Where is the human being, in the presence of a dead child or a dead

parent or a dead friend or in the presence of a terrible trouble, that

has not sat down in sorrow and despair and again and again lived over

every circumstance that led to the disaster, asking why he did not turn

this way instead of that way? Why did he not stop here, or go there; why

did he do this or why did he not do that? Why did he not take this short

step? Why did he not think of this or think of that? If only any one of

almost an infinite number of things had been done or left undone, the

dead would be alive or the disaster would not have befallen. Every man

who is honest with himself knows that he has been a creature of

conditions and chance, or at least what is chance as far as a man can

see, and what was clearly chance to him. He knows that if he has met

success, he has only been more in luck than the rest. If he has

intelligence and human sympathy, he feels only pity for the suffering.

He would never punish in vengeance or hatred. He knows that all do the

best they can, with what they have.

Enumerating some of the many causes of crime ought to be an unnecessary

task. To give the number of ways men die or are killed by accident,

means only that sooner or later they die, and if they had not died one

way, they would have died another. It means only that a machine will

inevitably give way in some part, and man may go on finding the weak

spots and strengthening them forever and still the end will come. Fate

does not look for a weak spot; it looks for the weakest and finds it.

Manifold causes produce crime; some men commit it from one cause: some

from another. Statistics only show the number of men who commit crime

from the various separate causes. In logic and philosophy it really

shows that, a certain heredity placed in a certain environment, will

meet obstructions and obstacles. Some heredities will carry men further,

and some environments will overcome them more quickly; but as surely as

effects follow from causes, every heredity will meet disaster in some

way under any environment, and the time and kind of disaster it meets

depend not upon perverseness or freedom of will, but upon the fortune of

the meeting of heredity with the manifold environment that surrounds

every life. It must be plain that life lasts only as long as it makes

adjustments. That it consists only of adjustments. That, ordinarily,

strong heredity and a good environment will serve the longest. That,

generally, a weak heredity and a poor environment will meet disaster

soonest. Life may be lengthened either by improving the heredity or the

environment or both. Whatever catastrophe overtakes it and the time it

falls depend not upon the will of the machine, but upon the character of

the machine that starts on the journey and the road it travels. The

disasters cannot in reason or justice be divided into criminal or

non-criminal. They are all natural; they are each and all inevitable.

Each is the inevitable destruction of a machine which could stand so

much, but which could stand no more. And in each, in spite of both

heredity and the general environment, the constant meeting with other

machines due to pure luck and chance is a great factor, if not the chief

factor, that determines the individual life.

XXXV

PARDONS AND PAROLES

It has always been the province of the Chief Executive of a state or

nation to grant pardons or clemency to those who are confined in prison.

This is largely to correct the mistakes of courts and juries and is

often indulged in by presidents and governors at Christmas time.

Experience shows that during the trial of a case, especially one that

causes public notice and general discussion, injustice is frequently

done. Often the defendant is convicted when he should have been

acquitted, and still more frequently punishments are excessive and

cruel. Almost never is any serious inquiry made as to the heredity and

environment of the accused. Probably trial by jury has served to save

many defendants where the judge would have convicted, and has still more

often tempered and modified penalties. Still, juries are by no means

free from the mob psychology that surrounds and affects most important

and well-known cases. Jurors are generally none too intelligent and not

very ready to stand against public opinion. Most men agree with the

crowd. The prevailing religious opinion and the dominant political and

social ideas are accepted and believed by the ordinary citizen. Social

and business considerations cause most men to go with the crowd, and in

any case of importance it is easy for a jury to tell the feeling of the

populace. If the case has attracted much attention, the juror knows the

prevailing ideas as to the guilt or innocence of the defendant. When he

takes his seat in the box he almost always shares that feeling. If the

case is not one he has heard of or discussed, he can easily tell by the

actions and surroundings of the court room how public feeling lies. All

lawyers know how readily men feel the sentiment of a court room and how

much easier is the task when the sentiment is their way. Juries are also

apt to have an undue regard for the opinion of the judge. In spite of

the fact that it is their province to pass upon the facts, they are very

watchful of all the judge says and does and are prone to decide a case

as they believe the judge wishes it to be decided. Even when the judge

is not permitted to express any opinions on the facts involved, it is

difficult for him to hide his real feelings, and when his desire is

strong for either side it is easy to make his opinions known.

A jury is more apt to be unbiased and independent than a court, but they

very seldom stand up against strong public clamor. Judges naturally

believe the defendant is guilty. They feel that the fact that an

indictment has been found is a strong presumption against the accused.

