hard to get it repealed. Men are lazy and cowardly; politicians look for
votes; members of legislatures and Congress are not so much interested
in finding out what should be done, as they are in finding out what the
public thinks should be done. Often a law lingers on the books long
after the people, no longer believing the forbidden thing to be wrong,
have repealed it. The statute stays, to be used by mischievous people
and by those who believe in the particular law.
Often the unthinking lay hold of a catch-word or a pet phrase and repeat
and write it, as if it were the last word in social science and
philosophy. General Grant, when president, stumbled on such a silly
combination of words, and surface-thinkers have been repeating it ever
since, simply because it sounds wise and pat. Grant once said that, "The
way to repeal a bad law is to enforce it." Grant was not a statesman nor
a philosopher. He was a soldier. He probably heard some one use this
phrase, and it sounded good to him. Out of that has grown the further
statement which courts and prosecutors have used to excuse themselves
for the cruelty of enforcing a law that does violence to the feelings of
the people. This statement is to the effect that so long as the law is
on the books, it is the duty of officers to enforce it. The smallest
investigation of the philosophy of law shows how silly and reactionary
such statements are.
One thing should be remembered. Laws really come from the habits,
customs and feelings of the people, as interpreted or understood by
legislative bodies. When these habits and customs are old enough they
become the folk-ways of the people. Legislatures and courts only write
them down. When the folk-ways change the laws change, even though no
legislature or judge has recorded their repeal.
Since Professor Sumner of Yale University wrote his important book,
"_Folkways_," there is no excuse for any student not knowing that this
statement is true. As a matter of fact, no court ever enforced all the
written laws, or ever would, or ever could. Only a part of the discarded
criminal law is ever repealed by other laws. The rest dies from neglect
and lack of use. It is like the rudimentary parts of the human anatomy.
Man's body is filled with rudimentary muscles and nerves that, in the
past, served a purpose. These were never removed by operations, but died
from disuse. Every criminal code is filled with obsolete laws, some of
them entirely dead, others in the course of dissolution. They cannot be
repealed by statute so long as an active minority insists that they
remain on the books. When the great mass no longer wants them, it is
useless to take the trouble to repeal them. The fugitive slave law was
never believed in and never obeyed, and it was openly violated and
defied by the great mass of the people of the North. The Fourteenth and
Fifteenth Amendments to the Federal Constitution, and the statutes
passed to enforce them, providing political and civil equality for the
black man, and forbidding discrimination on railroads, in hotels,
restaurants, theatres and all public places, have never really been the
law in any state in the Union. Their provisions have always been openly
violated and no court would think of enforcing them, for the simple
reason that public sentiment is against it. Laws condemning witchcraft
and sorcery both in Europe and America did their deadly work and died,
for the most part, without repeal. Sabbath laws of all sorts forbidding
work and play and amusements are dead letters on the statute books of
most states, in spite of many attempts to galvanize them into life. All
kinds of revenue laws are openly violated. Most tax-payers of
intelligence who own property violate the revenue law openly and
notoriously, and all courts and officers as well as the public know it.
Many laws which interfere with the habits, customs and beliefs of a
large number of people, like the prohibition laws, never receive the
assent of so large a percentage as to make people conscious of any wrong
in violating them, and therefore people break them when they can. Often
this class of laws is enforced upon offenders who believe the law is an
unwarrantable interference with their rights, and thus causes
convictions where no moral turpitude is felt.
Every new crusade against crime not only sweeps away a large amount of
work that has been slowly and patiently done toward a right
understanding of crime, but likewise puts new statutes on the books
which would not be placed there if the public were sane. When it does
not do this, it increases penalties which work evil in other directions
and awe courts, juries, governors and pardon boards, not only preventing
them from listening to the voice of humanity and justice, but causing
them to deny substantial rights and wreak vengeance and cruelty upon the
weak and helpless.
XVIII
IS CRIME INCREASING?
The question is often asked, Is crime increasing? Statistics of all
kinds can be gathered on this subject. In the main they seem to show
that crime is on the increase in most civilized countries. It is very
unsafe to use statistics without at the same time considering all the
questions on which conduct rests. An increase of crime, as shown by
statistics, may mean that the records are kept more completely than in
former times. It may mean temporary causes like bad times are adding to
the number of arrests and convictions. It may mean new classifications.
It may mean that figures are based on arrests instead of convictions. It
may include misdemeanors with graver offenses. It may or may not include
repeaters. Statistics in any field are useful, but usually for broad
generalizations, and they must always be interpreted by men of
experience who are not interested in the results. Still, on the whole,
it is probable that statistics show that crime is on the increase. What
have reason and human experience to say on the subject?
