction of a machine which could stand so
much, but which could stand no more. And in each, in spite of both
heredity and the general environment, the constant meeting with other
machines due to pure luck and chance is a great factor, if not the chief
factor, that determines the individual life.
XXXV
PARDONS AND PAROLES
It has always been the province of the Chief Executive of a state or
nation to grant pardons or clemency to those who are confined in prison.
This is largely to correct the mistakes of courts and juries and is
often indulged in by presidents and governors at Christmas time.
Experience shows that during the trial of a case, especially one that
causes public notice and general discussion, injustice is frequently
done. Often the defendant is convicted when he should have been
acquitted, and still more frequently punishments are excessive and
cruel. Almost never is any serious inquiry made as to the heredity and
environment of the accused. Probably trial by jury has served to save
many defendants where the judge would have convicted, and has still more
often tempered and modified penalties. Still, juries are by no means
free from the mob psychology that surrounds and affects most important
and well-known cases. Jurors are generally none too intelligent and not
very ready to stand against public opinion. Most men agree with the
crowd. The prevailing religious opinion and the dominant political and
social ideas are accepted and believed by the ordinary citizen. Social
and business considerations cause most men to go with the crowd, and in
any case of importance it is easy for a jury to tell the feeling of the
populace. If the case has attracted much attention, the juror knows the
prevailing ideas as to the guilt or innocence of the defendant. When he
takes his seat in the box he almost always shares that feeling. If the
case is not one he has heard of or discussed, he can easily tell by the
actions and surroundings of the court room how public feeling lies. All
lawyers know how readily men feel the sentiment of a court room and how
much easier is the task when the sentiment is their way. Juries are also
apt to have an undue regard for the opinion of the judge. In spite of
the fact that it is their province to pass upon the facts, they are very
watchful of all the judge says and does and are prone to decide a case
as they believe the judge wishes it to be decided. Even when the judge
is not permitted to express any opinions on the facts involved, it is
difficult for him to hide his real feelings, and when his desire is
strong for either side it is easy to make his opinions known.
A jury is more apt to be unbiased and independent than a court, but they
very seldom stand up against strong public clamor. Judges naturally
believe the defendant is guilty. They feel that the fact that an
indictment has been found is a strong presumption against the accused.
The judge regards himself as a part of the administration of justice and
feels that it is a part of his duty to see that no guilty man escapes.
Generally, in the administration of the court he is very closely
connected with the state's attorney and naturally believes that the
attorney would not have procured an indictment, much less pushed a
trial, unless the defendant was guilty.
The whole atmosphere of the court at the time of the trial calls for a
harsher and more drastic dealing with a defendant than would naturally
prevail after the feeling has passed away. For this reason, the
pardoning power is given to the chief executive to correct errors or
undue harshness after the legal proceedings have been finished. Often
after months or years, the persons or family who have suffered at the
hands of the defendant feel like reversing their judgment or extending
charity, and it is not unusual that the prosecutor and judge who
conducted the case ask for leniency and a mitigation of the sentence is
imposed. So often is an appeal made and so frequently is it felt just to
grant clemency, that this part of the duty of the chief executive has
grown to be very burdensome and really impossible for him thoroughly to
perform. The policy of the law is further to give a prisoner some
consideration and in cases of good behavior and mitigating circumstances
to release him before the expiration of his time. In most states this
has called for the creating of a board of pardons and parole. The
statutes fixing penalties for certain offenses provide for a reduction
of a certain number of weeks or months each year, but as a rule courts
take this provision into consideration and figure out the net time they
wish to give the defendant so that there is no clemency except through
pardon or parole.
In most states the duties of the board are very grave and its business
large. With this has generally gone a law providing for the release of
prisoners on parole before their sentences are finished. In these cases
the prisoner is paroled to someone who promises the board to employ him,
and a monthly report is to be made of his conduct for a stated length of
time. He is then given conditional freedom, subject to the revocation of
the parole by the board on the violation of its terms.
The administration of this power has made the parole board one of the
most important, if not the most important, of any branch of the state
government. The lives and well-being of thousands of prisoners are
absolutely dependent on this board. Even more important are the
happiness and well-being of the families of the inmates of the prison.
The power and responsibilities of this board are so great that only men
of the best judgment and of humane and just tendencies should be trusted
with the task. It also calls for great courage such as few men on
boards possess. The public generally clamors for vengeance and unfairly
and unjustly criticises the board, especially when a released man
violates his parole or commits another crime. This frequently happens.
