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.