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.
codes of law should be shortened and rendered simpler. it should not be expected that criminal codes will cover all human and social life. the old method of appealing to brute force and fear should gradually give place to teaching and persuading and fitting men for life. all prisons should be in the hands of experts, physicians, criminologists, biologists, and, above all, the humane. every prisoner should be made to feel that the state is interested in his good as well as the good of the society from which he came. sentences should be indeterminate, but the indeterminate sentence of today is often a menace to freedom and a means of great cruelty and wrong. the indeterminate sentence can only be of value in a well-equipped prison where each man is under competent observation as if he were ill in a hospital. and this should be supplemented with an honest, intelligent parole commission, fully equipped for thorough work. until that time comes, the maximum penalty should be fixed by the jury, the parole board retaining the power to reduce the punishment or parole. no two crimes are alike. no two offenders are alike. those who have no friends on the outside are forgotten and neglected after the prison doors have been closed upon them. some men now are confined much too long; others not long enough. no doubt, owing to the imperfections of man, this will always be the case.
at present no penal institutions have the equipment or management to provide against such shortcomings. they never can have it while men believe punishment is vengeance. when the public is ready to provide for the protection of society and still to recognize and heed the impulses of humanity and mercy, it will abolish all fixed terms. as well might it send a patient to a hospital for a fixed time and then discharge him, regardless of whether he is cured or not, as to confine a convict for a definite predetermined time. if the offense is one of a serious nature that endangers the public, the prisoner should not be released until by understanding or education, or age, or the proper form of treatment, it is fairly evident that he will not offend again. when the time comes, if it is the day of his incarceration, he should be released. the smallest reflection ought to teach that for many crimes, especially for many property crimes, it is hopeless to release a prisoner in an environment where he cannot survive. an environment adjusted to his heredity must be found by the state.
all indignities should be taken away from prison life. instead the prisoner should be taught that his act was the necessary result of cause and effect and that, given his heredity and environment, he could have done no other way. he should by teaching and experience be shown where he made his mistakes, and he should be given an environment where he can live consistently with the good of those around him.
various reforms have been urged in the treatment of criminals and in criminal procedure in the courts. most of these impress me as possessing no fundamental value. it is often said that the accused should be given an immediate trial; that this and subsequent proceedings should not be hindered by delay; that the uncertainties of punishment furnish the criminal with the hope of escape and therefore do not give the community the benefit of the terror that comes with the certainty of punishment that could prevent crime. i can see no basis in logic or experience for this suggestion. it is based on the theory that punishment is not only a deterrent to crime, but the main deterrent. it comes from the idea that the criminal is distinct from the rest of mankind, that vengeance should be sure and speedy and that then crime would be prevented. if this were true and the only consideration to prevent crime, then the old torture chamber and the ancient prison with all its hopelessness and horror should be restored. logic, humanity and experience would protest against this. if there is to be any permanent improvement in man and any better social order, it must come mainly from the education and humanizing of man. i am quite certain that the more the question of crime and its treatment is studied the less faith men have in punishment.
england and continental europe are often pointed to as examples of sure and speedy justice. the fact that there are more convictions and fewer acquittals in england in proportion to the number of trials does not prove that the english system is better than ours. it may and probably does mean that ours is better. here the accused has more chance. there the expense, the formality, the power of the court all conspire to destroy every opportunity of escape, regardless of innocence or guilt. even the fact that there are fewer crimes committed in england does not prove that the system is best or that it prevents crime. an old country with its life of caste lacks the freedom and equality that naturally produce defiance of rules and customs and lead to breaches of the law. other things being equal, a greater degree of freedom leads to more violations of rules and greater resisting power among the poor than a lesser degree of freedom. it does not necessarily follow that the country is best where the people are the most obedient. complete obedience leads to submission, to aggression and to despotism. doubtless china has fewer crimes than england. the power of resistance is so crushed that no one thinks of defying a master, resenting an injury, violating a rule, claiming any personal rights or protesting against caste, age, or privilege.
always there are certain men who believe that all reform in criminal procedure must come by abolishing juries and submitting every question to a court. those who are rich and strong and the lawyers who advocate their interests are mainly arrayed on this side. the poor and rebellious, with those who naturally or otherwise advocate their cause, stand for the juries as against the courts. those who strive to be fair are often misled from a lack of experience and little judgment of human nature. the public is always against the accused. the press is against him. the machinery of the law is against him. the dice are loaded for his conviction. some people have childish faith in the courts. but judges are neither infinitely wise nor infinitely good; they come from the ranks of lawyers and for the most part from those who have been long engaged in defending property rights; they are generally conservative; they are not independent of public opinion; almost invariably they reflect public opinion, which means the public opinion of the community in which they live. few of them have much knowledge of biology, of psychology, of sociology, or even of history.
one curse of our political life comes from the fact that as soon as a man has secured an office, he has his eye on another and his whole effort is to please the people, that is, the people who express themselves the most easily. very few judges rise to a great degree of independence or defy popular clamor. a jury is less bound by public opinion; their responsibility is divided; they are not as a rule seeking office; while swayed by the crowd they are still more independent than judges and with them the common man, the accused, has a better chance.
no doubt judges are abler, better educated, more accustomed to weighing evidence and able to arrive at a more logical conclusion than most juries. still none of these qualities necessarily leads to just findings. questions of right and wrong are not determined by strict rules of logic. if public opinion could come to regard the criminal as it does the insane, the imbecile, or the ill, then a judicial determination would be the best. but as long as crime is regarded as moral delinquency and punishment savors of vengeance, every possible safeguard and protection must be thrown around the accused. in the settling of opinions and the passing of judgments, mob psychology is all-powerful and really, in the last analysis, every human question comes down to the power of public opinion.
the first thing necessary to lessen crime and to relieve victims from the cruelty of moral judgments is a change of public opinion as to human responsibility. when scientific ideas on this important subject shall be generally accepted, all things that are possible will follow from it. some headway has already been made in the direction of considering heredity and environment. theoretically we no longer hold the insane responsible, and some allowance is made for children and the obviously defective. the discouraging thing is that the public is fickle and changeable, and any temporary feeling overwhelms the patient efforts of years. in the present mad crusade against crime consequent upon the great war, penalties have been increased, new crimes created, and paroles and pardons have been made almost impossible. the public and press virtually declare that even insanity should not save the life of one who slays his fellow. repeatedly the insane are hanged without a chance, and sentences of death are pronounced, where before, a term of years, or life imprisonment would have been the penalty for the offense. individual men and collections of men are ruled not by judgment but by impulse; the voice of conscience and mercy is always very weak and drowned by the hoarse cry for vengeance.
as long as men collectively impose their will upon the individual units, they should consider that this imposition calls for intelligence, kindliness, tolerance and a large degree of sympathy and understanding. in considering the welfare of the public: the accused, his family and his friends should be included as a part. it need not be expected that all maladjustments can ever be wiped out. organization with its close relation of individual units implies conflict. nevertheless, the effort should be to remove all possible inducement for the violent clashing of individuals and to minimize the severity of such conflicts as are inevitable.
