THE FEMALE CRIMINAL
Women furnish only one-fifth to one-tenth of the population of penal institutions. Probably the percentage would be still lower if among these were not a number of rather common convictions for acts which are peculiar to women, like abortion, infanticide, child abandonment and the like. As to the other crimes, few women are burglars or robbers, or guilty of other crimes of violence, except murder. Women steal and poison and blackmail and extort money and lie and slander and gossip, and probably cause as much unhappiness as men; but their crimes, like their lives, are not on so large or adventurous a scale. They do not so readily take a chance; they lack the imagination that makes big criminals or lays broad schemes. In many of their crimes they are often the accomplices of men and take rather a minor part, although sometimes a quite important one. For this reason they are often not detected and frequently not prosecuted, a fact which leaves the percentage smaller than it otherwise would be. Then too, juries are apt to acquit women of crime even when they are indicted and tried. It must be a positive case and one which calls for no possible feeling of sympathy or where there is no personal appeal that will work the conviction of a woman. Men have so long adopted an attitude of chivalry toward women that very few juries will convict them. This too has much to do with the small number of female convicts.
Some writers claim that the small number of women in penal institutions shows that women are better than men; but this is a hasty conclusion arrived at from insufficient facts. There are fewer female prisoners because women have lived a more protected life; they have not been engaged so generally in business; they have not been so constantly obliged to fight their way in the world; their lives have been more quiet and smooth; they have been surrounded by strong conventions and closely watched. Especially is this true with regard to the girl as compared with the boy. Such protection naturally keeps them from the commission of crime. The great consideration shown to them by prosecuting witnesses, prosecuting officers, judges and juries, supplements the protected life and is an added reason for the showing made by statistics. It is notorious that a woman is seldom convicted of murder. This has been the subject of much complaint on the part of the public; still a man may condemn such acquittals and when placed on a jury will himself vote for acquittal.
After all, the juries are right. Most of the cases of murder against women involve sex relations. Nature has made the bearing and rearing of children first of all the woman's part, and this fact so dominates her life that nothing else seems important to her in comparison. She is not able to judge in a broad and scientific way matters so clearly affecting life. It may even be possible that in the evolution and preservation of life, her judgments are right. At least they are the natural judgments for a large number of women, or these tragedies would not occur. No doubt as woman enters the field of industry formerly monopolized by man, and as she takes her part in politics and sits on juries, the percentage of female criminals will rapidly increase. In fact, the percentage of women prisoners has been climbing for many years. As she takes her place with men she will be more and more judged as men are judged, and will commit the crimes that men commit, and perhaps furnish her fair quota to the penitentiaries and jails.
Whether this will be better or worse for the race is no part of the discussion, and can only be told by long experience. Women must accept the facts and make their choice of activities in view of these facts. Quite apart from any sentiment, I think that it is a mistake to believe that men and women should be judged alike. The structure and nervous system of women cause physical and mental disturbances which affect their judgment and life. If there were any justice in human judgment and civilization, then each human being would be judged according to his make-up, his tendencies, his inclinations and his capacities, and no two would be judged alike.
Any sudden change in the treatment of women in the courts will work a great injustice that will leave its effect on both women and men, and still more on the life of the race.
This subject would scarcely have been noted a few years ago. True, there was in the past a small mixture of children in the grist ground out in the criminal courts. Usually they received some leniency, and were viewed with more curiosity than alarm. The juvenile criminal was regarded as a prodigy with a capacity for crimes far beyond his years. Something of the attitude obtained in regard to him which attaches to the child chess player or the child mathematician. The child criminal is now common, and for the most part is a product of the city.
All crime is doubtless much more common in the city than the country, and the young criminal especially is a product of the crowded community. To those who look for natural causes for all phenomena the reason is not far to seek. The city itself is an abnormal thing. Primitive man and his ancestors were never huddled together in great multitudes, as are the dwellers in cities today. To a degree almost all animals are gregarious, but the units of organization are much smaller with them than with man, excepting possibly in the case of the ant and the bee, insects which seem specially adapted to live a highly automatic and cooperative life, such as human beings cannot possibly reach. But primitive men and their direct ancestors lived in small groups. They could not have preserved their life in any other way. They lived by fishing and hunting and by gathering roots, berries and herbs. Later they tended their flocks and cultivated the fields in a simple way.
With the introduction of the modern machine, the factory system and the railroads, in the last century, our great modern cities were evolved. As they grew more complicated, new problems arose. The life of the crowded city is most difficult even for normal men and women. The adjustments are too numerous and too complex for an animal made with simple tastes and for a pastoral life. But, if it is hard for men, it is almost hopeless for children, especially the children of the poor who fill our prisons, asylums and almshouses.
Every child needs the open air and the open life of the country. He needs, first of all, exercise which should be in the form of outdoor play. No healthy boy wants to live indoors, even though his home may be a convenient city "flat." The woods, the fields, the streams, the lakes, the wide common with plenty of room, have always made their natural appeal to the young. And as sunlight kills most of the deadly germs, so outdoor life with exercise and play takes care of most of the unhealthy thoughts, habits and ideas of child-life. In the past, our schools both in the city and country have done little to help the young. For the most part healthy children have always looked on them more or less as prisons. Here they have been confined and kept from exercise and play, to study useless and unrelated facts and to commit to memory dry rules which are forgotten as soon as their minds are ready to retain anything worth while.
Schools should be made to fit the needs of children, and not children to fit schools. The school that does not provide work and play for the child which he is glad to do, has learned little of the psychology and needs of youth. Botany, Zooelogy, Geology and even Chemistry can be taught to children before they learn to read, and taught so that it will seem like play, and through this the pupil will acquire a natural taste for books. It is only within the last few years that the modern school has really begun to educate the child. It has been a hard fight that scientific teachers have waged with conventional education for the right of the child. What has been done is too recent and scattering to show material results.
Nothing is so important to the child as education. The early life is the time that character is formed, habits are made, rules of conduct taught, and it is almost impossible to up-root old habits and inhibitions and implant new ones in later years.
It is true that "the child is father to the man," and he is the father of the criminal as well as the useful citizen. Outside of the hopelessly defective, or those who have very imperfect nervous or physical systems, there is no reason why a child who has had proper mental and physical training and any fair opportunity in life should ever be a criminal. Even most of the mentally defective and those suffering from imperfect nervous systems could be useful to society in a sheltered environment. Poor as the country schools have always been, the outdoor life of the country child is still so great an influence that he generally escapes disaster. He is not sent to a factory, but lives in a small community where he has fresh air and exercise.
Of course here as everywhere we must allow for the defective, the imperfect, the subnormals and the children of the very poor. These unfortunates furnish a large percentage of the inmates of prison, and most of the victims for the scaffold which civilization so fondly preserves.