The judge regards himself as a part of the administration of justice and

feels that it is a part of his duty to see that no guilty man escapes.

Generally, in the administration of the court he is very closely

connected with the state's attorney and naturally believes that the

attorney would not have procured an indictment, much less pushed a

trial, unless the defendant was guilty.

The whole atmosphere of the court at the time of the trial calls for a

harsher and more drastic dealing with a defendant than would naturally

prevail after the feeling has passed away. For this reason, the

pardoning power is given to the chief executive to correct errors or

undue harshness after the legal proceedings have been finished. Often

after months or years, the persons or family who have suffered at the

hands of the defendant feel like reversing their judgment or extending

charity, and it is not unusual that the prosecutor and judge who

conducted the case ask for leniency and a mitigation of the sentence is

imposed. So often is an appeal made and so frequently is it felt just to

grant clemency, that this part of the duty of the chief executive has

grown to be very burdensome and really impossible for him thoroughly to

perform. The policy of the law is further to give a prisoner some

consideration and in cases of good behavior and mitigating circumstances

to release him before the expiration of his time. In most states this

has called for the creating of a board of pardons and parole. The

statutes fixing penalties for certain offenses provide for a reduction

of a certain number of weeks or months each year, but as a rule courts

take this provision into consideration and figure out the net time they

wish to give the defendant so that there is no clemency except through

pardon or parole.

In most states the duties of the board are very grave and its business

large. With this has generally gone a law providing for the release of

prisoners on parole before their sentences are finished. In these cases

the prisoner is paroled to someone who promises the board to employ him,

and a monthly report is to be made of his conduct for a stated length of

time. He is then given conditional freedom, subject to the revocation of

the parole by the board on the violation of its terms.

The administration of this power has made the parole board one of the

most important, if not the most important, of any branch of the state

government. The lives and well-being of thousands of prisoners are

absolutely dependent on this board. Even more important are the

happiness and well-being of the families of the inmates of the prison.

The power and responsibilities of this board are so great that only men

of the best judgment and of humane and just tendencies should be trusted

with the task. It also calls for great courage such as few men on

boards possess. The public generally clamors for vengeance and unfairly

and unjustly criticises the board, especially when a released man

violates his parole or commits another crime. This frequently happens.

Perhaps on an average ten per cent of those paroled are sent back to

prison before their term expires. All this makes it hard for the board

to perform its duties, and makes the members of the board timid and

doubtful of the result, often causing them to deny paroles in many cases

where they should be given.

A great deal of criticism has been made of the parole system. Public

officials and that part of the crowd that is clamorous for vengeance are

always ready to assail its activities unfairly and unduly. Most

professional criminals are against the parole board. Speaking of the

State of Illinois, I am sure that the parole law, instead of shortening

the time of imprisonment, has lengthened the terms. All lawyers in any

way competent to handle the defense of a criminal case would, in the

event of conviction, almost always get a shorter term for their clients

from a jury or from the court, or even from the prosecutor, than from

the parole board. I feel strongly that the board is too timid and

unwilling to grant paroles. Still in spite of this there can be no doubt

that the parole law is a step in the right direction, and it should be

upheld by all who believe offenders should have a better chance. If

human nature in the administration of law could be relied on; if there

were some method of getting men of courage and capacity with plenty of

competent aid and assistance to take charge of paroles and prisons, then

the ideal sentence should be one that fixed no time whatever. It should

simply leave a prisoner for study and observation until it was thought

wise and safe to release him from restraint. This like all the rest

could not be done with the present public attitude toward criminals. So

long as men subscribe to the prevailing idea of crime and punishment, no

officials could stand up against public opinion in the carrying out of a

new and radical theory, and even if such a board should be established,

the law under which it acted would soon be repealed or the members of

the board forced to resign and a new one would take its place.

In spite of the fact that the effect of parole boards has been to

lengthen sentences, and in spite of my personal belief that they should

be materially shortened, I am confident that the parole system should be

maintained with the hope of improvement and the chance of gradually

educating the public until sentences can be naturally shortened, and the

care and control of prisoners be placed on a scientific and humane

basis.

A board of pardons and paroles should be made up of men who are really

interested in their work. They should carefully keep up with the

literature on crime and punishment; they should be scientists in all

matters touching their work, and they should be men of humane feelings.

