Crime and Punishment
WITH all her brilliancy and power, America’s effort to cope with the ugly problem of crime has been for the most part tragic failure. A committee of the American Bar Association appointed to study existing conditions reported that ‘the criminal situation in the United States so far as crimes of violence are concerned is worse than in any other civilized country.’ According to the figures given by Warden Lawes of Sing Sing Prison the average homicide rate for 1911-1921 for England and Wales was .76 per 100,000 of the population, for Canada .54, for Australia 1.88, for South Africa 1.79, for Holland .31, for Norway .82, for Switzerland .18; for the United States, in the registration area covered, it was 7.20. More robberies and assaults with intent to rob are committed in the single city of Cleveland each year than in the whole of England, Scotland, and Wales. A recent investigation showed that during the year the number of automobiles stolen in Liverpool, one and a half times the size of Cleveland, was 10; in London, ten times the size of Cleveland, 290; in Cleveland, 2327.
The actual present cost of crime in the United States has been conservatively estimated at two and a half million dollars a day. In a single year the property loss from thefts in the city of Chicago alone is reported to exceed $12,000,000. Since the war the losses paid by burglary-insurance companies in the United States are said to have grown from $1,686,195 in 1916 to $5,670,760 in 1919, and to $10,189,853 in 1920.
The United States Census Bureau recently stated that, in the returns received from 31 states, ‘there has been a steady increase in the number of prisoners in state prisons and reformatories. . . . The number of prisoners in confinement per 100,000 of the general population increased from 66.0 on January 1, 1923, to 84.1 on January 1, 1927.’ Although reliable statistics are difficult to secure, it seems apparent that each year crime is eating deeper into our civilization.
There is a popular tendency to dismiss all social responsibility by blaming the law and turning to the lawyers alone to work out much-needed reform. I suspect that our shortcomings in home training, in our schools, in the church, in our use of religion, have more to do with the increase of crime than the shortcomings of the law. Moral standards cannot possibly be created by law. Yet our legal machinery cannot escape a heavy share of the blame. The administration of criminal justice is not what it should be.
Largely as a result of the frequent and generally well-meaning attacks upon the law, there has arisen a widespread popular conception that the existing form of our criminal law, developed to meet the needs of a society profoundly different from our own, is a present-day anachronism, and that all the problem needs is men with sufficient courage to storm the strongholds of entrenched judicial conservatism and with sufficient brains to frame a modern, adequate penal code, and the trick will be turned. Unhappily, the problem goes far deeper than that.
I
In the first place, let us not forget that in the prevention of wrongdoing the part played by the law must at best be pitifully small. For instance, the corruption of an adolescent’s character constitutes the gravest kind of social injury; yet no law has ever punished such a crime. Even in those forms of wrongdoing which have become stereotyped as traditional and well-defined crimes, only a small fraction of wrongdoing can be covered. Not every wrongful killing is punishable as homicide; the predatory crimes allow some of the most heinous forms of theft to go unpunished; the sex crimes fail to touch some of the vilest outrages. In the words pronounced by the court in a famous English case where a husband was tried for the murder of his wife, whose death he had only too clearly caused: ‘Mere unkind or unhusbandlike usage is not enough, and there must be violence, physical or corporeal. If the being treated so and turned out of her home had preyed upon her spirits and broken her heart, it is not a case of manslaughter; and human tribunals can take no cognizance of it as a criminal offense.’ Those manufacturers who sweat and exploit labor and then fling it aside, broken, to spend the rest of its days at public expense in the poorhouses and city hospitals; the high financiers who make their fortunes on Wall Street by first securing voting control of large corporations and then proceeding to manipulate them at the expense of the other stockholders for their private gain — these are often of the worst type of predatory criminals; yet the law, because of its inherent limitations, can seldom touch them. Again, the ruffian who overpowers a girl and works his will on her is rightly given a heavy sentence; but he who not only gains his way, but also succeeds in so debasing her character as to win her consent to the outrage, ordinarily goes unpunished.
Under no possible scheme of reform can general wrongdoing be made, in the world of fact, legally punishable. The deepest wrongs are quite generally unsusceptible of proof, or too subtle for precise definition and official detection, or too much a matter of individual conscience to make possible common agreement as to their punishment. At best all we can hope to do is to concentrate our efforts upon the commonest and starkest forms of social injury, realizing always that much outrageous and open wrongdoing must remain forever untouched by the law.