The growth of the big cities has produced the child criminal. He is clearly marked and well defined. He is often subnormal even down to idiocy. In most cases he is the result of heredity. Many times he may have fair intelligence, but this is usually attached to an unstable, defective nervous system that cannot do its proper work, and he has had no expert treatment and attention. He is always poor. Generally he has lost one or both parents in youth and has lived in the crowded districts where the home was congested. He has no adequate playground and he runs the streets or vacant, waste places. He associates and combines with others of his kind. He cannot or does not go to school. If he goes to school, he dreads to go and cannot learn the lessons in the books. He likes to loaf, just as all children like to play. He is often set to work. He has no trade and little capacity for skilled work that brings good wages and steady employment. He works no more than he needs to work. Every night and all the days that he can get are spent in idleness on the street with his "gang." He seldom reads books. He lacks the taste for books, and such teachers as he knew had not the wit to cultivate a taste for good reading. Such books as he gets only add to his unhealthy thoughts.
Many writers have classified the crimes that the boy commits. It is scarcely worth the while. He learns to steal or becomes a burglar largely for the love of adventure; he robs because it is exciting and may bring large returns. In his excursions to pilfer property he may kill, and then for the first time the State discovers that there is such a boy and sets in action the machinery to take his life. The city quite probably has given him a casual notice by arresting him a number of times and sending him to a juvenile prison, but it has rarely extended a hand to help him. Any man or woman who has fairly normal faculties, and can reason from cause to effect, knows that the crimes of children are really the crimes of the State and society which by neglect and active participation have made him what he is. When it is remembered that the man is the child grown up, it is equally easy to understand the adult prisoner.
Crimes against persons are not always as easy to classify and understand as crimes against property. These acts are so numerous and come from so many different emotions and motives, that often the cause is obscure and the explanation not easy to find. Still here, as everywhere in Nature, nothing can happen without a cause, and even where limited knowledge does its best and cannot find causes, our recognition of the connection between cause and effect and the all-inclusiveness of law can leave no doubt that complete knowledge would bring complete understanding.
It is always to be borne in mind in considering this class of crimes that the motive power of life is not reason but instinct. If men lived by reason the race would not survive. The primal things that preserve the race, the hunger for food, drink, sex, are instinctive and not only are not awakened or satisfied by reason, but oftentimes in violation of it. Nature, first of all, sees to the preservation of the species, and acts in a broad way that life may not perish. Nature knows nothing about right and wrong in the sense in which man uses these words. All of our moral conceptions are purely of social origin and hence not instinctive in human life, and are forever giving way to the instincts on which Nature depends. The preservation of life has called for the emotions of hate, fear and love, among the other emotions that move men. The animal fears danger and runs away, and thus life is preserved. The weaker animal is almost entirely dependent for life upon his fear. He is sometimes afraid when there is no danger, but without fear he would be destroyed. Sometimes the animal hates and kills and thus preserves himself. The love of offspring is the cause of the care bestowed upon it which preserves its life. The herd instinct in animal species develops packs and clans and tribes and states. Man is the heir to all the past, and the instincts and emotions of the primitive animal are strong in his being. These may have been strengthened or diluted as the ages have come and gone, but the same instincts furnish the motive power for all his acts. Man fears and hates, and runs or kills and saves his life. He loves, and preserves his offspring.
Man sees an object. Instinctively he may fear it or he may hate it. He may run from it or destroy it. He gathers impressions through his senses. The nerves carry them to the brain. He comes to fear certain persons and things, to hate certain other persons or things, and to love still others. If the hatred is strong enough or the danger great enough or the desire sufficient, he may kill. Whether he plans the method or deliberates upon the act can make no difference. He is prompted by the instinct, and the reflection simply means the consideration of reasons for and against, or the reaching of inhibitions. If he acts, it is one of the primal emotions that causes the act. He is the "machine" through which certain emotions find their path and do their work. Infinite are the causes and circumstances that give rise to an emotion strong enough to take human life.
Killings which result from a sudden passion are easily understood. Everyone has been overwhelmed by rage, where reason and judgment and all acquired restraints are entirely submerged. The primitive man with his primitive emotion reasserts himself. It is mainly accident or the lack of some particular circumstance that prevents a murder. Of course some people are overwhelmed more easily than others. Some natures are less stable, some nervous systems less perfect, and the built up barriers are weaker. The whole result of stimuli is determined by the strength of the feeling acting upon the machine. Such a person is not ordinarily dangerous to the community. The act itself would generally assure that it could never happen again. Some killings, however, are more deliberate. They are preceded by a settled hatred which preys upon the mind and fights against the preventive influences that training and habit have formed. Under a certain combination of circumstances these restrictions are swept aside and the emotions have their way.
There are, of course, certain broad classifications of homicides. A considerable number, perhaps more than any other, come through the commission of robbery, burglary and larceny. In the midst of the act the offender is caught, and kills in an effort to escape. These murders fall under the heading of property crimes; the cause is the same, and the rules governing them are the same. The second group, with respect to numbers, grows from the relations of men and women. Wives kill husbands and husbands kill wives; sweethearts kill each other. Jealousy and revenge are commonly mixed with sex life and sex association. Many socialists have argued that under an equal distribution of property, where women were freed from fear of want, these crimes would disappear. But this argument does not take human nature into account. Jealousy is inevitably associated with sex relations. The close contact of men and women over long periods of time inevitably causes friction and misunderstanding. These conditions often grow chronic, and in marriage are aggravated by the necessity of close association regardless of the real feelings that may exist. Certain claims are made by husbands and by wives, which are probably inherent in the relationship; sometimes they flow from habit and custom, but, from whatever cause, such claims are so exacting that either the husband or wife finds them hard to meet.
Because of the fact that the feelings of men and women for each other are deeper and more fundamental than those of any other relation, they are more subject to misfortune and tragedy. The hatreds born from the deepest affection are most beyond control. Then the desire of possession is overwhelming. It would be strange if more killings did not result from the relations of men and women than from any other cause. It is easy to understand why this is true. It is likewise easy to understand how laws, reason and judgment are powerless to prevent. Juries seem to understand this when women kill husbands and lovers, but a long-established code of chivalry and a cultivated attitude toward women, which is partly right and partly wrong, make it impossible to see that men are just as helpless under strong feelings as women. No doubt a public opinion that would favor divorces on a greater number of grounds and make them easily obtainable would prevent large numbers of such killings, but the cause can not be altogether removed.
