place. Religious commands and feelings, are higher and more binding on
man than human law. The captains of industry are forever belittling and
criticising all those laws made by legislatures and courts which
interfere with the unrestricted use of property. None of this sort of
legislation has their approval and the courts are regarded as meddlesome
when they enforce it. The anti-trust laws, the anti-pooling laws,
factory legislation of all kinds, anything in short that interferes with
the unrestricted use of property by its owner are roundly condemned and
violated by evasion. On the other hand, so much has been written and
said in reference to the creation of the fundamental rights to own
property, and these rights depend so absolutely upon social arrangements
and work out such manifest injustice and inequality, that there is
always a deep-seated feeling of protest against many of our so-called
property laws. From those who advocate a new distribution of wealth and
condemn the injustice of present property rights, the step is quite
short to those who feel the injustice and put their ideas in force by
taking property when and where they are able to get it.
For instance, a miner may believe that the corporation for which he
works really has no right to the gold down in the mine. As he is digging
he strikes a particularly rich pocket of high-grade ore. He feels that
he does no wrong if he appropriates the ore. Elaborate means are taken
to prevent this, even compelling the absolute stripping of the workman,
and a complete change of clothes on going in and coming out of the mine.
Many laws are put on the books which are of a purely sumptuary nature;
these attempt to control what one shall do in his own personal affairs.
Such laws are brought about by organizations with a "purpose". The
members are anxious to make everyone else conform to their ideas and
habits. Such laws as Sunday laws, liquor laws and the like are examples.
Then, too, every state or nation carries a large list of laws that men
have so long violated and ignored, that they virtually are dead. To
violate these brings no feeling of wrong, but only serves to make men
doubt the evil of violating any law.
It is never easy to get a Legislature to repeal a law. Generally some
organization or committee of people is interested in keeping it alive,
and the members of the Legislature fear losing their votes. Social ideas
are always changing. No laws or customs are eternal. The ordinary man,
and especially the man under the normal, cannot keep up with all the
shifting of a changing world. There is always a fraction of a community
agitating for something new and gradually forcing the Legislature to put
it into law, even against the will of the majority and against the
sentiment of a large class of the community. The organization that wants
something done is always aggressive. The man who wants to prevent it
from being done is seldom unduly active or even alarmed. Many
organizations are eager to get statutes on the books. One seldom hears
of a society or club that is active in getting laws repealed. The
constant change of law, the constant fixing of new values in place of
old ones, is necessary to social life. This means putting new wine into
old bottles, and wine that is much too strong for the bottles. Everybody
can see why some particular law might be violated without a sense of
guilt, but they cannot see how a law they believe in can be violated
without serious obliquity.
Apart from this, there have always been crimes that were not of the
class that implied moral wrong. The acts of the revolutionist who saw,
or thought he saw, visions of something better; the man who is inspired
by the love of his fellow-man and who has no personal ends to gain; the
man who in his devotion to an idea or a person risks his life or liberty
or property or reputation, has never been classed with those who violate
the law for selfish ends. The line of revolutionists, from the beginning
of organized government down to the birth of the United States and even
to the present time, furnishes ample proof of this. And still the
unsuccessful revolutionist meets with the severest penalties. To him
failure generally means death. Men who are fired with zeal for all new
causes are forever running foul of the law. Social organization, like
biological organization, is conservative. All things that live are
imbued with the will to live and they take all means in their power to
go on living. The philosopher can neither quarrel with the idealist who
makes the sacrifice nor the organization that preserves itself while it
can; he only recognizes what is true.
Men have always been obliged to fight to preserve liberty. Constitutions
and laws do not safeguard liberty. It can be preserved only by a
tolerant people, and this means eternal conflict. Emerson said that the
good citizen must not be over-obedient to law. Freedom is always
trampled on in times of stress. The United States suffered serious
encroachments on liberty during the Civil War. During the last war,
these encroachments were greater than any American could have possibly
dreamed; and so far there seems little immediate chance for change.
Still the philosopher does not complain. He sees human passion for what
it is, a great emotion that holds men in its grasp, a feeling that
nothing can stand against. Opposition is destroyed by force, and often
blind, cruel, unreasoning force. Sometimes even worse, this force is
created for selfish ends. There are always those who will use the
strongest and highest emotions of men to serve their private, sordid
ends. Changing social systems, new political ideas, the labor cause, all
movements for religious, social or political change have their zealots;
they are met by the force of convention and conservatism ready to defend
itself, and the clash is inevitable. It is easy to distinguish this sort
of action from the things done by those who are known as criminals.
Their acts are done to serve personal ends. Society may always punish
both, but all men of right ideas will understand that the motive is
different, the equipment and capacity of the men are different, and they
are only in the same class because they each violate the law and are
each responsive to emotions and to feelings that are of sufficient
strength to compel action.