Even within the confines of this narrowly restricted field the law can never be free from what the layman must consider amazing and pettifogging technicalities. For instance, Jim Jones, mistakenly believing that a certain opal ring in Mr. Scott’s house belongs to him because of Mr. Scott’s having promised it to him before they quarreled, decides to take the law into his own hands; and one night he breaks and enters into Mr. Scott’s house and steals the ring. Next morning he discovers that the ring he stole is not the opal ring which he thought his, but Mr. Scott’s diamond ring; nevertheless, he determines to profit by the situation, and proceeds to sell the ring and pocket the proceeds. At common law, and, indeed, under the statutes of many states, Jim Jones has committed no crime. It is not commonlaw burglary because the breaking and entry into the house was not with the intent to commit a felony therein; for the same reason it is not an attempt to commit burglary; nor, unless the very questionable doctrine of ‘continuing trespass’ is applied, is it common-law larceny, because there was no intent to steal at the time of taking the ring into his possession. Consequently, in spite of Jim Jones’s very evident wrongdoing, in spite of his clearly manifest criminal propensities, so far as the common law is concerned, he goes unpunished even though society would seem to suffer precisely the same harm at his hands as at the hands of the ordinary thief. Or again, the burglar who enters by pushing open an unlatched door can be punished in many states by imprisonment for a substantial part of his life; but if he chanced to enter through a door left partly open, without further opening it, in most states he cannot be convicted of burglary at all. Can this be justice? If we are to go to the heart of the matter, must we not sweep away altogether the arbitrary distinctions and harassing technicalities of the law?
Ideas of this kind are widespread. The following extract from a letter published in the Boston Herald at the time of the Sacco-Vanzetti case is typical of a large current of thought. ‘Let us suppose, for the moment,’ says the writer, ‘that the two men now under sentence are not the ones by whose very hands the actual murders were accomplished; they were done by some ones who had the same objects, the same ideas of social life, the same beliefs and purposes in general. ... In a word they were potential murderers all. . . . Then let the sentence be carried out without fear or reproach.’ They were thoroughly bad men; therefore they should be convicted. Let’s have done with technicalities and strike for justice.
Justice without law has ever been an alluring conception. It permits a judge to sacrifice ultimate principles to immediate ends; and this is always of popular appeal. Yet while it is true that justice without law has played a serviceable part and proved a liberalizing element during transitional periods in the development of law, nevertheless in our present society, except in the case of quite minor offenses, justice without law is unthinkable. Our modern economic interests are too vast, our society is too complex, to make it possible to entrust our liberty and our property to the caprice of individual judges unrestricted by law. Law is the price of liberty. Without it the fate of a Daugherty and a Fall would depend largely upon the political stripe of the judge who tried them; the liberty of every capitalist or laboring group without it would depend largely on the conscious or unconscious class bias of the particular judge before whom each might be made to appear.
Once we admit that criminal justice must be based upon law and established standards, how practically shall individuals be singled out for penal treatment ? Theoretically such a selective process should be based upon the results of exhaustive physical, psychiatric, and behavior examinations revealing defects of character, of body, or of mind. But science has not yet progressed to a point where the mentally and morally defective can be picked out with unerring or even substantial accuracy by means of clinical examinations. In the rough and tumble of our workaday world, therefore, the only selective process practicable is a judgment based upon isolated acts and a determination as to whether such acts, when combined with a certain kind of intent, do or do not violate fixed standards which we call law. To accomplish this we must establish in advance certain categories of forbidden acts known as crimes and convict all those who with criminal intent commit such acts. Conversely, if the law is to have certainty and freedom from the bias of the particular judge, everyone who abstains from committing such forbidden acts must be allowed to go free.
That is the ‘pigeonhole’ system of criminal law. It necessitates the precise definition of every crime. When one’s life or liberty depends upon whether one’s conduct falls within or without the line, justice according to law requires that the line be sharply drawn. Should one’s conduct fall but a bare one thousandth of an inch outside of the line, a law of fixed standards must bar conviction. The murderer whose victim dies of the wound within a year and a day of the mortal blow is punishable for the homicide; if the victim dies a year and two days afterward, so far as the homicide charge is concerned, the killer goes free. One day makes the difference between life and death. The result may seem technical and highly arbitrary. But if we are to have justice according to law and are to follow the pigeonhole system of criminal law, such arbitrary lines are absolutely inescapable. They constitute one of the fundamental features of the system.
