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.