The law has long singled out killing as the greatest crime, doubtless because man prizes life first of all. Of course every effort should be made to protect life. Still, in measuring the character of the offender, in determining his possibilities as a useful citizen, homicide is probably one of the lesser crimes. Many times it implies no moral turpitude, even with those who believe in moral turpitude. It may imply very little lack of physical stability. Homicide practically never becomes an occupation. Most killings are accidental in the sense that they are casual and dependent on circumstances, and there is as a rule much less danger of repetition than there is of the original commission of a homicide by one of a defective nervous system who has never before committed an unlawful act. A large number of men convicted of murder are used as "trusties" in our penal institutions, even when their imprisonment is for a long term, or for life. This shows from the experience of prison officials that this class of offenders is, as a rule, of a better fibre than almost any other class.
Doubtless no sort of treatment will ever entirely get rid of homicide. Brains and nervous systems are so made, that inhibitions are unable to protect in all cases. Nations and men readily engage in killing, either from sport or because of a real or fancied wrong. Mob psychology shows how whole communities are turned into ravenous beasts, hunting for their prey. The world war, and all wars, show cases of mob psychology that have led large masses of men to take an active part in killing. The pursuit of those charged with crime shows that all people like the chase when the emotions are thoroughly aroused. Under certain impulses, communities gloat over hangings and commend judges and juries because they have the courage to hang, when, in fact, they were too cowardly not to hang and when their reason did not approve the verdict and judgment. Men who do not kill often wish others might die and are pleased and happy when they do die. We approve of death when it is the right one who dies. Whether all persons are murderers or not may depend upon a definition of murder. But, beyond doubt, all persons are potential murderers, needing only time and circumstances, and a sufficiently overwhelming emotion that will triumph over the weak restraints that education and habit have built up, to control the powerful surging instincts and feelings that Nature has laid at the foundation of life.
Most of the inmates of prisons convicted of sex crimes are the poor and wretched and the plainly defective. Nature, in her determination to preserve the species, has planted sex hunger very deep in the constitution of man. The fact that it is necessary for the preservation of life, and that Nature is always eliminating those whose sex hunger is not strong enough to preserve the race, has overweighted man and perhaps all animal life with this hunger. At least it has endowed many men with instincts too powerful for the conventions and the laws that hedge him about.
Rape is almost always the crime of the poor, the hardworking, the uneducated and the abnormal. In the man of this type sex hunger is strong; he has little money, generally no family; he is poorly fed and clothed and possesses few if any attractions. He may be a sailor away from women and their society for months, or in some other remote occupation making his means of gratifying this hunger just as impossible. There is no opportunity for him except the one he adopts. It is a question of gratifying this deep and primal instinct as against the weakness of his mentality and the few barriers that a meagre education and picked-up habits can furnish; and when the instinct overbalances he is lost.
Incest, which is peculiarly the crime of the weak, the wretched and the poor, has a somewhat different origin. Westermarck in his "History of Human Marriage" shows that in the early tribe there was no inhibition against the marriage of blood relations; that the restriction then was against the members of the tribe that used one tent; these might or might not be blood relations. The traditions and folk-ways against the marriage of close relations grew from the familiarity that came from the living together of brother and sister, for instance, in one home. This feeling gradually worked itself into custom and habit and from that into folk-ways and laws. Sometimes we read accounts of the marriage of a man and woman who found, after years had gone by, that they were brother and sister who had been separated in infancy and grew up without knowledge of their relation to each other. Whether Nature forbids the marriage of relatives by preventing offspring or by producing imperfect offspring is a doubtful question. Certain communities in Europe have lived together so long that all are related and still they seem to thrive. Considering the general custom and feeling on the subject, however, the man and woman who know that they are closely related and who marry are different and weaker than the others; and this may show in their offspring. Although the subnormal may have no such feeling, they are judged by the traditions and customs of the normal and on that judgment are sent to prison.
Many sex crimes are charged to children in the adolescent age; children who have no knowledge of sex and its development and are helpless in the strength of their newly-discovered feelings. This class of offenders is almost always the inferior and the poor who are moved by strong instincts which they have not the natural feeling, the strength, the education, nor the desire to withstand.
While most crimes against persons are not directly due to economic causes, still the indirect effect of property is generally present in these crimes as well as others. The fact that the poor and defective are generally the subjects of prosecution and conviction in these offences shows how closely economic conditions are related to all crimes.
Other criminal statutes are of more modern date, and as a rule involve not much more than adultery, except in regard to the age of the girl offender, which is generally placed below eighteen. Still the sex age of neither boys nor girls can be fixed by a calendar. It depends really upon development, which is not the same with all people or in all environments. Many girls of sixteen are more mature and have more experience of life than others of twenty. Most laws provide that below sixteen one cannot give consent and that a sexual act is then rape. It is doubtful if there should be any intermediate age between sixteen and eighteen, where an act is not rape but still a minor offence.
ROBBERY AND BURGLARY
Robbery and burglary are generally counted as crimes of violence, but they should be properly classed under property crimes. Every motive that leads to getting property in illegal ways applies to these crimes. There is added to the regular causes of property crimes the element of danger and adventure which makes a strong appeal to boys and men. I am inclined to think that few mature men have committed one of these crimes, unless they began criminal careers as boys. Such crimes especially appeal to the activity and love of adventure which inhere in every boy. They are committed for the most part by youths who have had almost no chance to get the needed sport and physical experience incident to boyhood. The foot-ball, base-ball, polo or golf player very seldom becomes a robber or a burglar. Almost no rich man or rich man's son becomes a robber or a burglar. Those who fall under this lure are mainly the denizens of the streets, the railroad yards, the vacant lots, the casual workers who are stimulated by a variety of conditions to get property unlawfully. Added to this are almost invariably a defective heredity, vicious environment, little education, and a total want of direction in the building up of habits and inhibitions.
The robber or burglar who kills in the commission of crime is more dangerous and harder to cure than the one who kills from passion or malice. There is always the element of an occupation, for getting property, and generally a love of adventure that is difficult to overcome, except by a substantial change of social relations which makes acquiring property easier for the class from which all these criminals develop. The murder that comes from passion and feeling implies situations and circumstances that are rarely strong enough to overcome the restrictions against killing.
MAN AS A PREDATORY ANIMAL
Not less than eighty per cent of all crimes are property crimes, and it seems probable that, of the rest, most arise from the same motives. If we look at civilization as the result of that seesaw trend of the race from "Naturalism to Artificialism," we may get a flexible view of life that will be in accordance with the facts, and will help us to get rid of the arbitrary division of man's history into the three periods termed Savagery, Barbarism and Civilization. However desirable this division may be for historic purposes in general, it is only confusing in an effort to study the nature of man.
In the life and origin of the race, the fact is always evidenced that the Ego through its growth and persistence is always drawing to itself from the current of environment all things which it feels desirable to its life and growth. This must be a necessary condition of survival. In the long journey from amoeba to man, any circumstance causing a complete halt for even a brief period meant extinction, while even a persistent interference produced a weakened organism, if not an arrest of development.