Once the inherent and fundamental difficulties of the pigeonhole system are recognized, the evils resulting therefrom can be materially reduced. In the first place, one can redefine crimes so as to eliminate arbitrary and unmeaning lines drawn in the infancy of the law. Centuries ago, when the crime of theft was evolving, since land could not be carried off, larceny was confined to the taking of personal property of value. As a result no one could be convicted at common law of the larceny of growing crops or fruit, picked from another’s orchard or gold nuggets picked from another’s mining claim, and such still remains the law in those states where change has not been wrought by statute. Since the early lawyers made the loose generalization that animals were property of value only if they were fit for food or domestic work, the crime of larceny did not include the theft of dogs or cats. An American case accordingly held that the defendant could not be convicted of larceny for having stolen a valuable dog unless the dog was wearing a collar. Thefts of electricity have given the courts considerable trouble. In truth, the common-law pattern of larceny is so out of date that in most jurisdictions it has had to be redrawn. The limits of other common-law crimes are similarly too cramped and narrow for present-day needs. Partly because of changed economic and social conditions, partly because of new forms of wrongdoing evolved by the inventive genius of the twentieth century, the pattern of each separate crime must be given fresh consideration, so that by simpler and more generalized definitions the substantive law may be made more adequately to meet modern demands.
In the second place, certain analogous pigeonholes may advantageously be combined into single generalized crimes. Growing law always begins by a minute and particularized catalogue of forbidden and unrelated acts. Gradually related groups evolve into definite crimes. But the haphazard growth of the criminal law leaves much of the early tendency to particularize still apparent; it is only when law reaches a mellow maturity that large generalizations come. For example, since larceny was the crime of taking property out of the possession of another without the other’s consent, it was held not to cover the case of the agent or factor who stole the goods which his principal had entrusted to his keeping; neither would it embrace the obtaining of another’s goods through consent gained by misrepresentation and fraud. To cover the gaps thus left by the law of larceny, the separate crimes of embezzlement and obtaining property by false pretenses grew up. Many indicted for larceny escaped conviction by proving that they had committed embezzlement instead, and vice versa. Justice was thwarted, and courts and prosecuting attorneys placed under a serious and unnecessary burden. All three crimes are essentially of the same character and should be generalized so as to form a single pigeonhole. Many states have already effected this generalization; but others still retain the three separate crimes.
In the third place, and most important of all, many of the underlying doctrines and principles of criminal law need further study and development. For instance, with the growth of large corporations as the chief actors in the business world, it is of great importance that they, like the individuals who carried on the business before them, be subject to the restraint of criminal law; vet the doctrine of corporate criminal liability has markedly failed to keep pace with this growth, and its limits to-day remain in the greatest uncertainty. The doctrine of criminal liability for the acts of an agent similarly needs development and precise formulation. Industrial conflicts have pushed the doctrine of criminal conspiracy into one of major importance; yet there is wide disagreement as to exactly what constitutes a conspiracy or what are its limits. Married women still escape criminal punishment in many places through the presumption that they act under the coercion of their husbands. One of the elementary requirements for criminal liability is a criminal intent or mens rea; yet courts are still groping to find exactly what constitutes this requisite intent. Courts are waiting for legal scholars to prune away such features of the old as are outworn, to rear on foundations which experience has shown to be solid such modern forms as are needed, to work over and develop and, at certain points, reformulate the existing vast body of legal principle and doctrine.
II
No one must suppose that the mere perfecting of the substantive law will very materially reduce crime. At best it is only a beginning. Of considerably greater importance at the present time is the reform of criminal procedure.
The essence of effective criminal justice is to make conviction following the crime swift and certain. In America to-day it is neither.
The usual procedure for the trial of felonies involves three distinct steps: first, a preliminary examination by a magistrate; second, an entirely new examination by the grand jury; and, third, a trial of guilt before a petit jury. Each one of these quite separate stages necessitates delay; and a clever defense attorney can protract such delays to interminable lengths. Delay means loss of public interest, the fading away of the state’s evidence, opportunity for fresh crime. Furthermore, each stage affords to the professional criminal increased opportunities to escape punishment through legal technicalities, through the indifference of public officials, through political or other outside influences.
The startling fact is that inherently these three separate steps are not necessary, but are largely reduplication and waste effort. The grand jury is a historical survival coming down from the Assize of Clarendon of 1166. Although under very different social conditions it formerly proved of inestimable value, in modern times it has degenerated into something very like a rubber stamp to validate the opinions of the prosecuting attorney. Its onetime function of preparing the accusation to be tried by the petit jury can far more efficiently be performed by the prosecuting attorney, who does the actual drawing up of the bill of indictment even under the grand-jury system; its function of determining whether probable cause exists for holding the defendant, for trial can far better be performed by a trained judge or by the prosecuting officer himself. Although it may usefully be retained for investigating widespread criminal conditions or corruption, — the ‘presentment’ of the common law, — the grand jury, as a necessary step in felony procedure, has been abolished in eighteen states, and only good results have followed.