XVI
THE LAW AND THE CRIMINAL
If one were ill with a specific disease and he were sent to a hospital,
every person who touched him, from the time his disease was known until
he was discharged, would use all possible effort to bring him back to
health. Physiology and psychology alike would be used to effect a cure.
Not only would he be given surroundings for regaining health and ample
physical treatment, but he would be helped by appeals in the way of
praise and encouragement, even to the extent of downright falsehood
about his condition, to aid in his recovery.
If such is done of "disease," why not of "crime"? Not only is it clear
that crime is a disease whose root is in heredity and environment, but
it is clear that with most men, at least when young, by improving
environment or adding to knowledge and experience, it is curable. Still
with the unfortunate accused of crimes or misdemeanors, from the moment
the attention of the officers is drawn to him until his final
destruction, everything is done to prevent his recovery and to aggravate
and make fatal his disease.
The young boy of the congested districts, who tries to indulge his
normal impulses for play, is driven from every vacant lot; he is
forbidden normal activity by the police; he has no place of his own; he
grows to regard all officers as his enemies instead of his friends; he
is taken into court, where the most well-meaning judge lectures him
about his duties to his parents and threatens him with the dire evils
that the future holds in store for him, unless he reforms. If he is
released, nothing is done by society to give him a better environment
where he can succeed. He is turned out with his old comrades and into
his old life, and is then supposed by strength of will to overcome these
surroundings, a thing which can be done by no person, however strong he
may be.
For the graver things, the boy or man is taken to the police station.
There he is photographed and his name and family record taken down even
before he has had a hearing or a trial. He is handled by officers who
may do the best they can, but who by training and experience and for
lack of time and facilities are not fitted for their important
positions. I say this in spite of the fact that my experience has taught
me that policemen, as a rule, are kindly and human. From the police
station the offender is lodged in jail. Here is huddled together a great
mass of human wreckage, a large part of it being the product of
imperfect heredities acted upon by impossible environments. However
short the time he stays, and however wide his experience, the first
offender learns things he never knew before, and takes another degree in
the life that an evil destiny has prepared for him. In the jail he is
fed much like the animals in the zoo. In many prisons the jailer is
making what money he can by the amount he can save on each prisoner he
feeds above the rate the law allows of twenty-five or fifty cents a day.
In a short time the prisoner's misery and grief turn to bitterness and
hate; hatred of jailer, of officers, of society, of existing things, of
the fate that overshadows his life. There is only one thing that offers
him opportunity and that is a life of crime. He is indicted and
prosecuted. The prosecuting attorney is equipped with money and provided
with ample detectives and assistants to make it impossible for the
prisoner to escape. Everyone believes him guilty from the time of his
arrest. The black marks of his life have been recorded at schools, in
police stations and examining courts. The good marks are not there and
would not be competent evidence if they were. Theoretically the State's
Attorney is as much bound to protect him as to prosecute him, but the
State's Attorney has the psychology that leads to a belief of guilt, and
when he forms that belief his duty follows, which is to land the victim
in prison. It is not only his duty to land him in jail, but the office
of the State's Attorney is usually a stepping-stone to something else,
and he must make a record and be talked about. The public is interested
only in sending bad folks to jail.
No doubt there are very few State's Attorneys who would knowingly
prosecute unless they believed a man guilty of the offense, but it is
easy for a State's Attorney to believe in guilt. Every man's daily life
is largely made up of acts from which a presumption of either guilt or
innocence can be inferred, depending upon the attitude of the one who
draws the inference.
To a State's Attorney or his assistants the case is one that he should
win. All cases should be won. Even though he means to be fair, his
psychology is to win. No lawyer interested in a result can be fair. The
lawyer is an advocate trying to show that his side is right and trying
to win the case. The fact that he represents the State makes no
difference in his psychology. In fact, he always tells the jury that he
represents the State and is as much interested in protecting the
defendant as in protecting society. He does this so that the jury will
give his statements more weight than the statements of the lawyer for
the defense, and this very remark gives him an advantage that is neither
fair nor right.
The man on trial is almost always poor. It is only rarely that a poor
man can get a competent lawyer to take his case. He is often handed over
to the court for the appointment of a lawyer. The lawyer has no time or
money to prepare a defense. As a rule he is a beginner not fitted for
his job. If he wishes to take the case, he wants it only for the
experience and advertising that it will bring. He is handed a case to
experiment on, just as a medical student is handed a cadaver to dissect.
If the defendant is in jail, he has little chance to prepare his case.
If the defendant had any money he would not know what to do with it. He
is often a mentally defective person. His friends are of the same class
and can do little to help him. The jury are told that they must presume
him innocent, but the accusation alone carries with it the presumption
of guilt, which extends to everyone connected with the case, even to the
lawyer appointed to defend him. It is almost a miracle if the defendant
is not convicted.
