And the Lord showed me [Peter] a very great country outside

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.

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