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.