This then is the origin of the "Master Instinct," hunger. When we consider the various emotions growing from the force of this vital urge, as developed by adaptation to an ever-changing environment, we are able to realize fully why it bulks so large in moulding and shaping the destiny of the race.
All psychologists are agreed in classing under the nutritive instinct such activities as acquisition, storing and hoarding. During a period variously estimated as a quarter of a million to two million years, man and his animal antecedents responded to the hunger instinct, in the manner and by the same methods as did the various jungle animals. He secured his prey by capture, or killed it wherever found, the one condition being his power to get and to hold. Later tribal organization arose, and food and shelter were held in common. But since the folk-ways commended raiding and looting between alien tribes, here was presented an alluring chance to secure both booty and glory to men trained in the "get and hold" process of acquiring. For thousands of years life itself depended upon this unerring exercise.
It was during the period outlined that man developed his big brain (cerebrum) involving the central nervous system. Furthermore, it was developed by, and trained to, these particular reactions. The far-reaching control of the mind must be remembered, as upon this through his racial heritage must be based his conflicting impulses. These must be reckoned with in our conclusions with regard to present-day behavior, economic or otherwise.
During the last thirty years, psychological laboratories, aided by physiology, through oft-repeated experiments conducted with newly-invented weighing and measuring instruments of marvelous accuracy, have put us in possession of an array of facts unknown to students of earlier periods, who sought the "why and the how" of man's erratic actions as a social animal. It is constantly being demonstrated that under given conditions, moved by appropriate stimuli, the human animal inevitably and surely reacts the same as does inorganic matter. If we understand "intelligence" to be the "capacity to respond to new conditions," we can measurably see and at least partly understand the constant inter-play of heredity and environment. Between these there is no antagonism. The sum of life experiences consists solely in the adjustments required to enable the sentient organism—man or beast—to live.
How readily a "throw-back" to earlier and cruder life may be brought about under favorable conditions, is shown by the methods and virulence of combat during the vicious massacre in the war just ended. Can the conclusion be evaded that individually and collectively we constantly teeter on the brink of a precipice? If we fall it spells crime or misfortune, or both.
Wherever civilization exists on the private property basis as its main bulwark, we find crime as an inseparable result. Man, by virtue of his organic nature, is a predatory animal. This does not mean that he is a vicious animal. It simply means that man, in common with the eagle and the wolf, acts in accordance with the all-impelling urge and fundamental instincts of his organic structure. In any conflict between newer and nobler sentiments and the emotions which function through the primeval instincts, he is shackled to the bed-rock master instincts in such manner that they usually win. This is conclusively shown by the history of the race.
If this is true, we should expect to find the master hunger specially active through the many chances presented for exploitation after the fall of feudalism—beginning, let us assume, with the invention of power machinery—the "Age of Steam". It is apparent that from that time to our own day, man's acquisitive tendency has so expanded, that if we were capable of an unbiased opinion it might be said to be a form of megalomania gripping the entire white race, where highly-developed commerce and industry are found in their most vigorous forms.
If our theory is correct, we should expect to find the most energetic and enterprising nations showing a greater ratio of property crimes than the invalid and feeble nations. This would more certainly be true where political constitutions by letter and spirit encourage and promote individual development, mental and industrial. When this condition exists with abundant natural resources, such as often may be found in what we term a new country, it furnishes the chance for the most vigorous functioning of whatsoever may be the dominant qualities inherent in the tendencies and aspirations of a people. The United States of America, among the nations, meets these conditions, and we find here the highest ratio of property crimes per capita. This holds as to all such crimes, both minor and major, which are far in excess of those of any other nation, as shown by statistics.
It seems clear that this explanation shows the main reason for the seemingly abnormal number of property crimes in the United States.
Man's infinitely long past developed the hunger instinct, which made him take directly and simply where he could and as he could. This is always urging him to supply his wants in the simplest way, regardless of the later restrictions that modern civilization has placed around the getting of property. With the weaker intellectually and physically, these instincts are all-controlling. The superficial and absurd theories that his excesses are due to the lack of the certainty of punishment take no account of the life experience, and the inherent structure of man.
Especially in our large cities with their great opportunities for the creation and accumulation of wealth, the "lust of power" is shown by the nerve-racking efforts to obtain wealth by the most reckless methods. The emotion drives us to spend extravagantly and conspicuously, that we may inspire the envy of our neighbors by our money and power.
This is an old emotion securing a new outlet, and tenfold magnified in force, through modern conditions in commercial and industrial life. Is it not plain that in America it has assumed the form of an obsession, biting us high and low, until we reek of it? It is likewise clear that it is a menace to any abiding peace and welfare; that it is still growing and leaving a bitter harvest of neurasthenics in its wake.
The criminologist must face the fact that, in spite of contrary pretenses by most of our social doctors, we are still in our work-a-day life guided almost exclusively by the mores—the folk-ways of old—founded on expediency as revealed by experiences, and acquired by the only known process, that of trial and error. If this be true, it clearly follows that in order to conserve any vestige of a civilization, we must realize the fact that property crimes are the normal results of the complex activities making up the treadmill called civilization. We must likewise realize that to modify these crimes we must modify the trend of the race.
When the seamy side of man's behavior is scrutinized by science, it cannot be other than grim and distressing to the reader. It is this to the writer. But all the really significant facts of life are grim and often repulsive in the material presented. To the "irony of facts" must be ascribed the shadows as well as the high lights. No distortions or speculations can influence the findings of science. They are accessible and can be checked up by any one sufficiently interested. The student knows that man is what he is, because of his origin and long and painful past.
CRIMES AGAINST PROPERTY
By far the largest class of crimes may be called crimes against property. Strictly speaking, these are crimes in relation to the ownership of property; criminal ways of depriving the lawful owner of its possession.
Many writers claim that nearly all crime is caused by economic conditions, or in other words that poverty is practically the whole cause of crime. Endless statistics have been gathered on this subject which seem to show conclusively that property crimes are largely the result of the unequal distribution of wealth. But crime of any class cannot safely be ascribed to a single cause. Life is too complex, heredity is too variant and imperfect, too many separate things contribute to human behavior, to make it possible to trace all actions to a single cause. No one familiar with courts and prisons can fail to observe the close relation between poverty and crime. All lawyers know that the practice of criminal law is a poor business. Most lawyers of ability refuse such practice because it offers no financial rewards. Nearly all the inmates of penal institutions are without money. This is true of almost all men who are placed on trial. Broad generalizations have been made from statistics gathered for at least seventy-five years. It has been noted in every civilized country that the number of property crimes materially increases in the cold months and diminishes in the spring, summer and early autumn. The obvious cause is that employment is less regular in the winter time, expenses of living are higher, idle workers are more numerous, wages are lower, and, in short, it is harder for the poor to live. Most men and women spend their whole lives close to the line of want; they have little or nothing laid by. Sickness, hard luck, or lack of work makes them penniless and desperate. This drives many over the uncertain line between lawful and unlawful conduct and they land in jail. There are more crimes committed in hard times than in good times. When wages are comparatively high and work is steady fewer men enter the extra-hazardous occupation of crime. Strikes, lockouts, panics and the like always leave their list of unfortunates in the prisons. Every lawyer engaged in criminal practice has noticed the large numbers of prosecutions and convictions for all sorts of offences that follow in the wake of strikes and lockouts.