Perhaps on an average ten per cent of those paroled are sent back to
prison before their term expires. All this makes it hard for the board
to perform its duties, and makes the members of the board timid and
doubtful of the result, often causing them to deny paroles in many cases
where they should be given.
A great deal of criticism has been made of the parole system. Public
officials and that part of the crowd that is clamorous for vengeance are
always ready to assail its activities unfairly and unduly. Most
professional criminals are against the parole board. Speaking of the
State of Illinois, I am sure that the parole law, instead of shortening
the time of imprisonment, has lengthened the terms. All lawyers in any
way competent to handle the defense of a criminal case would, in the
event of conviction, almost always get a shorter term for their clients
from a jury or from the court, or even from the prosecutor, than from
the parole board. I feel strongly that the board is too timid and
unwilling to grant paroles. Still in spite of this there can be no doubt
that the parole law is a step in the right direction, and it should be
upheld by all who believe offenders should have a better chance. If
human nature in the administration of law could be relied on; if there
were some method of getting men of courage and capacity with plenty of
competent aid and assistance to take charge of paroles and prisons, then
the ideal sentence should be one that fixed no time whatever. It should
simply leave a prisoner for study and observation until it was thought
wise and safe to release him from restraint. This like all the rest
could not be done with the present public attitude toward criminals. So
long as men subscribe to the prevailing idea of crime and punishment, no
officials could stand up against public opinion in the carrying out of a
new and radical theory, and even if such a board should be established,
the law under which it acted would soon be repealed or the members of
the board forced to resign and a new one would take its place.
In spite of the fact that the effect of parole boards has been to
lengthen sentences, and in spite of my personal belief that they should
be materially shortened, I am confident that the parole system should be
maintained with the hope of improvement and the chance of gradually
educating the public until sentences can be naturally shortened, and the
care and control of prisoners be placed on a scientific and humane
basis.
A board of pardons and paroles should be made up of men who are really
interested in their work. They should carefully keep up with the
literature on crime and punishment; they should be scientists in all
matters touching their work, and they should be men of humane feelings.
It is too much to expect that all of this can be found in a board for a
long time to come, but with good sense and the right attitude of mind
the board could employ the skill that it does not now have. Every
prisoner should be the subject of attention, not of spying, but of
friendly interest that would inspire confidence and trust,--such an
interest as a wise doctor has in a patient. This attention would in most
cases gain the confidence of the prisoner and make it possible to find
out how far he could be trusted, at the same time showing the treatment
and environment he needed for future development. Where this confidence
could not be had, safety would probably require a longer term. Most men
respond to kind treatment. The criminal has so long looked on the world
as his enemy, especially the official world, that he hesitates to trust
anyone. Still the really sympathetic and kindly man who is honestly
trying to help him will sooner or later get his confidence and
coöperation. Every prisoner should understand that all of those around
him are anxious to educate him so as to fit him for society and to put
him in an environment where he can live. Even then there would be
mistakes, and a portion of the prisoners would be so defective or
imperfect that they never could be released; but under proper treatment
many would be restored to association with their fellow-men.
It will be a long time before it will be safe to make sentences entirely
indeterminate. Boards cannot be trusted to give such time and work and
judgment to their task as will prevent cases of great injustice. Until
such time shall come either the statutes must fix an unbending and
arbitrary time which takes no account of individual cases, or it must be
left with the court or jury. Clearly the jury should fix the maximum,
leaving the members of the board to reduce the penalty if they deem it
wise.
Most men are forgotten when they go to prison, especially if they have
no active friends on the outside. No board can fully keep in mind all
the inmates of a large prison. It may be that by some system their
attention is automatically called to the man at certain times, but this
matters very little. Someone should know he is there and why, and who he
is. He should not be an abstract, but a concrete man. For these reasons,
a limit should always be set on a punishment and the limit should not be
too long. The idea of a tribunal, perhaps including the judge who passed
sentence, having the power and the duty imposed upon him to review
sentences and reduce them if it seemed best from time to time, might
have a good effect. The feelings of most men in reference to the degree
of punishment change as time goes by. Always with the punishment is a
strong feeling of both hate and fear. It is not possible really to
punish, that is, to inflict suffering without hate or fear. The most
necessary thing in preparing soldiers to fight, is to teach them to hate
and fear the enemy. In the trial of a case, these feelings are fresh in
the minds of the prosecutor and the judge when the case is finished, and
they necessarily act more or less under the dominance of their passions.