Perhaps he is taken out to be hanged--the last act that society can do
for him, or the convicted man is sent to prison for a long or shorter
term. His head is shaved and he is placed in prison garb; he is
carefully measured and photographed in his prison clothes, so that if
he should ever get back to the world he will forever be under suspicion.
Even a change of name cannot help him. While in prison he works and
lives under lock and key, like a wild animal, eager to escape. On
certain days he is allowed to sit at a long table with other
unfortunates like himself, and visit for an hour with mother or father
or wife or son or daughter or friend on the other side. Other prisoners,
so far as he can associate with them, are as helpless and hopeless and
rebellious as he. How they will get out, and when, are their chief
concerns. Many of their guards are very humane. Probably no one seeks to
torture him, but the system and the psychology are fatal. He sees almost
no one who approaches him with friendship and trust and a desire to
help, except his family, his closest friends and his companions in
misery. He knows that the length of his term is entirely dependent upon
officials whom he cannot see or make understand his case. He snatches at
the slightest ray of hope. He is in despair from the beginning to the
end. No prison has the trained men who, with intelligence and sympathy,
should know and watch and help him in his plight. No state would spend
the money necessary to employ enough attendants and aids with the
learning and skill necessary to build him up. Money is freely spent on
the prosecution from the beginning to the end, but no effort is made to
help or save. The motto of the state is: "Millions for offense, but not
one cent for reclamation."
As all things end, prison sentences are generally finished. The prisoner
is given a new suit of clothes that betrays its origin and will be
useless after the first rain, ten dollars in cash, and he goes out. His
heredity and his hard environment have put him in. Now the state is done
with him; he is free. But there is only one place to go. Like any other
released animal, he takes the same heredity back to the old environment.
What else can he do? His old companions are the only ones who will give
him social intercourse, which he needs first of all, and the only ones
who understand him. They are the only ones who will be glad to see him
and help him get a job. There is only one profession for which he is
better fitted after he comes out than he was before he went in, and that
is a life of crime. Of course, he is a marked man and a watched man with
the police. When a crime is committed and the offender is not found, the
ex-convict is rounded up with others of his class to see, perchance, if
he is not the offender that is wanted. He is taken to the lock-up and
shown with others to the witnesses for identification. Before this, the
witness may have been shown his photograph in convict clothes. Perhaps
they identify him, perhaps they do not; if identified, he may be the
man or he may not be. Anyhow, he has been in prison and this is against
him. Whenever he comes out and wherever he goes, his record follows him
as closely as his shadow. Even his friends suspect him. They suspect him
even when they help him.
Such is the daily life of these unfortunates. What can be done? I can
see nothing that the officers of the law can do. Officers represent the
people. They reflect mob psychology. Even though an officer here and
there rises above the crowd, as he sometimes does, it is of no avail.
His place soon is filled by someone else. If only the public would
understand! If only the public were more intelligent, which in this case
at least would mean more human! If only the statement I repeat so often
could be understood! There are no accidents; everything is the result of
law. All phenomena are a succession of causes and effects. The criminal
is the result of all that went before him and all that surrounds him.
Like every other mortal, he is a subject for pity and not for hatred. If
society is not safe while he is at large, he must be confined and kept
under guard and observation. He must be kept until he is safe and a
favorable environment found for him. If he will never be safe for
society, he should never be released. He must not be humiliated, made to
suffer unduly, despised or harried. He must be helped if he can be
helped. This should be the second, if not the first object of his
confinement.
Assuming that the scientific attitude toward crime should be accepted by
those who make public opinion, and that this should become crystallized
into written law, the problem would be easy.
The officers of the state can, as a rule, be depended upon to deal
properly and considerately with the known insane. The insane are more
trying and difficult than the criminal. Courts and juries and the
public, however, recognize their mental condition and do not visit them
with vengeance. It is appreciated and understood that they cannot with
safety be left at large; but they are given the care and consideration
that their condition demands. If the criminal should be looked upon as
are the creatures insane from natural causes, the State's Attorney could
then be trusted to prepare the case and do the best he could for all
concerned. The defendant would no longer be a defendant. His case would
be under investigation; his past life would be shown, his credits as
well as his debits; he would need no lawyer, not even a public defender;
no jury would be required, and the uncertainties and doubts that hang
around judgments would be removed. There would be little chance for a
miscarriage of justice. Even should there be, it would result in the
speedy release of one against whom the public bore no ill-will. One who
was sick or insane would ordinarily not need a lawyer, as the state
would bear him no malice and make no effort to do more than investigate
the case and present the facts. The whole matter should be a purely
scientific attempt to find out the best thing to be done both for the
interest of the public and the interest of the man.