We should always bear in mind that crime can never mean anything except
the violation of law, when the violator is convicted; that it has no
necessary reference to the general moral condition of man. Is the number
of criminal convictions growing, and if so why? In the first place, the
criminal code is lengthening every year. When civilized man began making
criminal codes, there were comparatively few things forbidden. The codes
were largely made up of those acts which, in some form, have for ages
been generally thought to be criminal. Religious beliefs, customs and
habits were included in the penal statutes. So were such things as
sorcery and witchcraft. Property was then not an important subject in
man's activities. When the instinct to create and accumulate property
began to rule life, the criminal code grew very rapidly. Complex
business interests, combined with the constantly increasing value placed
on property, were always calling for new statutes.
The same tendency, indirectly, demanded still other statutes until at
the present time this class of crimes makes up a large part of the
criminal code and is growing steadily each year. Then too, the necessity
of property has called for the violation of this part of the criminal
code more than any other, and it has naturally caused a considerable
increase of crime. Man in his social and political activities is ever
weaving and bending and twisting back and forth. For a number of years
the universal tendency, especially in America, has been toward what is
called "Social Control", the idea being that more and more people should
be controlled in an increasing number of ways. Of course, if people are
to be controlled they must be controlled by other people. This policy
has been extended until we are ever pushing further into the regulation
of the habits, customs and lives of all the individual members of the
community. The majority, when it has the power, has never hesitated to
force its ways of living, its ideas, customs and habits on the minority.
The majority, when strong enough, has always assumed that it was right,
and provided that others must live its way or not at all. The pendulum
is now swinging far this way as is evidenced by prohibition, the
persistent campaign for Sunday laws, and the growing belief in social
control as a means of changing and directing humanity.
This has added to the criminal code and has increased the number of men
in prisons. Two statutes of recent date in most of the states are
responsible for a very large increase in the number of convicts. The
conspiracy statute which is used today is a deliberate scheme on the
part of prosecutors to get men into the penitentiary by charging an
agreement or confederation of two or more persons to do something,
which, if really committed, would be a misdemeanor, or no crime
whatever. Under this charge, whether made specifically or in connection
with another crime, the rules of evidence have been opened and relaxed
until the wildest and most remote hearsay is freely admitted for the
plain purpose of convicting men who have really been guilty of no
specific act. It is in effect punishing one for his thoughts; the
business of the court or jury being to find out whether in some
particular he has an evil mind.
The statute forbidding the use of the "confidence game" in obtaining
property sends to prison a constant stream of persons who, until a few
years ago, would have been guilty of no crime. This law, as interpreted
by the courts, really means the procuring of money by dishonest means.
Under this statute the court and jury hear the evidence and say whether
the means charged are dishonest or not. This, of course, leaves the law
so that the temporarily prevailing power, perhaps only the prosecuting
attorney, may send men to prison who take means of getting money that
are not practiced or at least advocated by the ones who procure the
passage and enforcement of the law.
Numberless ways used by the strong to get money are considered dishonest
by a large class of men and women: exaggerated and lying advertisements,
forestalling the markets, the acts and wiles of the professional
salesman, misrepresenting goods and other methods that could never be
catalogued because new ways are constantly coming to light. The logical
end of all these indefinite and uncertain laws is to pass one statute
providing that whoever does wrong shall be imprisoned, _et cetera, et
cetera_. The law never can specify all the ways of doing wrong and many
of the meanest and most annoying things have never been, and from the
nature of things never can be, prohibited by the statutes. No man is a
good citizen, a good neighbor, a good friend, or a good man just because
he obeys the law. The intrinsic worth is determined mainly by the
intrinsic make-up.
Civilization is all the while making it harder for men to keep out of
prison. Especially do the weak and ignorant and poor find that
environment is constantly creating more inhibitions as time goes on.
While rules and customs are prohibiting more and more ways of getting
property, the needs growing out of civilization are always increasing.
The simple inexpensive life of the past has given place to a more
complex way of living, which calls for greater expense and harder work.
It has created rivalry and jealousy to get the things that others have,
and has placed men in a mad race with each other which often leads to
jail or death.
Students of biology are constantly noting the difficulty that hereditary
human traits, which have been evolved for simple reactions and plain
living, find in making the necessary adjustments to the extravagant
demands and complicated environment of the present day. This departure
from the old normal and simple environment, due largely to machinery and
commerce, is not only destroying individual lives by the thousands, but
is seriously threatening the whole social fabric.
The creation of new courts, like "Boys' Courts," "Juvenile Courts,"
"Courts of Domestic Relations," "Moral Courts," with their array of
"Social Workers," "Parole Agents," "Watchers," _et cetera,_ shows the
growth of crime and likewise the hopelessness of present methods to deal
effectively with a great social question. Numbers of people in our big
cities are making their living from the abnormal lives of children.