The cost of living has also had a direct effect on crime. Long ago, Buckle, in his "History of Civilization," collected statistics showing that crime rose and fell in direct ratio to the price of food. The life, health and conduct of animals are directly dependent upon the food supply. When the pasture is poor cattle jump the fences. When food is scarce in the mountains and woods the deer come down to the farms and villages. And the same general laws that affect all other animal life affect men. When men are in want, or even when their standard of living is falling, they will take means to get food or its equivalent that they would not think of adopting except from need. This is doubly true when a family is dependent for its daily bread upon its own efforts.
Always bearing in mind that most criminals are men whose equipment and surroundings have made it difficult for them to make the adjustments to environment necessary for success in life, we may easily see how any increase of difficulties will lead to crime. Most men are not well prepared for life. Even in the daily matter of the way to spend their money, they lack the judgment necessary to get the most from what they have. As families increase, debts increase, until many a man finds himself in a net of difficulties with no way out but crime. Men whose necessities have led them to embezzlement and larceny turn up so regularly that they hardly attract attention. Neither does punishment seem to deter others from following the same path although the danger of detection, disgrace and prison is perfectly clear.
Sometimes, of course, men of education and apparent lack of physical defect commit property crimes. Bankers often take money on deposit after the bank is insolvent. Not infrequently they forge notes to cover losses and in various ways manipulate funds to prevent the discovery of insolvency. As a rule the condition of the bank is brought about by the use of funds for speculation, with the intention of repaying from what seems to be a safe venture. Sometimes it comes through bad loans and unforeseen conditions. Business men and bankers frequently shock their friends and the community by suicide, on disclosures showing they have embezzled money to use on some financial venture that came to a disastrous end.
These cases are not difficult to understand. The love of money is the controlling emotion of the age. Just as religion, war, learning, invention and discovery have been the moving passions of former ages, so now the accumulation of large fortunes is the main object that moves man. It does not follow that this phase will not pass away and give place to something more worth while, but while it lasts it will claim its victims, just as other strong emotions in turn have done. The fear of poverty, especially by those who have known something of the value of money, the desire for the power that money brings, the envy of others, the opportunities that seem easy, all these feelings are too strong for many fairly good "machines," and bring disaster when plans go wrong.
Only a small portion of those who have speculated with trust funds are ever prosecuted. Generally the speculation is successful or at least covered up. Many men prefer to take a chance of disgrace or punishment or death rather than remain poor. These are not necessarily dishonest or bad. They may be more venturesome, or more unfortunate; at any rate, it is obvious that the passion for money, the chance to get it, the dread of poverty, the love of wealth and power were too strong for their equipment, otherwise the pressure would have been resisted. The same pressure on some other man would not have brought disaster.
The restrictions placed around the accumulation of property are multiplying faster than any other portions of the criminal code. It takes a long time for new customs or habits or restraints to become a part of the life and consciousness of man so that the mere suggestion of the act causes the reaction that doing it is wrong. No matter how long some statutes are on the books, and how severe the penalties, many men never believe that doing the forbidden act is really a crime. For instance, the violations of many revenue laws, game laws, prohibition laws, and many laws against various means of getting property are often considered as not really criminal. In fact, a large and probably growing class of men disputes the justice of creating many legal rules in reference to private property.
Primitive peoples, as a rule, held property in common. Their inhibitions were few and simple. They took what they needed and wanted in the easiest way. There is a strong call in all life to hark back to primitive feelings, customs and habits. Many new laws are especially painful and difficult to a large class of weak men who form the bulk of our criminal class.
To understand the constant urge to throw off the shackles of civilization, one need but think of the number of men who use liquor or drugs. One need only look at the professional and business man, who at every opportunity leaves civilization and goes to the woods to kill wild animals or to the lakes and streams to fish.
The call to live a simple life, free from the conventions, customs and rules, to kill for the sake of killing, to get to the woods and streams and away from brick buildings and stone walls, is strong in the constitution of almost every man. Probably the underlying cause of the world war was the need of man to relax from the hard and growing strain of the civilization that is continually weaving new fetters to bind him. There must always come a breaking point, for, after all, man is an animal and can live only from and by the primitive things.
Children have no idea of the rights of property. It takes long and patient teaching, even to the most intelligent, to make them feel that there is a point at which the taking of property is wrong. Nowhere in Nature can we see an analogy to our property rights. Plants and animals alike get their sustenance where and how they can. It is not meant here to discuss the question of how many of the restrictions that control the getting of property are wise and how many are foolish; it is only meant to give the facts as they affect life and conduct.
It is certainly true that the child learns very slowly and very imperfectly to distinguish the ways by which he may and may not get property. His nature always protests against it as he goes along. Only a few can ever learn it in anything like completeness. Many men cannot learn it, and if they learned the forbidden things they would have no feeling that to disobey was wrong. Even the most intelligent ones never know or feel the whole code, and in fact, lawyers are forever debating and judges doubting as to whether many ways of getting property are inside or outside the law. No doubt many of the methods that intelligent and respected men adopt for getting property have more inherent criminality than others that are directly forbidden by the law. It must always be remembered that all laws are naturally and inevitably evolved by the strongest force in a community, and in the last analysis made for the protection of the dominant class.
ATTITUDE OF THE CRIMINAL
Probably the chief barrier to the commission of crime is the feeling of right and wrong connected with the doing or not doing of particular acts. All men have a more or less binding conscience. This is the result of long teaching and habit in matters of conduct. Most people are taught at home and in school that certain things are right and that others are wrong. This constant instruction builds up habits and rules of conduct, and it is mainly upon these that society depends for the behavior of its citizens. To most men conscience is the monitor, rather than law. It acts more automatically, and a shock to the conscience is far more effective than the knowledge that a law is broken. For the most part the promptings of conscience follow pretty closely the inhibitions of the criminal code, although they may or may not follow the spirit of the law. Each person has his own idea of the relative values attached to human actions. That is, no two machines respond exactly alike as to the relative importance of different things. No two ethical commands have the same importance to all people or to any two people. Often men do not hesitate to circumvent or violate one statute, when they could never be even tempted to violate another.