In time these feelings fade, and a saner and kindlier judgment takes the
place of the first feelings that possessed the mind.
With the parole system is going on a movement for probation. This
provides that the convicted man need not be sent to prison but may be
released on certain terms, sometimes requiring that money taken shall be
refunded. After that he shall be placed under the supervision of some
friend or agent who will report from time to time to probation officers
or to the court. Probation is generally granted to young prisoners and
first offenders but usually not permitted in cases that the law
classifies as the most serious.
Parole and probation are much the same in theory. In both these cases
the clemency should depend much more upon the man than on the crime. It
does not follow that a very serious crime shows a poorer moral fibre
than a lesser one. It may well be that the seemingly slight
transgressions, like stealing small amounts, picking pockets and the
like, show a really weaker nature than goes with a more heroic crime.
There is no such liability to repeat in homicide as there is in forgery,
pocket-picking or swindling. The seriousness of a homicide is likely to
make it impossible that the same man shall ever kill again. Many such
men would be perfectly safe on probation or parole. But the smaller
things that are easily concealed and come from an effort of the
condemned to live, either without work or in a better way than his
ability or training permits him to do in the hard and unfair conditions
that society imposes, are often much harder to overcome. At any rate,
the main question should be in regard to the man and not the crime. In
cases of parole or probation, society should do what it can to help the
man make good. Generally employment is necessary and a different and
easier environment often indispensable. If organized society would only
take the pains to make an easier environment for all the less favored,
the problem would be fairly simple and most of the misery that comes
from crime and prison would gradually disappear.
XXXVI
REMEDIES
Students of crime and punishment have never differed seriously in their
conclusions. All investigations have arrived at the result that crime is
due to causes; that man is either not morally responsible, or
responsible only to a slight degree. All have doubted the efficacy of
punishment and practically no one has accepted the common ideas that
prevail as to crime, its nature, its treatment and the proper and
efficient way of protecting society from the criminal.
The real question of importance is: What shall be done? Can crime be
cured? If not, can it be wiped out and how? What rights have the public?
What rights has the criminal? What obligations does the public owe the
criminal? What duties does each citizen owe society?
It must be confessed that all these questions are more easily asked than
answered. Perhaps none of them can be satisfactorily answered. It is a
common obsession that every evil must have a remedy; that if it cannot
be cured today, it can be tomorrow; that man is a creature of infinite
possibilities and all that is needed is time and patience. Given these
a perfect world will eventuate.
I am convinced that man is not a creature of infinite possibilities. I
am by no means sure that he has not run his race and reached, if not
passed, the zenith of his power. I have no idea that every evil can be
cured; that all trouble can be banished; that every maladjustment can be
corrected or that the millennium can be reached now and here or any time
or anywhere. I am not even convinced that the race can substantially
improve. Perhaps here and there society can be made to run a little more
smoothly; perhaps some of the chief frictions incident to life may be
avoided; perhaps we can develop a little higher social order; perhaps we
may get rid of some of the cruelty incident to social organization. But
how?
To start with: it seems to me to be clear that there is really no such
thing as crime, as the word is generally understood. Every activity of
man should come under the head of "behavior." In studying crime we are
merely investigating a certain kind of human behavior. Man acts in
response to outside stimuli. How he acts depends on the nature,
strength, and inherent character of the machine and the habits, customs,
inhibitions and experiences that environment gives him. Man is in no
sense the maker of himself and has no more power than any other machine
to escape the law of cause and effect. He does as he must. Therefore,
there is no such thing as moral responsibility in the sense in which
this expression is ordinarily used. Punishment as something inflicted
for the purpose of giving pain is cruelty and vengeance and nothing
else. Whatever should be done to the criminal, if we have humanity and
imagination, we must feel sympathy for him and consider his best good
along with that of all the rest of the members of the society whose
welfare is our concern.
While punishment cannot be defended, still self-defense is inherent in
both individuals and society and, without arguing its justification, no
one can imagine a society that will not assert it and act for its
defense. This will be true regardless of whether the given society is
worth preserving or not. Inherent in all life and organization is the
impulse of self-preservation. Those members of society who are
sufficiently "anti-social" from the standpoint of the time and place
will not be tolerated unduly to disturb the rest. These, in certain
instances, will be destroyed or deprived of their power to harm. If
society has a right attitude toward the subject, if it has imagination
and sympathy and understanding, it will isolate these victims, not in
anger but in pity, solely for the protection of the whole. Some there
are who ask what difference it makes whether it is called punishment or
not. I think that the attitude of society toward the criminal makes the
whole difference, and any improvement is out of the question until this
attitude influences and controls the whole treatment of the question of
crime and punishment.