Whether they are doing good or not, or whether their service is
unselfish, as much of it doubtless is, are both quite aside from the
question. The important fact is that the present system brings no
results and that the disease is growing.
Instead of any considerable number of people taking hold of the question
of crime, as physicians have taken hold of disease, and seeking to find
its cause and to remove that cause, we content ourselves with
prosecuting and punishing and visiting with misery and shame, not only
the boys and girls, the men and women, who are the victims of life, but
the large number of fathers, mothers, brothers, sisters, sons and
daughters, whose lives are ruined by a catastrophe with which at least
they had nothing to do. If a doctor were called in to treat a case of
typhoid fever, he would probably find out where the patient got his milk
supply and his drinking water and would have the well cleaned out to
stop the spread of typhoid fever through infection. A lawyer called to
treat the same kind of a case, legally speaking, would give the patient
thirty days in jail, thinking that this treatment would effect a cure.
If at the end of ten days the patient were cured, he would nevertheless
be kept in prison until his time was out. If at the end of thirty days
the disease was more infectious than ever, the patient would be
discharged and sent upon his way to spread contagion in his path.
The transgression of organized society in the treatment of crime would
not be so great if students and scientists had not long since found the
cause of crime. It would be hard to name a single man among all the men
of Europe and America who have given their time and thought to the
solution of this problem, who has not come to the conclusion that crime
has a natural origin, and that the criminal for the most part is the
victim of heredity and environment. These students have pointed the way
for the treatment of the disease, and yet organized government that
spends its millions on prosecutions, reformatories, jails,
penitentiaries and the like, has scarcely raised its hand or spent a
dollar to remove the cause of a disease that brings misery and despair
to millions and threatens the destruction of all social organization! To
the teaching of the student and the recommendations of the humane the
mob answers back: "Give us more victims, bigger jails, stronger prisons,
more scaffolds!"
Not only has the constant multiplication of penal laws helped without
avail to fill jails, but the failure to repeal laws that are outgrown
does its part. As already stated, there are many anti-social and
annoying things that can be done without violating the law. This, no
doubt, is responsible for some of the general statutes like that aimed
at the confidence game that catches a victim when the crime is not
clearly defined as in "robbery," "burglary," "larceny" and the like.
Still it has been the general opinion of those who have studied crime
and influenced the passage of penal laws, that criminal statutes should
be clear and explicit so that all would know what they must not do. It
is obvious that if one is to be punished simply for doing wrong, there
could be no judges or juries or jailers condemning and punishing and no
crowds shouting for vengeance. All do wrong and do it over and over
again, and day by day. It is not only those specific things that the
great majority think are wrong, but the graver offenses that are meant
to be the subject of criminal codes. Of course, codes do not work out
this way in practice. In effect, they forbid the things that the
strongest forces of the community wish forbidden, things which may or
may not be the gravest and most anti-social acts, but which at least
seem to the strong to be most hostile to their interests and ruling
emotions.
XIX
MEDICAL EXPERTS
So long as the ordinary ideal of punishment prevails, a crime must
consist of an act coupled with an intent to do the thing, which probably
means an intent to do evil. This is no doubt the right interpretation of
intent, although cases can be found, generally of a minor grade, which
hold that evil intent is not necessary to the crime. Under the law as
generally laid down, insanity is a defense to crime when the insanity is
so far advanced as to blot out and obliterate the sense of right and
wrong or render the accused unable to choose the right and avoid the
wrong. Of course, legal definitions of scientific terms, processes, or
things, do not ordinarily show the highest wisdom. It is safe to say
that few judges or lawyers have ever been students of insanity, of the
relation of "will" to "conduct," or of other questions of science or
philosophy. Each man confines himself to his field of operation, and the
love of living does not induce him to go far from the matter in hand,
which to him means the base of supplies.
The insane are exempted from punishment for crime on the ground that
they are not able to prepare and attend to their cases when placed on
trial and on the further ground that their "free will" is destroyed by
disease or "something else," and therefore they could form no intent. In
another place I have tried to point out the fact that the acts of the
sane and the insane are moved by like causes, but this is not the theory
of the law.
Insanity is often very insidious. Many cases are easily classified, but
there is always the border line, the twilight zone, which is sure to
exist in moral questions and in all questions of human conduct, and this
is hard to settle. It is generally determined by the feelings of a jury,
moved or not by the prejudice of the public, depending on whether the
community has been lashed or persuaded to take a hand in the conduct of
the case.