The preliminary examination by the magistrate was unknown to the early common law. It was a step introduced at later times to avoid the hardship of holding one accused of felony until a grand jury was in session or could hear the evidence. Under rural conditions, when the grand jury sat only at stated periods, it relieved the defendant of considerable hardship. But the unfortunate result of its past development is that it remains to-day completely divorced from the later trial proceedings. It is ordinarily conducted by entirely different judges, by different prosecuting officials, generally with a totally different objective. In many places the oral testimony taken at the preliminary examination is not even preserved for the trial, which may occur months later. When the time for trial is finally reached evidence which might have been easily secured when the case was fresh has been allowed to leak away. A new prosecuting attorney, a stranger to all the initial proceedings, steps in to gather again the various state’s witnesses for the trial.
The ineffectiveness of such procedure to gain either speed or certainty of result must be apparent on its face.
When it is remembered that in cases passing through these three separate steps the state’s witnesses are made to appear and personally give their evidence on three separate occasions, that the serious difficulties of securing intelligent jurors are doubled by requiring examination of each felony by both a grand and a petit jury, that weeks and often months are allowed to elapse between the preliminary hearing and the first trial of guilt, that the costs and the growing evils attendant upon the bail system increase with every delay, when the slow-moving, cumbrous machinery, designed for an earlier age, is watched in actual operation, creaking and groaning and on countless occasions missing fire, one begins to wonder how the results can be as good as they are. An actual count of some 4000 felony cases in Cleveland in 1919 showed that out of every 100 felony cases beginning in the Municipal Court 26 were nol-prossed, discharged, or for some reason failed to survive the preliminary examination; that out of the remaining 74 cases 16 never got beyond the grand-jury room; that out of the remaining 58 cases put on trial 21 defendants secured a nol. pros, from the new prosecuting attorney, were acquitted, or in some other way escaped sentence; that out of the remaining 37 found guilty and sentenced eight managed to secure a suspended sentence. Out of the original 100 cases, therefore, only 29 defendants actually were made to serve a sentence; and, of these, seven got off with a fine, seven with short-term imprisonment in the workhouse, and only 15 were sent to the state penitentiary or reformatory. In other words, a professional criminal in Cleveland might know that, even if he bungled so as to be caught and forced into court, in only 15 per cent of the felony cases would the defendant have to go to state prison. Who would not take the chance?
The Cleveland statistics do not stand alone. The Minnesota Crime Survey reported that for every hundred automobiles stolen in the city of St. Paul only five convictions were obtained (although, it is only fair to say, a high percentage of automobiles were recovered). The statistics collected by the New York Crime Commission showed that ‘of all felony cases originating in arrests in New York City, about 2 per cent are eliminated by the police, 57 per cent in the preliminary hearing, 12 per cent in the grand jury, 8 per cent in the trial court, and 5 per cent after guilt is established. Putting it another way, if we start with 100 per cent of arrests . . . 15.42 per cent are actually imprisoned or fined. . . . While it is not wise to use these percentages as measures of “efficiency,” it is nevertheless true that either we are arresting many innocent people, perhaps altogether too many, or we are permitting altogether too many guilty people to escape through the meshes of our criminal procedure.’
A professional criminal might also know that the more serious the crime, the smaller the proportion apparently of those actually punished. In the words of the recent report of a New York State Joint Legislative Committee, ‘for every ten murders committed in London, 160 are committed in New York City; and seven out of London’s ten are hanged while only one out of New York’s 160 is executed.’ In the face of actual facts can anyone claim that criminal justice in America is either sure or swift ?
Fruitful results probably depend as much upon corrective changes in the details of criminal administration as upon changes in the large. Space forbids discussion of such details, for these differ in every state. There are still jurisdictions where justice can be thwarted by simon-pure technicalities. There was a time when a California court set aside a conviction because in the indictment the letter ‘n’ was accidentally omitted from the word ‘larceny’; a Texas court held fatal the omission of the word ‘to’ in the expression ‘intent to kill and murder.’ Such miscarriages of justice still occasionally occur. In most states the defendant has the right to delay the trial and increase greatly the difficulty of securing competent jurors by an excessive number of peremptory challenges. The not infrequent practice of requiring a new bail bond at every new stage of the case exaggerates the evil of the professional bondsman who preys upon the innocent but stands ready as part of the ‘system’ to lend every assistance to the professional criminal. The surprising laxity in the enforcement of forfeited bail bonds bears evidence of the inefficiency with which we operate our criminal machinery. A careful examination revealed that in Cleveland only 1½ per cent of the forfeited bail bonds were actually collected.