If doctors and scientists had been no wiser than lawyers, judges,
legislatures and the public, the world would still be punishing
imbeciles, the insane, the inferior and the sick; and treating human
ailments with incantations, witchcraft, force and magic. We should still
be driving devils out of the sick and into the swine.
Assuming then that man is governed by external conditions; that he
inevitably reacts to certain stimuli; that he is affected by all the
things that surround him; that his every act and manifestation is a
result of law; what then must we and can we do with and for the
criminal?
First of all we must abandon the idea of working his moral reformation,
as the term "moral reformation" is popularly understood. As well might
we cure the physically ill in that way! Man works according to his
structure. He never does reform and cannot reform. As he grows older his
structure changes and from increase of vitality or from decrease of
vitality his habits, too, may change. He may likewise learn by
experience, and through the comparing and recalling of experiences and
their consequences may build up rules of conduct which will restrain him
from doing certain things that he otherwise would do. Anything that
increases his knowledge and adds to his experience will naturally affect
his habits and will either build up or tear down inhibitions or do both,
as the case may be. If he has intelligence he knows he is always the
same man; that he has not reformed nor repented. He may regret that he
did certain things but he knows why and how he did them and why he will
not repeat them if he can avoid it. The intrinsic character of the man
cannot change, for the machine is the same and will always be the same,
except that it may run faster or slower with the passing years, or it
may be influenced by the habits gained from experience and life.
We must learn to appraise rightly the equipment of every child and, as
far as possible, of every adult to the end that they may find an
environment where they can live. It must never be forgotten that man is
nothing but heredity and environment and that the heredity cannot be
changed but the environment may be. In the past and present, the world
has sought to adjust heredity to environment. The problem of the future
in dealing with crime will be to adjust environment to heredity. To a
large extent this can be done in a wholesale way. Any improved social
arrangement that will make it easier for the common man to live will
necessarily save a large number from crime. Perhaps if the social
improvement should be great enough it would prevent the vast majority
of criminal acts. Life should be made easier for the great mass from
which the criminal is ever coming. As far as experience and logic can
prove anything, it is certain that every improvement in environment will
lessen crime.
Codes of law should be shortened and rendered simpler. It should not be
expected that criminal codes will cover all human and social life. The
old method of appealing to brute force and fear should gradually give
place to teaching and persuading and fitting men for life. All prisons
should be in the hands of experts, physicians, criminologists,
biologists, and, above all, the humane. Every prisoner should be made to
feel that the state is interested in his good as well as the good of the
society from which he came. Sentences should be indeterminate, but the
indeterminate sentence of today is often a menace to freedom and a means
of great cruelty and wrong. The indeterminate sentence can only be of
value in a well-equipped prison where each man is under competent
observation as if he were ill in a hospital. And this should be
supplemented with an honest, intelligent parole commission, fully
equipped for thorough work. Until that time comes, the maximum penalty
should be fixed by the jury, the parole board retaining the power to
reduce the punishment or parole. No two crimes are alike. No two
offenders are alike. Those who have no friends on the outside are
forgotten and neglected after the prison doors have been closed upon
them. Some men now are confined much too long; others not long enough.
No doubt, owing to the imperfections of man, this will always be the
case.
At present no penal institutions have the equipment or management to
provide against such shortcomings. They never can have it while men
believe punishment is vengeance. When the public is ready to provide for
the protection of society and still to recognize and heed the impulses
of humanity and mercy, it will abolish all fixed terms. As well might it
send a patient to a hospital for a fixed time and then discharge him,
regardless of whether he is cured or not, as to confine a convict for a
definite predetermined time. If the offense is one of a serious nature
that endangers the public, the prisoner should not be released until by
understanding or education, or age, or the proper form of treatment, it
is fairly evident that he will not offend again. When the time comes, if
it is the day of his incarceration, he should be released. The smallest
reflection ought to teach that for many crimes, especially for many
property crimes, it is hopeless to release a prisoner in an environment
where he cannot survive. An environment adjusted to his heredity must be
found by the state.
All indignities should be taken away from prison life. Instead the
prisoner should be taught that his act was the necessary result of cause
and effect and that, given his heredity and environment, he could have
done no other way. He should by teaching and experience be shown where
he made his mistakes, and he should be given an environment where he can
live consistently with the good of those around him.