It is too much to expect that all of this can be found in a board for a

long time to come, but with good sense and the right attitude of mind

the board could employ the skill that it does not now have. Every

prisoner should be the subject of attention, not of spying, but of

friendly interest that would inspire confidence and trust,--such an

interest as a wise doctor has in a patient. This attention would in most

cases gain the confidence of the prisoner and make it possible to find

out how far he could be trusted, at the same time showing the treatment

and environment he needed for future development. Where this confidence

could not be had, safety would probably require a longer term. Most men

respond to kind treatment. The criminal has so long looked on the world

as his enemy, especially the official world, that he hesitates to trust

anyone. Still the really sympathetic and kindly man who is honestly

trying to help him will sooner or later get his confidence and

coöperation. Every prisoner should understand that all of those around

him are anxious to educate him so as to fit him for society and to put

him in an environment where he can live. Even then there would be

mistakes, and a portion of the prisoners would be so defective or

imperfect that they never could be released; but under proper treatment

many would be restored to association with their fellow-men.

It will be a long time before it will be safe to make sentences entirely

indeterminate. Boards cannot be trusted to give such time and work and

judgment to their task as will prevent cases of great injustice. Until

such time shall come either the statutes must fix an unbending and

arbitrary time which takes no account of individual cases, or it must be

left with the court or jury. Clearly the jury should fix the maximum,

leaving the members of the board to reduce the penalty if they deem it

wise.

Most men are forgotten when they go to prison, especially if they have

no active friends on the outside. No board can fully keep in mind all

the inmates of a large prison. It may be that by some system their

attention is automatically called to the man at certain times, but this

matters very little. Someone should know he is there and why, and who he

is. He should not be an abstract, but a concrete man. For these reasons,

a limit should always be set on a punishment and the limit should not be

too long. The idea of a tribunal, perhaps including the judge who passed

sentence, having the power and the duty imposed upon him to review

sentences and reduce them if it seemed best from time to time, might

have a good effect. The feelings of most men in reference to the degree

of punishment change as time goes by. Always with the punishment is a

strong feeling of both hate and fear. It is not possible really to

punish, that is, to inflict suffering without hate or fear. The most

necessary thing in preparing soldiers to fight, is to teach them to hate

and fear the enemy. In the trial of a case, these feelings are fresh in

the minds of the prosecutor and the judge when the case is finished, and

they necessarily act more or less under the dominance of their passions.

In time these feelings fade, and a saner and kindlier judgment takes the

place of the first feelings that possessed the mind.

With the parole system is going on a movement for probation. This

provides that the convicted man need not be sent to prison but may be

released on certain terms, sometimes requiring that money taken shall be

refunded. After that he shall be placed under the supervision of some

friend or agent who will report from time to time to probation officers

or to the court. Probation is generally granted to young prisoners and

first offenders but usually not permitted in cases that the law

classifies as the most serious.

Parole and probation are much the same in theory. In both these cases

the clemency should depend much more upon the man than on the crime. It

does not follow that a very serious crime shows a poorer moral fibre

than a lesser one. It may well be that the seemingly slight

transgressions, like stealing small amounts, picking pockets and the

like, show a really weaker nature than goes with a more heroic crime.

There is no such liability to repeat in homicide as there is in forgery,

pocket-picking or swindling. The seriousness of a homicide is likely to

make it impossible that the same man shall ever kill again. Many such

men would be perfectly safe on probation or parole. But the smaller

things that are easily concealed and come from an effort of the

condemned to live, either without work or in a better way than his

ability or training permits him to do in the hard and unfair conditions

that society imposes, are often much harder to overcome. At any rate,

the main question should be in regard to the man and not the crime. In

cases of parole or probation, society should do what it can to help the

man make good. Generally employment is necessary and a different and

easier environment often indispensable. If organized society would only

take the pains to make an easier environment for all the less favored,

the problem would be fairly simple and most of the misery that comes

from crime and prison would gradually disappear.

XXXVI

REMEDIES

Students of crime and punishment have never differed seriously in their

conclusions. All investigations have arrived at the result that crime is

due to causes; that man is either not morally responsible, or

responsible only to a slight degree. All have doubted the efficacy of

punishment and practically no one has accepted the common ideas that

prevail as to crime, its nature, its treatment and the proper and

efficient way of protecting society from the criminal.

The real question of importance is: What shall be done? Can crime be

cured? If not, can it be wiped out and how? What rights have the public?

What rights has the criminal? What obligations does the public owe the

criminal? What duties does each citizen owe society?

It must be confessed that all these questions are more easily asked than

answered. Perhaps none of them can be satisfactorily answered. It is a

common obsession that every evil must have a remedy; that if it cannot

be cured today, it can be tomorrow; that man is a creature of infinite

possibilities and all that is needed is time and patience. Given these

a perfect world will eventuate.