The privilege of a criminal defendant to refuse to give testimony survives from the days when in civil as well as in criminal actions a party was incompetent as a witness and when in felony trials the defendant was not allowed the benefit of counsel. Whatever may have been its merits at a time when torture was still in use in Scotland and on the Continent as a means for gaining self-incriminatory evidence, it is a privilege which under modern conditions cannot profit the innocent, but may prove very effective in preventing the conviction of the guilty. It is probably an important factor in encouraging the use of ’thirddegree’ methods by the police. Yet in many states the constitutions preserve with religious veneration the privilege against self-incrimination, and its abolition can be obtained only by constitutional amendment.
Constitutional provisions in most states similarly require the jury form of trial and prevent our experimenting with other possibly more efficient forms, such as tribunals composed of law experts and laymen, sitting and voting together, as adopted in certain sections of Europe. Indeed, so deeply rooted in our ideas of justice is the jury form of trial that in many states, even upon the express request of the defendant, the jury may not be waived. In states where this is permitted, however, the results have apparently more than justified the practice. In Maryland actual experience has shown that the trial without a jury is so much speedier, cheaper, and altogether more satisfactory, that in the year 1924 over 90 per cent of all the cases in the criminal court of Baltimore City were tried in this way; and in the Hartford court in Connecticut, where the same practice now prevails, the defendants choose to be tried without a jury in some 70 per cent of cases.
’Trial by jury,’ says Dicey in his Law of the Constitution, ‘is open to much criticism; a distinguished French thinker may be right in holding that the habit of submitting difficult problems of fact to the decision of twelve men of not more than average education and intelligence will in the near future be considered an absurdity as patent as ordeal by battle. Its success in England is wholly due to, and is the most extraordinary sign of, popular confidence in the judicial bench. A judge is the colleague and the readily accepted guide of the jurors.’ The glory of the English jury system rests largely upon the power invested in the judge, who, with the right to interpret facts and to give large guidance to the jury, is always an impartial and powerful force for justice. Yet in many of our American states to-day the judge has for various reasons degenerated into a mere mouthpiece of judicial learning; he is commonly robbed of all power to comment, on the facts. Even in his vital function of instructing the jury, instead of framing his instructions in language of his own, free from all partiality or bias, it has become a common practice for him merely to read selections from ready-made instructions, requested by one side or the other, framed in a partisan way by astute counsel governed only by the desire to win.
The machine of American criminal justice badly needs repair; it is antiquated, ill-suited to the demands of modern conditions, and very inefficiently operated. For the outcome we have only ourselves to blame. The most fundamental requisites of any system of criminal justice — speed and certainty — are conspicuously absent.
III
The work of detecting and apprehending criminals has been comparatively little emphasized in America. Our minds arc so engrossed in the defects of the law that we are inclined to forget that we must catch a criminal before we can try him. An absolute perfection of law and procedure can yield no results in the case of an unarrested criminal. The Baltimore Crime Commission reported that, for the 2825 serious crimes committed in the city during six months in 1923, only 734 arrests were made and only 440 persons indicted — less than one in six. The deterrence of penal treatment can have little effect if a prospective criminal believes that, even if his crime is discovered, there is less than one chance in six of his being brought to trial. It will not do to attribute such conditions to the corruption of the police, for the facts do not bear out any such sweeping indictment. The result must be sought rather in the crying inefficiency of American police methods.
Unlike Europe, we have not yet learned in this country, with one or two notable exceptions, to utilize the resources of science for police detection work. Under European methods the police are trained to examine with a high degree of skill every detail connected with the crime and to rely upon scientific experts at every turn. Nothing is too minute for examination and study. The investigating officer therefore spares no pains to seek for the slightest clue — even a single hair caught on the hands of victims, lodged upon some piece of clothing, or fallen on the ground near by. Any such discoveries he promptly turns over to an expert microscopist. Thus, in a recorded case in Austria, a man was gravely wounded by an unknown person on a very dark night. The criminal dropped his cap in his flight, and inside the cap two hairs were found. After a careful examination the expert microscopist was able to describe the wearer as ‘a man of middle age, of robust constitution, inclined to obesity; black hair intermingled with gray, recently cut; commencing to grow bald.’ In comparison with such European methods one is reminded of the cap which figured in the SaccoVanzetti trial— found at the scene of the Braintree murder and alleged to belong to Sacco. Upon the identification of its wearer hung an issue of nation-wide concern. Yet, according to the testimony of Chief Gallivan of Braintree, he carried the cap around for ten days to two weeks under the seat of his automobile, and then himself ripped the lining to find identification marks before he ultimately gave it to Captain Scott. Under European police methods even particles of dust have proved of large importance in identifying unknown criminals. As Gross says: —
The coat of a locksmith contains a different kind of dust from that of a miller; that accumulated in the pocket of a schoolboy is essentially different from that in the pocket of a chemist; while in the groove of the poeketknife of a dandy a different kind of dust will be found from that in the poeketknife of a tramp. . . .