Various reforms have been urged in the treatment of criminals and in
criminal procedure in the courts. Most of these impress me as possessing
no fundamental value. It is often said that the accused should be given
an immediate trial; that this and subsequent proceedings should not be
hindered by delay; that the uncertainties of punishment furnish the
criminal with the hope of escape and therefore do not give the community
the benefit of the terror that comes with the certainty of punishment
that could prevent crime. I can see no basis in logic or experience for
this suggestion. It is based on the theory that punishment is not only a
deterrent to crime, but the main deterrent. It comes from the idea that
the criminal is distinct from the rest of mankind, that vengeance should
be sure and speedy and that then crime would be prevented. If this were
true and the only consideration to prevent crime, then the old torture
chamber and the ancient prison with all its hopelessness and horror
should be restored. Logic, humanity and experience would protest against
this. If there is to be any permanent improvement in man and any better
social order, it must come mainly from the education and humanizing of
man. I am quite certain that the more the question of crime and its
treatment is studied the less faith men have in punishment.
England and Continental Europe are often pointed to as examples of sure
and speedy justice. The fact that there are more convictions and fewer
acquittals in England in proportion to the number of trials does not
prove that the English system is better than ours. It may and probably
does mean that ours is better. Here the accused has more chance. There
the expense, the formality, the power of the court all conspire to
destroy every opportunity of escape, regardless of innocence or guilt.
Even the fact that there are fewer crimes committed in England does not
prove that the system is best or that it prevents crime. An old country
with its life of caste lacks the freedom and equality that naturally
produce defiance of rules and customs and lead to breaches of the law.
Other things being equal, a greater degree of freedom leads to more
violations of rules and greater resisting power among the poor than a
lesser degree of freedom. It does not necessarily follow that the
country is best where the people are the most obedient. Complete
obedience leads to submission, to aggression and to despotism. Doubtless
China has fewer crimes than England. The power of resistance is so
crushed that no one thinks of defying a master, resenting an injury,
violating a rule, claiming any personal rights or protesting against
caste, age, or privilege.
Always there are certain men who believe that all reform in criminal
procedure must come by abolishing juries and submitting every question
to a court. Those who are rich and strong and the lawyers who advocate
their interests are mainly arrayed on this side. The poor and
rebellious, with those who naturally or otherwise advocate their cause,
stand for the juries as against the courts. Those who strive to be fair
are often misled from a lack of experience and little judgment of human
nature. The public is always against the accused. The press is against
him. The machinery of the law is against him. The dice are loaded for
his conviction. Some people have childish faith in the courts. But
judges are neither infinitely wise nor infinitely good; they come from
the ranks of lawyers and for the most part from those who have been long
engaged in defending property rights; they are generally conservative;
they are not independent of public opinion; almost invariably they
reflect public opinion, which means the public opinion of the community
in which they live. Few of them have much knowledge of biology, of
psychology, of sociology, or even of history.
One curse of our political life comes from the fact that as soon as a
man has secured an office, he has his eye on another and his whole
effort is to please the people, that is, the people who express
themselves the most easily. Very few judges rise to a great degree of
independence or defy popular clamor. A jury is less bound by public
opinion; their responsibility is divided; they are not as a rule seeking
office; while swayed by the crowd they are still more independent than
judges and with them the common man, the accused, has a better chance.
No doubt judges are abler, better educated, more accustomed to weighing
evidence and able to arrive at a more logical conclusion than most
juries. Still none of these qualities necessarily leads to just
findings. Questions of right and wrong are not determined by strict
rules of logic. If public opinion could come to regard the criminal as
it does the insane, the imbecile, or the ill, then a judicial
determination would be the best. But as long as crime is regarded as
moral delinquency and punishment savors of vengeance, every possible
safeguard and protection must be thrown around the accused. In the
settling of opinions and the passing of judgments, mob psychology is
all-powerful and really, in the last analysis, every human question
comes down to the power of public opinion.
The first thing necessary to lessen crime and to relieve victims from
the cruelty of moral judgments is a change of public opinion as to human
responsibility. When scientific ideas on this important subject shall be
generally accepted, all things that are possible will follow from it.