I am convinced that man is not a creature of infinite possibilities. I

am by no means sure that he has not run his race and reached, if not

passed, the zenith of his power. I have no idea that every evil can be

cured; that all trouble can be banished; that every maladjustment can be

corrected or that the millennium can be reached now and here or any time

or anywhere. I am not even convinced that the race can substantially

improve. Perhaps here and there society can be made to run a little more

smoothly; perhaps some of the chief frictions incident to life may be

avoided; perhaps we can develop a little higher social order; perhaps we

may get rid of some of the cruelty incident to social organization. But

how?

To start with: it seems to me to be clear that there is really no such

thing as crime, as the word is generally understood. Every activity of

man should come under the head of "behavior." In studying crime we are

merely investigating a certain kind of human behavior. Man acts in

response to outside stimuli. How he acts depends on the nature,

strength, and inherent character of the machine and the habits, customs,

inhibitions and experiences that environment gives him. Man is in no

sense the maker of himself and has no more power than any other machine

to escape the law of cause and effect. He does as he must. Therefore,

there is no such thing as moral responsibility in the sense in which

this expression is ordinarily used. Punishment as something inflicted

for the purpose of giving pain is cruelty and vengeance and nothing

else. Whatever should be done to the criminal, if we have humanity and

imagination, we must feel sympathy for him and consider his best good

along with that of all the rest of the members of the society whose

welfare is our concern.

While punishment cannot be defended, still self-defense is inherent in

both individuals and society and, without arguing its justification, no

one can imagine a society that will not assert it and act for its

defense. This will be true regardless of whether the given society is

worth preserving or not. Inherent in all life and organization is the

impulse of self-preservation. Those members of society who are

sufficiently "anti-social" from the standpoint of the time and place

will not be tolerated unduly to disturb the rest. These, in certain

instances, will be destroyed or deprived of their power to harm. If

society has a right attitude toward the subject, if it has imagination

and sympathy and understanding, it will isolate these victims, not in

anger but in pity, solely for the protection of the whole. Some there

are who ask what difference it makes whether it is called punishment or

not. I think that the attitude of society toward the criminal makes the

whole difference, and any improvement is out of the question until this

attitude influences and controls the whole treatment of the question of

crime and punishment.

If doctors and scientists had been no wiser than lawyers, judges,

legislatures and the public, the world would still be punishing

imbeciles, the insane, the inferior and the sick; and treating human

ailments with incantations, witchcraft, force and magic. We should still

be driving devils out of the sick and into the swine.

Assuming then that man is governed by external conditions; that he

inevitably reacts to certain stimuli; that he is affected by all the

things that surround him; that his every act and manifestation is a

result of law; what then must we and can we do with and for the

criminal?

First of all we must abandon the idea of working his moral reformation,

as the term "moral reformation" is popularly understood. As well might

we cure the physically ill in that way! Man works according to his

structure. He never does reform and cannot reform. As he grows older his

structure changes and from increase of vitality or from decrease of

vitality his habits, too, may change. He may likewise learn by

experience, and through the comparing and recalling of experiences and

their consequences may build up rules of conduct which will restrain him

from doing certain things that he otherwise would do. Anything that

increases his knowledge and adds to his experience will naturally affect

his habits and will either build up or tear down inhibitions or do both,

as the case may be. If he has intelligence he knows he is always the

same man; that he has not reformed nor repented. He may regret that he

did certain things but he knows why and how he did them and why he will

not repeat them if he can avoid it. The intrinsic character of the man

cannot change, for the machine is the same and will always be the same,

except that it may run faster or slower with the passing years, or it

may be influenced by the habits gained from experience and life.

We must learn to appraise rightly the equipment of every child and, as

far as possible, of every adult to the end that they may find an

environment where they can live. It must never be forgotten that man is

nothing but heredity and environment and that the heredity cannot be

changed but the environment may be. In the past and present, the world

has sought to adjust heredity to environment. The problem of the future

in dealing with crime will be to adjust environment to heredity. To a

large extent this can be done in a wholesale way. Any improved social

arrangement that will make it easier for the common man to live will

necessarily save a large number from crime. Perhaps if the social

improvement should be great enough it would prevent the vast majority

of criminal acts. Life should be made easier for the great mass from

which the criminal is ever coming. As far as experience and logic can

prove anything, it is certain that every improvement in environment will

lessen crime.

Crime: Its Cause and Treatment · 第 14 / 15 段