Ordinarily unless the response of conscience is quick and plain, men are not bothered by the infraction of the law except, perchance, by the fear of discovery. This is quite apart from the teaching that it is the duty of all men to obey all laws, a proposition so general that it has no effect. Even those who make the statement do not follow the precept, and the long list of penal laws that die from lack of enforcement instead of by repeal is too well known to warrant the belief that anyone pays serious attention to such a purely academic statement. No one believes in the enforcement of all laws or the duty to obey all laws, and no one, in fact, does obey them all. Those who proclaim the loudest the duty of obedience to all laws never obey, for example, the revenue laws. These are clear and explicit, and yet men take every means possible to have their property exempted from taxation—in other words, to defraud the State. This is done on the excuse that everyone else does it, and the man who makes a strict return according to law would pay the taxes of the shirkers. While this is true, it simply shows that all men violate the law when the justification seems sufficient to them. The laws against blasphemy, against Sunday work and Sunday play, against buying and transporting intoxicating liquors and smuggling goods are freely violated. Many laws are so recent that they have not grown to be folk-ways or fixed new habits, and their violation brings no moral shock. In spite of the professions often made, most men have a poor opinion of congressmen and legislators, and feel that their own conscience is a much higher guide for them than the law.
Religions have always taught obedience to God or to what takes His place. Religious commands and feelings, are higher and more binding on man than human law. The captains of industry are forever belittling and criticising all those laws made by legislatures and courts which interfere with the unrestricted use of property. None of this sort of legislation has their approval and the courts are regarded as meddlesome when they enforce it. The anti-trust laws, the anti-pooling laws, factory legislation of all kinds, anything in short that interferes with the unrestricted use of property by its owner are roundly condemned and violated by evasion. On the other hand, so much has been written and said in reference to the creation of the fundamental rights to own property, and these rights depend so absolutely upon social arrangements and work out such manifest injustice and inequality, that there is always a deep-seated feeling of protest against many of our so-called property laws. From those who advocate a new distribution of wealth and condemn the injustice of present property rights, the step is quite short to those who feel the injustice and put their ideas in force by taking property when and where they are able to get it.
For instance, a miner may believe that the corporation for which he works really has no right to the gold down in the mine. As he is digging he strikes a particularly rich pocket of high-grade ore. He feels that he does no wrong if he appropriates the ore. Elaborate means are taken to prevent this, even compelling the absolute stripping of the workman, and a complete change of clothes on going in and coming out of the mine.
Many laws are put on the books which are of a purely sumptuary nature; these attempt to control what one shall do in his own personal affairs. Such laws are brought about by organizations with a "purpose". The members are anxious to make everyone else conform to their ideas and habits. Such laws as Sunday laws, liquor laws and the like are examples. Then, too, every state or nation carries a large list of laws that men have so long violated and ignored, that they virtually are dead. To violate these brings no feeling of wrong, but only serves to make men doubt the evil of violating any law.
It is never easy to get a Legislature to repeal a law. Generally some organization or committee of people is interested in keeping it alive, and the members of the Legislature fear losing their votes. Social ideas are always changing. No laws or customs are eternal. The ordinary man, and especially the man under the normal, cannot keep up with all the shifting of a changing world. There is always a fraction of a community agitating for something new and gradually forcing the Legislature to put it into law, even against the will of the majority and against the sentiment of a large class of the community. The organization that wants something done is always aggressive. The man who wants to prevent it from being done is seldom unduly active or even alarmed. Many organizations are eager to get statutes on the books. One seldom hears of a society or club that is active in getting laws repealed. The constant change of law, the constant fixing of new values in place of old ones, is necessary to social life. This means putting new wine into old bottles, and wine that is much too strong for the bottles. Everybody can see why some particular law might be violated without a sense of guilt, but they cannot see how a law they believe in can be violated without serious obliquity.
Apart from this, there have always been crimes that were not of the class that implied moral wrong. The acts of the revolutionist who saw, or thought he saw, visions of something better; the man who is inspired by the love of his fellow-man and who has no personal ends to gain; the man who in his devotion to an idea or a person risks his life or liberty or property or reputation, has never been classed with those who violate the law for selfish ends. The line of revolutionists, from the beginning of organized government down to the birth of the United States and even to the present time, furnishes ample proof of this. And still the unsuccessful revolutionist meets with the severest penalties. To him failure generally means death. Men who are fired with zeal for all new causes are forever running foul of the law. Social organization, like biological organization, is conservative. All things that live are imbued with the will to live and they take all means in their power to go on living. The philosopher can neither quarrel with the idealist who makes the sacrifice nor the organization that preserves itself while it can; he only recognizes what is true.
Men have always been obliged to fight to preserve liberty. Constitutions and laws do not safeguard liberty. It can be preserved only by a tolerant people, and this means eternal conflict. Emerson said that the good citizen must not be over-obedient to law. Freedom is always trampled on in times of stress. The United States suffered serious encroachments on liberty during the Civil War. During the last war, these encroachments were greater than any American could have possibly dreamed; and so far there seems little immediate chance for change. Still the philosopher does not complain. He sees human passion for what it is, a great emotion that holds men in its grasp, a feeling that nothing can stand against. Opposition is destroyed by force, and often blind, cruel, unreasoning force. Sometimes even worse, this force is created for selfish ends. There are always those who will use the strongest and highest emotions of men to serve their private, sordid ends. Changing social systems, new political ideas, the labor cause, all movements for religious, social or political change have their zealots; they are met by the force of convention and conservatism ready to defend itself, and the clash is inevitable. It is easy to distinguish this sort of action from the things done by those who are known as criminals. Their acts are done to serve personal ends. Society may always punish both, but all men of right ideas will understand that the motive is different, the equipment and capacity of the men are different, and they are only in the same class because they each violate the law and are each responsive to emotions and to feelings that are of sufficient strength to compel action.
THE LAW AND THE CRIMINAL
If one were ill with a specific disease and he were sent to a hospital, every person who touched him, from the time his disease was known until he was discharged, would use all possible effort to bring him back to health. Physiology and psychology alike would be used to effect a cure. Not only would he be given surroundings for regaining health and ample physical treatment, but he would be helped by appeals in the way of praise and encouragement, even to the extent of downright falsehood about his condition, to aid in his recovery.
If such is done of "disease," why not of "crime"? Not only is it clear that crime is a disease whose root is in heredity and environment, but it is clear that with most men, at least when young, by improving environment or adding to knowledge and experience, it is curable. Still with the unfortunate accused of crimes or misdemeanors, from the moment the attention of the officers is drawn to him until his final destruction, everything is done to prevent his recovery and to aggravate and make fatal his disease.