Some headway has already been made in the direction of considering
heredity and environment. Theoretically we no longer hold the insane
responsible, and some allowance is made for children and the obviously
defective. The discouraging thing is that the public is fickle and
changeable, and any temporary feeling overwhelms the patient efforts of
years. In the present mad crusade against crime consequent upon the
Great War, penalties have been increased, new crimes created, and
paroles and pardons have been made almost impossible. The public and
press virtually declare that even insanity should not save the life of
one who slays his fellow. Repeatedly the insane are hanged without a
chance, and sentences of death are pronounced, where before, a term of
years, or life imprisonment would have been the penalty for the offense.
Individual men and collections of men are ruled not by judgment but by
impulse; the voice of conscience and mercy is always very weak and
drowned by the hoarse cry for vengeance.
As long as men collectively impose their will upon the individual
units, they should consider that this imposition calls for intelligence,
kindliness, tolerance and a large degree of sympathy and understanding.
In considering the welfare of the public: the accused, his family and
his friends should be included as a part. It need not be expected that
all maladjustments can ever be wiped out. Organization with its close
relation of individual units implies conflict. Nevertheless, the effort
should be to remove all possible inducement for the violent clashing of
individuals and to minimize the severity of such conflicts as are
inevitable.
THE END
INDEX
Accidents, inevitability of, 48;
conditions affecting chances of, 253;
law of averages in, 259.
Acquisition, instinct for, 49-50, 51;
power of, not a measure of brain capacity, 51-54.
Adultery, crime of, 90-91.
Adventure, chance for, an incentive to crime, 54, 55, 79, 93.
Age, relation of, to crime, 251;
and disease, 252, 253.
Alcohol, relation of crime to use of, 197-198.
America, emotional side of man neglected in, 55;
high ratio of property crimes per capita in, 98;
system of justice in, superior to that of European countries, 281.
Ancestry, effects of, 126-128.
_See_ Heredity.
Anger, as one underlying motive in punishment, 12;
the cause of killings, 83.
Animal, man a predatory, 94-100.
Animal life, man's origin and development the same as that of other, 29-34.
"Anti-social," significance of term, 5-6.
Art, satisfaction of emotions by, 55.
Automobile, effect of the, on crime, 208-211.
Beauty, appeal of, to man's emotional side, 55.
Bible, vengeance as purpose of punishment shown by, 13-14.
Boys, development of criminals from, 58-64, 75-80;
sex crimes among, 90-91;
and the automobile lure, 210-211.
Buckle, H. T., "History of Civilization," cited, 102-103.
Burglar, development of a, 58-60, 62, 92-93.
Burglary, crime of, 92-93.
Capital punishment, question of, 166-171.
Chance, man as subject to element of, 255-262.
Children, as criminals, 75-80;
sex crimes among, 90;
rights of property unknown to, 107.
Christianity, Pliny's correspondence with Trajan regarding, 225-228.
Christians, belief of early, in punishment as vengeance, 14-19.
Cities, relative prevalence of crime in, 75-79, 207-208;
crimes against property in, 99.
Civilization, limitations built up around heredity by, 42-43;
growth of crime coincident with growth of, 203-211;
the road to decay, 211-212;
does not mean the humanizing of men, 228-229;
new evils and new complexities with each new, 229.
Confidence game in obtaining property, law against, 137.
Conscience, as a guide to conduct, 4-5, 109.
Conspiracy, statute concerning, 136-137.
Convicts, in prison and after 120-123, 230-232;
good found in, 181.
Courts, growth in number and kind of, 139.
Crime, defined, 1-11;
purpose of punishment of, 12-27;
failure of punishment as a deterrent from, 21-24;
need for better understanding of, by the public, 27;
responsibility for, 28-36;
part played by heredity and environment in, 36;
among women, 71-74;
of homicide, 81-87;
due to sex relations, 88-91;
of robbery and burglary, 92-93;
performed against property, 101-108;
question of increase in, 134-142;
industrialism and, 203-208;
increase of, due to the automobile, 208-211;
war and, 213-220;
disease, accident, and, 250-254;
elements of luck and chance as related to, 255-262;
remedies for, 273-285.
Criminal, scope of word, 1-6;
one who violates "folk-ways" of his community, 6-9;
purpose of punishment of the, 12-27;
need for better understanding of, 27;
reasons for existence of, 56-70;
the female, 71-74;
the juvenile, 75-80;
attitude of the, 109-115;
the law and the, 116-129;
effect on others of punishment of, 158-160;
stigmata of, 172-177;
the good in the, 178-182;
pardon, parole, and placing on probation of, 263-272.
Criminal conduct, psychology of, 44-55.