No doubt, in many cases, men are convicted who are perfectly innocent of
the crime of which they are accused. This is especially true with the
poor who can provide for no adequate defense and who perhaps have been
convicted before of some misdemeanor or crime. This is also often true
in cases where there is great prejudice against the defendant, either on
account of the nature of the case or of the defendant on trial. For
instance, during the recent war a wave of hysteria swept over the world,
and courts and juries trampled on individual rights and freely violated
the spirit of laws and constitutions. The close of the war left the same
intense feelings of bitterness which made justice impossible in cases
where the charge savored of treason, and involved criticism of the
government, or advocacy of a change of political systems.
Questions of race, religion, politics, labor and the like have always
awakened violent feelings on all sides, have made bitter partisans and
strict lines of cleavage, and have made verdicts of juries and
judgments of courts the result of fear and hatred. In spite of this,
most of the inmates of prisons have done the acts charged in the
indictments. Why they did them, their states of mind, the conditions and
circumstances surrounding them, what can be done to make them stronger
and better able to meet life are never ascertained, and few courts or
juries have ever deemed these things proper subjects for consideration
or in any way involved in the case.
In law every crime consists of two things: an act and an intent. Both
are necessary to constitute legal guilt, and on the prevalent theory of
moral guilt and punishment both are necessary to make up criminal
conduct. There can be no legal or moral guilt unless one intends
wickedness; unless he deliberately does the act because he wishes to do
wrong and knows he does wrong. The question then of moral guilt, which
is necessary to the commission of a criminal act, touches all the
questions suggested and many more. Even if freedom of action is to some
degree assumed, the question still remains as to the degree of guilt in
fixing punishment and responsibility. The question involves the make-up
of the man, his full heredity, so far as it can be known.
Most of every man's heredity is hidden in the mist and darkness of the
past. He inherits more or less directly through an infinite number of
ancestors, reaching back to primitive man and even to the animals from
which he came. The remote ancestry is, of course, usually not so
important as that immediately behind him. Still, plainly, his form and
structure and the details of his whole machine, including the
marvelously delicate mechanism of the brain and nervous system, are
heritages of the very ancient past. Neither are the processes of
inheritance well understood nor subject to much control. Often in the
making of the man Nature resorts to some "throw-back" which reproduces
the ancient heritage. This can be seen only in general resemblances and
behavior, for the genealogical tree of any family is very short and very
imperfectly known, and the poor have no past. In three or four
generations at the most the backward trail is lost and his family merged
with the species of which he forms but a humble part.
Enough, however, is known of ancestry and the infinite marks of
inheritance on every structure as well as enough of the reaction of the
human machine to the varied environment that surrounds it, to make it
clear that if one were all-seeing and all-wise he could account in
advance for every action of every man. More than this, he could see in
the original, fertilized cell, all its powers, defects and
potentialities and could, in the same manner, look down through the
short years during which the human organism, grown from the cell, shall
have life and movement, and could see its varied environment. If one
could see this with infinite wisdom, he could infallibly tell in advance
each step that the machine would take and infallibly predict the time
and method of its dissolution. To be all-knowing is to be
all-understanding, and this is infinitely better than to be
all-forgiving.
To get this knowledge of the past of each machine is the duty and work
of the tribunal that passes on the fate of a man. It can be done only
imperfectly at best. The law furnishes no means of making these
judgments. All it furnishes is a tribunal where the contending lawyers
can fight, not for justice, but to win. It is little better than the old
wager of battle where the parties hired fighters and the issue was
settled with swords. Oftentimes the only question settled in court is
the relative strength and cunning of the lawyers. The tribunal whose
duty it is to fix the future place and status of its fellowmen should be
wise, learned, scientific, patient and humane. It should take the time
and make its own investigation, and it can be well done in no other way.
When public opinion accepts the belief that punishment is only cruelty,
that conduct is a result of causes, and that there is no such thing as
moral guilt, investigations and sorting and placing of the unfortunate
can be done fairly well. The mistakes will be very few and easily
corrected when discovered. There will be no cruelty and suffering. The
community will be protected and the individual saved.
Neither will this task be so great as it might seem at first glance.
Trials would probably be much shorter than the endless, senseless
bickering in courts, the long time wasted in selecting juries and the
many irrelevant issues on which guilt or innocence are often determined,
make necessary now. Most of the criminal cases would likewise be
prevented if the state would undertake to improve the general social and
economic condition of those who get the least. Only a fraction of the
money spent in human destruction, in war and out, would give an
education adapted to the individual, even to the most defective. It
would make life easy by making the environment easy. Only a few of the
defective, physically and mentally, would be left for courts to place in
an environment where both they and society could live. Perhaps some time
this work will be seriously taken up. Until then, we shall muddle along,
fixing and changing and punishing and destroying; we will follow the old
course of the ages, which has no purpose, method or end, and leaves only
infinite suffering in its path.
XVII
REPEALING LAWS