One day, for instance, there was found upon the scene of a crime a garment from which no information could be obtained as to its owner. The coat was placed in a strong and well-gummed paper bag which was beaten with sticks as vigorously and for as long a time as could be done without the paper tearing; the packet was left alone for a short time and then opened, the dust being carefully collected and submitted to a Chemical Examiner. Examination proved that the dust was entirely composed of woody fibrous matter finely pulverized; the deduction drawn was that the coat belonged to a carpenter, joiner, or sawyer, etc. But among the dust much gelatine and powdered glue was found; this not being used by carpenters or sawyers, the further deduction was drawn that the garment belonged to a joiner — which turned out to be in fact the case.
These random illustrations suffice to show the contrast between the expert and scientific methods in use in Europe and our haphazard amateur ways in America. When one also remembers that on the Continent the police keep careful registration cards for every person, that change of name is illegal and impracticable, that the police keep constantly adding fresh information on the individual registration cards, and that therefore at any moment the police have available a more or less complete history of each individual, one begins to comprehend why the chances of identifying and arresting those guilty of crime in Europe are in favor of the police, in America greatly in favor of the criminal.
In America we have as yet neither the training schools nor the police personnel to make possible such results as are achieved in Europe. The average training for police work in European cities involves a course of intensive study of from six months to a year; in Vienna a three-year course is given. Until we build up in America effective police-training schools it is grotesque to expect startling results in the detection or reduction of crime.
Furthermore, until we raise the police above the level of politics to the dignity of a highly trained profession, we cannot expect first-rate men to enter police work. In Austria, not long ago, the nation’s Prime Minister, after surrendering his portfolio, returned to his work as Chief of Police of Vienna. Such things cannot come in America until we can assure those entering the profession of a continuous career safe from the vicissitudes of politics and free from all political interference. It is much the same lesson which we have had to learn with respect to our national diplomatic service — that career men are necessary for expert work, and that expert work is a prerequisite for efficiency.
Police work of a really efficient character must include crime prevention as well as crime detection. Under conventional methods efficient patrol work may prevent holdups and assaults on patrolled streets, and good detective work may have a strong deterrent effect upon burglaries and ‘inside jobs’; but at best these conventional methods are almost a negligible factor in reducing the volume of crime. Here again creative work is sorely needed. It should be the business of an efficient police force to gain a wide knowledge of individual lawbreakers and their companions, of suspects and ‘ bad risks’; and this intimate knowledge should be utilized as the basis for preventive work by bringing about contacts between individuals hovering near the danger line and the various social agencies or organizations best fitted to cope with the given situation. The underlying principles of probation work need not necessarily be confined to formal assignments covering only those who have already overstepped the line and run afoul of the courts. If the danger is due to defective physical or mental characteristics, steps should be directed toward the necessary treatment; if due to environment and social conditions it may prove possible to change the environment or even to remedy the conditions. Again, in the case of convicts discharged from prison, the police have it peculiarly within their power either to hound or genuinely to help them. The preventive work of the police at such a time can be a very material factor in the reduction of recidivism and the prevention of the convict’s return to jail. As Colonel Arthur Woods, the former Police Commissioner of New York City, puts it: ‘The preventive policeman is the policeman of the future. However faithfully he does it, he can no longer fully justify himself by simply “pounding the beat.” '
IV
The reform of the substantive criminal law, the reform of procedural machinery, the development of more scientific methods of crime detection and crime prevention, are in reality little more than playing around the edges of the real problem. What are we going to do with the human beings whom we have arrested, tried, and convicted? There we come to the heart of the problem of criminal justice.