Dante, the hell of, 15.
Death penalty, methods of inflicting, 163.
Defectives, discussion of the, 183 ff.;
in prisons, 184-185;
proposed isolation or sterilization of, 233-249.
Disease, treatment of crime contrasted with that of, 139-140, 154,
230-232;
crime, accidents, and, 250-253.
Doctors, employment of, in trials, as experts, 143-149.
Dugdale, R.L., study of "The Jukes" by, 244-248.
Education, a response to suggestion, 65;
importance of, to the child, 77-78;
of the subnormal and the backward, 237.
Edwards, Jonathan, view held by, of punishment as vengeance, 17-19.
Emerson, R. W., on non-obedience to law, 114.
Emotions, factor of, in human action, 46-55;
lack of satisfaction of, in American scheme of things, 55.
England, system of justice in, 281.
Environment, man the product of heredity and, 34-36;
relation of heredity and, 37-40;
adjustment of, to heredity, 41-43, 277-278;
relation of, to development of criminal, 57-69;
effects of, 201-202;
necessity of improving, shown by studies of the Jukes and the
Kallikaks, 244-249.
Experts, medical, in courts, 143-149.
Factory system, growth of cities due to, 76;
and crime, 203-212;
Fear, emotion of, in man, 46-47;
instilling of, an object of punishment, 165.
Feeble-minded, distinguishing between the normal and, 185-188.
_See_ Defectives.
Feuds, family, 12.
Flight, instinct of, in man, 46-47.
Folk-ways, crime defined as violation of, 6-7;
enforcement of, by primitive man, 8;
present-day laws descended from, 28;
are still a guide to man, 99-100.
Forgers, development of, 66-68.
Freedom of speech, loss of, as result of World War, 220.
Gang, the boy's, 79.
Genius, a frequent indication of insanity, 239.
Girls, protected life of, as compared with boys, 72;
sex crimes among, 90-91.
Glands, the ductless, and their use, 33-34, 38, 174.
Grant, General, on repealing of bad law, 130.
Grasset, Joseph, "The Semi-Insane and the Semi-Responsible," cited, 239.
Gregariousness, instinct of, in man, 47-48, 50.
Hatred, punishment actuated by, 12-19;
killings traceable to, 83.
Heredity, view of man as the product of environment and, 34-36;
relation of environment and, 37-40;
problem of future, to adjust environment to, 41-43, 277-278;
responsibility of, for the criminal, 57-65;
child criminal as result of, 78-79;
accounting for accused men's actions by, 126-129;
effects of, 201-202;
laws of, not sufficiently known to justify sterilization, 237-238.
Homicide, the crime of, 81-87.
Ignorance, disease due to, 252.
Illinois, operation of parole law in, 267
Incest, crime of, 89-90.
Indeterminate sentence, the, 268-271, 278.
Industrialism and crime, 76, 203-212.
Insane, restraint of, a measure of self-protection, 26;
treatment of, 144;
in prisons, 184-185;
allowances for, in criminal codes, 187-190;
legal tests of, not logical or humane, 190-192.
Instinct, human action largely governed by, 44-54;
stress placed on, as motive power of life, 81-83.
Intelligence tests, use of, 185-186.
Intolerance, a persisting source of evil, 228-229.
Isolation of the subnormal, 233-249.
Jealousy, crime traceable to, 84-85.
Jesus, doctrine of vengeance repudiated by, 13-14.
Judges, attitude of, 282-283.
Jukes family, study of the, 244-248;
wrong deductions from, 248-249.
Juries, attitude of, toward women criminals, 72, 73, 85;
decision as to sanity of defendants left to, 144;
abolition of, proposed by some, 282;
better chances for the common man with, 283.
Juvenile Courts, 59, 139.
Juvenile Prison, the, 59.
Kallikak family, results of environment rather than heredity shown by, 249.
Kidnapping, death penalty sometimes advocated for, 156.
Killings. _See_ Homicide.
Kleptomania, a form of insanity, 191-192.
Labor, manual, and its poor pay, 69;
training for manual, in schools, 69-70.
Law, a codification of a custom, 8;
and its infraction, 110-114;
the criminal and the, 116-129;
repealing of, 130-133;
shortening and simplification of codes of, 278.
Laws, feeling against so-called property, 112.
Legislation, restrictive, resulting from World War, 220.
Legislatures, fixing of punishments by, 155-156.
Lockouts, crimes resulting from, 102.
Lombroso, C, discarded theory of, 172.
