Crime: Its Cause and Treatment Part 6

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 const.i.tutions. 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 circ.u.mstances 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 const.i.tute 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 a.s.sumed, 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 pa.s.ses 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 punis.h.i.+ng 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.

XVII

REPEALING LAWS

It is comparatively easy to get a penal statute on the books. It is very 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 ma.s.s 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 ma.s.s of the people of the North. The Fourteenth and Fifteenth Amendments to the Federal Const.i.tution, and the statutes pa.s.sed 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 amus.e.m.e.nts 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 a.s.sent 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 cla.s.s 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 cla.s.sifications. 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 acc.u.mulate 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 cla.s.s 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 pus.h.i.+ng 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 a.s.sumed 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 punis.h.i.+ng 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 pa.s.sage and enforcement of the law.

Numberless ways used by the strong to get money are considered dishonest by a large cla.s.s of men and women: exaggerated and lying advertis.e.m.e.nts, 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 pa.s.s 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 punis.h.i.+ng 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 pa.s.sage 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 punis.h.i.+ng 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 cla.s.sified, 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 a.s.sist 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 a.s.sociation 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. a.s.suming 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 attaches of the court as jurors, although they might be good men, for their interest and psychology would be always for conviction.

If defendants were not regarded as moral delinquents, if the examination implied no moral condemnation, if it was only a scientific investigation as to where to place him if he is anti-social, if public opinion supported this view, then experts should be appointed by the court. On this phase of the case there would be little need of experts. I would be willing to go further and say that then, too, the partisan lawyer, the hired advocate, should disappear. The machinery of justice would be all-sufficient to take care of the liberties of every man, to give him proper treatment in disease, to restore him to freedom when safe, and, when that time does come, the unseemly contest in courts will disappear, and justice, tempered with mercy, will have a chance.