For centuries we have assumed that crime is the voluntary choice of a free agent and that it will somehow benefit society to punish the criminal; and upon these two assumptions we have based our whole penal system. Modern scientific investigation has shaken to its foundations each of these assumptions. We have discovered that a large part of crime is inevitable, — the result partly of inherent physiological abnormalities and mental defects, and partly of social environment and economic conditions, — and that therefore any theory which bases punishment upon the moral blameworthiness of the wrongdoer must be open to very serious question. Hard experience has shown us also that punishment as an end and aim in itself yields surprisingly little in the way of social gain, and generally hardens the victim beyond all hope of redemption. In actual operation our punitive or retributive theory is not preventing crime or saving those convicted from criminal careers. Modern criminologists are finding that over half of our prison populations are recidivists, men who have been convicted before. Glueck’s study of 608 consecutive admissions to Sing Sing Prison in New York showed that 66.8 per cent were recidivists. An authoritative recent study reveals a similar percentage in New York county jails and penitentiaries. Investigations in other states have shown similar results. The venerable retributive theory, blue-blooded, sanctified by the ages, has gone down under the fire of modern criticism and scientific investigation. Yet upon this retributive theory is based the penal code of nearly every American state.
In place of the barren aim of punishment or expiation, modern scientific thought has sought more practical ways of conserving the social welfare and, as the bed-rock objectives of criminal justice, has concentrated upon the reformation wherever possible of the individual offender, the prevention of further crime on his part, and the deterrence of others from imitating the offense. This means the intensely practical problem of securing results in human conduct, a problem which the mere abstractions of penal codes will not solve. The task is not to fit the penal treatment to an abstract crime, but to a concrete criminal — to discover some method of social treatment which will register results in the consciousness of the offender himself. The objective changes from punishment as such to social reinstatement of the criminal. Prevention and deterrence are to be gained wherever possible as by-products of social reinstatement. To attain such an objective, mass treatment is evidently futile. What proves immensely effective with one will be utterly unavailing with another. Individualization of treatment is the only way. From this there can be no escape. Emphasis must shift from the crime to the criminal.
The task, then, becomes a twofold one: first, that of guilt-finding, the sorting out of those individuals who need social rehabilitation; and, second, the finding of some practical means for effecting such rehabilitation. The real touchstone of success in criminal administration lies in the second part of the task; if this fails, the mere sorting-out process must be to a certain extent waste effort.
Trained experts are needed for each part of this twofold work. The sorting-out process — guilt-finding — is the work primarily of the lawyer and the judge.
Once guilt has been determined, however, the most delicate and critical part of the task of criminal administration begins. What will be the best form of curative social treatment to yield concrete results? The answer must evidently vary for each offender; for if vital results arc to be had it must depend, not on the nature of the isolated act which constitutes the crime, but on the character of the criminal himself, as evidenced by his whole past history, his physiological and mental condition, his behavior reactions, his habits, his beliefs, his general outlook on life. Three individuals are separately convicted, each for the theft of the same amount of money. Under the old theories, criminal justice would require that precisely the same term of imprisonment should be imposed upon each. The first offender may be a hardened professional who has been living a life of crime for twenty-five years and has served two or more prison terms already; the second offender may be a boy of fifteen in his formative years; the third a man of forty, industrious, but unable to get employment because of an oversupply of the labor market, with a clean, good record to his credit. Should all necessarily have the same treatment because all committed the same crime? Does not reason demand that after conviction prisoners be individually studied, sorted into social groupings, and treated according to the needs of each group and, so far as practicable, of each individual criminal?
Already we have made a beginning. In most states to-day juvenile offenders are no longer treated in the mass with other criminals, but are singled out for such individual social treatment as seems best calculated to save the particular child from the pathway of crime. Similarly, criminals found to be irresponsible by reason of insanity are ordinarily separated into another group, and committed to special institutions for the insane. So, a movement is afoot in many states to differentiate the group of hardened professionals, who, it is generally felt, should receive a different kind of sentence from that of first offenders. Thus the classical theory of imposing exactly the same punishment upon all guilty of the same offense is breaking down in practice, and we are beginning in a limited way to determine penal treatment according to social groupings and classifications quite irrespective of the nature of the offense committed.
Along this pathway lies the great need for future work and research. May it not be possible to define and set apart other social groups needing separate study and particularized treatment, as well as juveniles and insane criminals? For instance, the group of alcoholics and drug addicts, who form a substantial part of every criminal population, present a problem of social reconstruction of surpassing difficulty, yet of the very greatest importance. Again, morons, mental defectives, the feeble-minded, constitute another substantial group, also requiring intensive study and treatment differentiated according to their special needs. For many of this group, training in a skilled or semiskilled trade and careful parole work are all that is necessary. Others, like certain types of the insane, need permanent care. Professional and hardened criminals form still another group who do not react normally to ordinary stimuli. To expect them to respond to stereotyped methods of treatment, or to keep them mingled indiscriminately in prison populations, is disastrous from every point of view. Through the failure to give them separate treatment many a prison has been turned into a factory of crime. Still other problems arise in connection with the psychoneurotic group, the physically diseased group, the old-age group. Improved forms of treatment wait upon improved scientific methods; and these in turn depend upon increased study and research with further individualization of treatment within each group.