Lawyers and judges are not psychologists or psychiatrists, neither are
juries. Therefore the doctor must be called in. As a rule, the lawyer
has little respect for expert opinion. He has so often seen and heard
all sorts of experts testify for the side that employs them and give
very excellent reasons for their positive and contradictory opinions,
that he is bound to regard them with doubt. In fact, while lawyers
respect and admire many men who are expert witnesses, and while many
such men are men of worth, still they know that the expert is like the
lawyer: he takes the case of the side that employs him, and does the
best he can. The expert is an every-day frequenter of the courts; he
makes his living by testifying for contesting litigants. Of course
scientific men do not need to be told that the receipt of or expectation
of a fee is not conducive to arriving at scientific results. Every
psychologist knows that, as a rule, men believe what they wish to
believe and that the hope of reward is an excellent reason for wanting
to believe. It is not my intention to belittle scientific knowledge or
to criticise experts beyond such general statements as will apply to all
men. I have often received the services of medical experts when valuable
time was given without any financial reward, purely from a sense of
justice. But all men are bound to be interested in arriving at the
conclusion they wish to reach. Furthermore, the contending lawyers are
willing to assist them in arriving at the conclusions that the lawyer
wants.
It is almost inevitable that both sides will employ experts when they
have the means. The poor defendant is hopelessly handicapped. He is, as
a rule, unable to get a skillful lawyer or skillful experts. A doctor's
opinion on insanity is none too good, especially in a case where he is
called only for a casual examination and has not had the chance for long
study. The doctor for the prosecution may find that the subject can play
cards and talk connectedly on most things, and as he is casually
visiting him for a purpose, he can see no difference between him and
other men. This may well be the case and still have little to do with
insanity. Experts called for the defense cannot always be sure that the
patient truthfully answers the questions. A doctor must make up his mind
from examining the patient, except so far as hypothetical questions may
be used. In all larger cities, certain doctors are regularly employed by
the prosecution. While it would be too much to say that they always find
the patient sane, it is safe to say that they nearly always do.
Especially is this true in times of public clamor, which affects all
human conduct. A court trial with an insanity defense often comes down
largely to the relative impression of the testimony of the experts who
flatly contradict each other, leaving with intelligent men a doubt as to
whether either one really meant to tell the truth. The jury knows that
they are paid for their opinions and regards them more or less as it
regards the lawyers in the case. It listens to them but does not rely
upon their opinions. Expert testimony is always unsatisfactory in a
contested case. Under present methods, it can never be any different.
There is another danger: juries do not know the difference in the
standing, character and attainments of doctors, so the tendency is
always to find the man who will make the best appearance and testify
the most positively for his side. This is unfair to the expert, unfair
to science, and unfair to the case.
The method for overcoming this difficulty that has received most
sanction from students is that experts shall be chosen by the state and
appear for neither side. This, like most other things, has advantages
and disadvantages. State officials, or those chosen by the state,
usually come to regard themselves as a part of the machinery of justice
and to stand with the prosecuting attorney for conviction. It will most
likely be the same with state defenders. No one who really would defend
could be elected or could be appointed, and it would work out in really
having two prosecutors, one nominally representing the defense. A
defendant should be left to get any lawyer or any expert he wishes. No
one can be sure that the state expert will be better than the others.
All one can say is that state experts may not be partisans, but, in
effect, this would mean that they would not be partisans for the
defendant. The constant association with the prosecutor, the officers of
the jail, the public officials, and those charged with enforcing the
law, would almost surely place them on the side of the state. Such men
must be elected or appointed by some tribunal. This brings them to the
attention of the public and makes them dependent on the public. The
expert's interest will then be the same as the interest of the
prosecutor and the judge.
The prosecuting attorney is not a partisan. His office is judicial. He
is not interested in convicting or paid for convicting, and yet, no sane
person familiar with courts would think that the defendant could be
safely left in his hands. Assuming he is honest, it makes little
difference. Almost no prosecutor dares do anything the public does not
demand. Neither, as a rule, has he training nor interest to study any
subject but the law. The profounder and more important matters affecting
life and conduct are a sealed book which he could not open if he would.
Very soon under our political system the expert business would gravitate
into the hands of politicians, the last group that should handle any
scientific problem. I am free to confess the difficulties of the present
system, but some other way may be even worse. It must always be
remembered that this country is governed by public opinion, that public
opinion is always crude, uninformed and heartless. In criminal cases
there is no time to set it right. The position of the accused is hard
enough at best. He is really presumed guilty before he starts. Every
lawyer employed to any extent in criminal practice knows that in an
important case his greatest danger is public opinion. He would not take
the officers and attachés of the court as jurors, although they might
be good men, for their interest and psychology would be always for
conviction.