The young boy of the congested districts, who tries to indulge his normal impulses for play, is driven from every vacant lot; he is forbidden normal activity by the police; he has no place of his own; he grows to regard all officers as his enemies instead of his friends; he is taken into court, where the most well-meaning judge lectures him about his duties to his parents and threatens him with the dire evils that the future holds in store for him, unless he reforms. If he is released, nothing is done by society to give him a better environment where he can succeed. He is turned out with his old comrades and into his old life, and is then supposed by strength of will to overcome these surroundings, a thing which can be done by no person, however strong he may be.
For the graver things, the boy or man is taken to the police station. There he is photographed and his name and family record taken down even before he has had a hearing or a trial. He is handled by officers who may do the best they can, but who by training and experience and for lack of time and facilities are not fitted for their important positions. I say this in spite of the fact that my experience has taught me that policemen, as a rule, are kindly and human. From the police station the offender is lodged in jail. Here is huddled together a great mass of human wreckage, a large part of it being the product of imperfect heredities acted upon by impossible environments. However short the time he stays, and however wide his experience, the first offender learns things he never knew before, and takes another degree in the life that an evil destiny has prepared for him. In the jail he is fed much like the animals in the zoo. In many prisons the jailer is making what money he can by the amount he can save on each prisoner he feeds above the rate the law allows of twenty-five or fifty cents a day. In a short time the prisoner's misery and grief turn to bitterness and hate; hatred of jailer, of officers, of society, of existing things, of the fate that overshadows his life. There is only one thing that offers him opportunity and that is a life of crime. He is indicted and prosecuted. The prosecuting attorney is equipped with money and provided with ample detectives and assistants to make it impossible for the prisoner to escape. Everyone believes him guilty from the time of his arrest. The black marks of his life have been recorded at schools, in police stations and examining courts. The good marks are not there and would not be competent evidence if they were. Theoretically the State's Attorney is as much bound to protect him as to prosecute him, but the State's Attorney has the psychology that leads to a belief of guilt, and when he forms that belief his duty follows, which is to land the victim in prison. It is not only his duty to land him in jail, but the office of the State's Attorney is usually a stepping-stone to something else, and he must make a record and be talked about. The public is interested only in sending bad folks to jail.
No doubt there are very few State's Attorneys who would knowingly prosecute unless they believed a man guilty of the offense, but it is easy for a State's Attorney to believe in guilt. Every man's daily life is largely made up of acts from which a presumption of either guilt or innocence can be inferred, depending upon the attitude of the one who draws the inference.
To a State's Attorney or his assistants the case is one that he should win. All cases should be won. Even though he means to be fair, his psychology is to win. No lawyer interested in a result can be fair. The lawyer is an advocate trying to show that his side is right and trying to win the case. The fact that he represents the State makes no difference in his psychology. In fact, he always tells the jury that he represents the State and is as much interested in protecting the defendant as in protecting society. He does this so that the jury will give his statements more weight than the statements of the lawyer for the defense, and this very remark gives him an advantage that is neither fair nor right.
The man on trial is almost always poor. It is only rarely that a poor man can get a competent lawyer to take his case. He is often handed over to the court for the appointment of a lawyer. The lawyer has no time or money to prepare a defense. As a rule he is a beginner not fitted for his job. If he wishes to take the case, he wants it only for the experience and advertising that it will bring. He is handed a case to experiment on, just as a medical student is handed a cadaver to dissect. If the defendant is in jail, he has little chance to prepare his case. If the defendant had any money he would not know what to do with it. He is often a mentally defective person. His friends are of the same class and can do little to help him. The jury are told that they must presume him innocent, but the accusation alone carries with it the presumption of guilt, which extends to everyone connected with the case, even to the lawyer appointed to defend him. It is almost a miracle if the defendant is not convicted.
Perhaps he is taken out to be hanged—the last act that society can do for him, or the convicted man is sent to prison for a long or shorter term. His head is shaved and he is placed in prison garb; he is carefully measured and photographed in his prison clothes, so that if he should ever get back to the world he will forever be under suspicion. Even a change of name cannot help him. While in prison he works and lives under lock and key, like a wild animal, eager to escape. On certain days he is allowed to sit at a long table with other unfortunates like himself, and visit for an hour with mother or father or wife or son or daughter or friend on the other side. Other prisoners, so far as he can associate with them, are as helpless and hopeless and rebellious as he. How they will get out, and when, are their chief concerns. Many of their guards are very humane. Probably no one seeks to torture him, but the system and the psychology are fatal. He sees almost no one who approaches him with friendship and trust and a desire to help, except his family, his closest friends and his companions in misery. He knows that the length of his term is entirely dependent upon officials whom he cannot see or make understand his case. He snatches at the slightest ray of hope. He is in despair from the beginning to the end. No prison has the trained men who, with intelligence and sympathy, should know and watch and help him in his plight. No state would spend the money necessary to employ enough attendants and aids with the learning and skill necessary to build him up. Money is freely spent on the prosecution from the beginning to the end, but no effort is made to help or save. The motto of the state is: "Millions for offense, but not one cent for reclamation."
As all things end, prison sentences are generally finished. The prisoner is given a new suit of clothes that betrays its origin and will be useless after the first rain, ten dollars in cash, and he goes out. His heredity and his hard environment have put him in. Now the state is done with him; he is free. But there is only one place to go. Like any other released animal, he takes the same heredity back to the old environment. What else can he do? His old companions are the only ones who will give him social intercourse, which he needs first of all, and the only ones who understand him. They are the only ones who will be glad to see him and help him get a job. There is only one profession for which he is better fitted after he comes out than he was before he went in, and that is a life of crime. Of course, he is a marked man and a watched man with the police. When a crime is committed and the offender is not found, the ex-convict is rounded up with others of his class to see, perchance, if he is not the offender that is wanted. He is taken to the lock-up and shown with others to the witnesses for identification. Before this, the witness may have been shown his photograph in convict clothes. Perhaps they identify him, perhaps they do not; if identified, he may be the man or he may not be. Anyhow, he has been in prison and this is against him. Whenever he comes out and wherever he goes, his record follows him as closely as his shadow. Even his friends suspect him. They suspect him even when they help him.
Such is the daily life of these unfortunates. What can be done? I can see nothing that the officers of the law can do. Officers represent the people. They reflect mob psychology. Even though an officer here and there rises above the crowd, as he sometimes does, it is of no avail. His place soon is filled by someone else. If only the public would understand! If only the public were more intelligent, which in this case at least would mean more human! If only the statement I repeat so often could be understood! There are no accidents; everything is the result of law. All phenomena are a succession of causes and effects. The criminal is the result of all that went before him and all that surrounds him. Like every other mortal, he is a subject for pity and not for hatred. If society is not safe while he is at large, he must be confined and kept under guard and observation. He must be kept until he is safe and a favorable environment found for him. If he will never be safe for society, he should never be released. He must not be humiliated, made to suffer unduly, despised or harried. He must be helped if he can be helped. This should be the second, if not the first object of his confinement.