The problem of social treatment is so complex, so beset with difficulties at every turn, that no one who has given it serious study will attempt to lay down the precise form which an improved machinery should take. There are, nevertheless, certain fundamental principles which would seem to indicate the general direction in which we must look if results are to be attained. If treatment is to be individualized, once the legal experts have determined guilt, the problem of separating those convicted into the proper social groups and determining upon the most effective form of treatment in each case is one which legal learning will not solve. The lawyer must step aside in favor of the doctor, the psychologist, the psychiatrist, the sociologist. The simplest process for achieving such a result would seem to be that the court should turn over those found guilty to a specially appointed and carefully chosen group or board for determining, upon the advice of expert, assistants and upon the basis of searching physiological and psychiatric examinations, in which social grouping each convicted offender is to be placed and to what kind of treatment each is to be subjected. The concentration of power and responsibility in such a board will bring about the coördination and regularization of the present rather haphazard efforts in the direction of social treatment; and by keeping in intimate contact with various social agencies throughout the state it could achieve a really effective piece of work. Needless to say, if it is to be made a responsible body, it must have the additional power to see that its orders are properly carried out, and subsequently to transfer offenders from group to group, to modify treatment in the light of concrete results, and to discharge finally or on probation those who no longer need institutional or social care.
After the setting aside of the more or less well-defined classes, as suggested above, there would remain a large number whose abnormalities would not be so pronounced or distinct as to demand group treatment of a differentiated or highly specialized nature. To devise for this large group forms of treatment redemptive rather than punitive is the final crucial problem of criminal administration. Here imperatively we need creative thought opening up new avenues of experimentation.
Whatever the system of treatment, whether in large central institutions or in detached units or not within institution walls at all, certain underlying fundamentals seem clear. If social rehabilitation is the objective sought it, can never be finally attained by force and compulsion, for it is essentially a thing of the spirit. Discipline and enforced obedience in the earlier stages of treatment for the majority must be strict; but there is a difference between the discipline which subdues and makes sodden, and the discipline which enforces order so that other constructive forces can operate. The pathway toward social rehabilitation must evidently be a progressive one, the offender passing from stage to stage by dint of his own exertions. Voluntary effort must win its way over compulsion, and the will of the offender himself must be enlisted in a coöperative effort to achieve his freedom through making himself fit for his responsibilities as a member of society. Always the treatment must be individualized so as to evoke individual responsive effort. The final return to society must be through a gradual relaxation of restrictions and an extended period of parole. To imprison a social defective for years in a place where everything seems calculated to make him peculiarly unfit for freedom and then suddenly to disgorge him into blinding freedom, penniless and friendless, and expect him to go and sin no more, is almost grotesque.
In emphasizing the objective of social rehabilitation the preventive and deterrent elements of criminal justice are not to be forgotten. But the social rehabilitation of the felon, if successful, is almost sure to carry in its train prevention and deterrence. Those who would emphasize deterrence above all else must not forget that our present system is conspicuously failing to deter. Mere savagery of punishment does not deter. The history of criminal law in England shows that during the eighteenth century, when one hundred and sixty different offenses were punishable with death, crime flourished. Even when pocketpicking was punishable by death, a public hanging, when everybody was looking upward, was a favorite place for pickpockets to ply their trade. Deterrence comes not through severity of punishment, but through certainty and celerity of conviction. The more severe the punishment, the fewer guilty persons will be convicted, as everyone who has worked with juries must know. The element of deterrence under the present system must be small when the prospective criminal may know that there is considerably less than one chance in ten of his being caught and forced to serve a sentence, and that, even if convicted, the mere lapse of a fixed number of years, irrespective of his own effort or character, will see him free once more. If he knew that there was at least an equal chance of being caught and convicted, if he knew that after conviction his right to freedom would be dependent upon his own conduct, and that after his discharge he would remain under partial surveillance for an extended time, there would be less crime.
Such are the signposts toward the way of reform of criminal administration. At every turn, creative thought and careful, patient experimentation are necessary. The solution can come only slowly, very gradually, as legal scholars, psychiatrists, sociologists, and other special workers make their peculiar contributions, each in his own field. In the end American civilization will prove equal to the task; but the battle must be fought on many fronts.