Luck, element of, as affecting man, 255-262.
Man, origin and development of, like that of other animal life, 29-34;
the product of heredity and environment, 34-36;
as a predatory animal, 94-100;
the outlook for, 274.
Milton, the hell of, 15.
Mind, operations of the, clouded in mystery, 24;
seat of, in whole physical organism, 174.
Money-getting, brain power not involved in, 51-54;
crimes due to passion for, 104-105.
Murder, not a profession like burglary or other crimes, 62;
by robbers and burglars, 93.
Music, satisfaction of emotions by, 55.
Negroes, disregard of laws pertaining to, 132.
Pacifism, a dream, 218-219.
Panics, strikes following on, 102.
Pardons, granting of, to criminals, 263-272.
Parole, release of prisoners on, 265-272.
Parole boards, 22;
responsibilities of, 266-272;
need of, for honesty, intelligence, and thorough equipment for work,
278-279.
Parole laws, 218-219.
Pick-pocket, development of the, 60-62.
Pliny, letter of, quoted, 225-228.
Poverty, relation between crime and, 101-102, 172, 176-177;
of men charged with crime, 120.
Prisoners, situation of, 120-123;
proposed remedial measures affecting, 273-282.
Prisons, reformation not accomplished in, 20-21.
gradual improvement in, 163-164.
Probation, system of, 271-272.
Prohibition laws, 138;
effect of, on crime, 197-198;
Property, crimes against, 97-99;
normal results of civilization, 100;
discussion and analysis of, 101-108.
Pugnacity, instinct of, in man, 47, 48.
Punishment, purpose of, 12 ff.;
hatred and vengeance as moving purposes of, 12-19;
reformation viewed as aim of, 19-21;
as a deterrent from crime, 21-24;
impossibility of justifying, by any reasoning, 25-27;
determining correct basis of fixing, 150-157;
effects of too drastic, 156-157;
results of, to others than the subject, 158-160;
evolution of, 161-165;
capital, 166-171;
viewed as cruelty, not as a remedial measure, 275.
Rape, crime of, 88-89, 91.
Reason, slight effect of, on actions of men, 44-55.
Reformation, viewed as purpose of punishment 19-21;
impossibility of moral, of man, 276-277.
Religion, emotional life supplied by 54-55;
in early times, subjects for criminal code furnished by, 161-163;
criminal code created with growth of, 223-224.
Repulsion, instinct of, in man, 47.
"Revelations of St. Peter," quotation from, 14-17.
Revenge. _See_ Vengeance.
Revenue laws, common violation of, 132.
Revolutionists, position of, 114.
Robbery, crime of, 92-93.
Sabbath observance, disregard of laws concerning, 132.
Self-protection, a justification of imprisonment, 25.
Sentences of prisoners, basis of fixing, 156-157;
indeterminate, 268-271, 278.
Sentimentalism, defense of, 168-169.
Sex instinct in man, 45, 48-49;
jealousy and revenge caused by, 84-85;
crimes resulting from, 88-91.
Shoplifting, kleptomania and, 191-192.
Social control, theory of, 136;
discussion of, 193-202.
Spanish Inquisition, ravages of the, 224.
Sterilization of the defective, 233-249.
Stigmata of the criminal, 172-177.
Strikes, crimes following on, 102.
Suggestion, power of, on human mind, 24, 65.
Sumner, W.G., "Folkways" by, 131.
Taboos, adoption of, by primitive man, 7-8.
Tests, physical, of prisoners, 176-177;
intelligence, for grading mentality of the backward, 185-186.
Trajan, correspondence between Pliny and, 225-228.
Vengeance, origin in, of idea of punishment, 12-19;
punishment inflicted solely for, not as remedial measure, 275.
War, encroachments on liberty during, 114-115;
effect of, on crime, 213-220.
Weather, relation between crime and, 250.
Westermarck, E.A., "History of Human Marriage," cited, 89.
Witchcraft, hangings for, 224.
Women, as criminals, 71-74;
shoplifting by, 191-192.
World War, underlying cause of, 106;
encroachments on liberty during, 115;
increase in crime since close of, 214-217;
spirit of super-patriotism a result of, 219-220;
restrictive legislation due to, 220.
Young, care of the, resulting from mother-instinct, 45-46.
End of Project Gutenberg's Crime: Its Cause and Treatment, by Clarence Darrow
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An alternative method of locating eBooks:
https://www.gutenberg.org/GUTINDEX.ALL