Assuming that the scientific attitude toward crime should be accepted by those who make public opinion, and that this should become crystallized into written law, the problem would be easy.
The officers of the state can, as a rule, be depended upon to deal properly and considerately with the known insane. The insane are more trying and difficult than the criminal. Courts and juries and the public, however, recognize their mental condition and do not visit them with vengeance. It is appreciated and understood that they cannot with safety be left at large; but they are given the care and consideration that their condition demands. If the criminal should be looked upon as are the creatures insane from natural causes, the State's Attorney could then be trusted to prepare the case and do the best he could for all concerned. The defendant would no longer be a defendant. His case would be under investigation; his past life would be shown, his credits as well as his debits; he would need no lawyer, not even a public defender; no jury would be required, and the uncertainties and doubts that hang around judgments would be removed. There would be little chance for a miscarriage of justice. Even should there be, it would result in the speedy release of one against whom the public bore no ill-will. One who was sick or insane would ordinarily not need a lawyer, as the state would bear him no malice and make no effort to do more than investigate the case and present the facts. The whole matter should be a purely scientific attempt to find out the best thing to be done both for the interest of the public and the interest of the man.
No doubt, in many cases, men are convicted who are perfectly innocent of the crime of which they are accused. This is especially true with the poor who can provide for no adequate defense and who perhaps have been convicted before of some misdemeanor or crime. This is also often true in cases where there is great prejudice against the defendant, either on account of the nature of the case or of the defendant on trial. For instance, during the recent war a wave of hysteria swept over the world, and courts and juries trampled on individual rights and freely violated the spirit of laws and constitutions. The close of the war left the same intense feelings of bitterness which made justice impossible in cases where the charge savored of treason, and involved criticism of the government, or advocacy of a change of political systems.
Questions of race, religion, politics, labor and the like have always awakened violent feelings on all sides, have made bitter partisans and strict lines of cleavage, and have made verdicts of juries and judgments of courts the result of fear and hatred. In spite of this, most of the inmates of prisons have done the acts charged in the indictments. Why they did them, their states of mind, the conditions and circumstances surrounding them, what can be done to make them stronger and better able to meet life are never ascertained, and few courts or juries have ever deemed these things proper subjects for consideration or in any way involved in the case.
In law every crime consists of two things: an act and an intent. Both are necessary to constitute legal guilt, and on the prevalent theory of moral guilt and punishment both are necessary to make up criminal conduct. There can be no legal or moral guilt unless one intends wickedness; unless he deliberately does the act because he wishes to do wrong and knows he does wrong. The question then of moral guilt, which is necessary to the commission of a criminal act, touches all the questions suggested and many more. Even if freedom of action is to some degree assumed, the question still remains as to the degree of guilt in fixing punishment and responsibility. The question involves the make-up of the man, his full heredity, so far as it can be known.
Most of every man's heredity is hidden in the mist and darkness of the past. He inherits more or less directly through an infinite number of ancestors, reaching back to primitive man and even to the animals from which he came. The remote ancestry is, of course, usually not so important as that immediately behind him. Still, plainly, his form and structure and the details of his whole machine, including the marvelously delicate mechanism of the brain and nervous system, are heritages of the very ancient past. Neither are the processes of inheritance well understood nor subject to much control. Often in the making of the man Nature resorts to some "throw-back" which reproduces the ancient heritage. This can be seen only in general resemblances and behavior, for the genealogical tree of any family is very short and very imperfectly known, and the poor have no past. In three or four generations at the most the backward trail is lost and his family merged with the species of which he forms but a humble part.
Enough, however, is known of ancestry and the infinite marks of inheritance on every structure as well as enough of the reaction of the human machine to the varied environment that surrounds it, to make it clear that if one were all-seeing and all-wise he could account in advance for every action of every man. More than this, he could see in the original, fertilized cell, all its powers, defects and potentialities and could, in the same manner, look down through the short years during which the human organism, grown from the cell, shall have life and movement, and could see its varied environment. If one could see this with infinite wisdom, he could infallibly tell in advance each step that the machine would take and infallibly predict the time and method of its dissolution. To be all-knowing is to be all-understanding, and this is infinitely better than to be all-forgiving.
To get this knowledge of the past of each machine is the duty and work of the tribunal that passes on the fate of a man. It can be done only imperfectly at best. The law furnishes no means of making these judgments. All it furnishes is a tribunal where the contending lawyers can fight, not for justice, but to win. It is little better than the old wager of battle where the parties hired fighters and the issue was settled with swords. Oftentimes the only question settled in court is the relative strength and cunning of the lawyers. The tribunal whose duty it is to fix the future place and status of its fellowmen should be wise, learned, scientific, patient and humane. It should take the time and make its own investigation, and it can be well done in no other way. When public opinion accepts the belief that punishment is only cruelty, that conduct is a result of causes, and that there is no such thing as moral guilt, investigations and sorting and placing of the unfortunate can be done fairly well. The mistakes will be very few and easily corrected when discovered. There will be no cruelty and suffering. The community will be protected and the individual saved.
Neither will this task be so great as it might seem at first glance. Trials would probably be much shorter than the endless, senseless bickering in courts, the long time wasted in selecting juries and the many irrelevant issues on which guilt or innocence are often determined, make necessary now. Most of the criminal cases would likewise be prevented if the state would undertake to improve the general social and economic condition of those who get the least. Only a fraction of the money spent in human destruction, in war and out, would give an education adapted to the individual, even to the most defective. It would make life easy by making the environment easy. Only a few of the defective, physically and mentally, would be left for courts to place in an environment where both they and society could live. Perhaps some time this work will be seriously taken up. Until then, we shall muddle along, fixing and changing and punishing and destroying; we will follow the old course of the ages, which has no purpose, method or end, and leaves only infinite suffering in its path.
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 mass 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 mass of the people of the North. The Fourteenth and Fifteenth Amendments to the Federal Constitution, and the statutes passed 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 amusements 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 assent 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 class 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.
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 classifications. 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 accumulate 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 class 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 pushing 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 assumed 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 punishing 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 passage and enforcement of the law.
Numberless ways used by the strong to get money are considered dishonest by a large class of men and women: exaggerated and lying advertisements, 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 pass 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 punishing 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 passage 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 punishing 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.
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 classified, 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 assist 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 association 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. Assuming 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.
Assuming that man is justified in fixing the moral worth of his fellow; that he is justified in punishment for the purpose of making the offender suffer; and that these punishments according to the degree of severity will in some way pay for or make good the criminal act or protect or help society or prevent crime or even help the offender or someone else, what finally is the correct basis of fixing penalties?