Crime: Its Cause and Treatment
Clarence Darrow

Part 2 out of 4

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

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

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 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.



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

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

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

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



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.



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.



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

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

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.



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



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

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

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?

No science, experience, or philosophy and very little humanity has ever
been considered in fixing punishments. The ordinary penalties are first:
fines, which generally penalize someone else more than the victim; these
with the poor mean depriving families and friends of sorely needed
money, and the direct and indirect consequences are sometimes small and
sometimes very great. These can be readily imagined. If instead of fines
a prison sentence is given, a sort of decimal system has been worked out
by chance or laziness or symmetry of figures; certainly it has been done
wholly regardless of science, for there is no chance to apply science
when it comes to degrading men and taking away a portion of their lives.
Generally ten days is the shortest. From this the court goes to twenty,
then thirty, then sixty, then three months, then six months, then one

Why not eleven days? Why not twenty-four days? Why not forty days? Why
not seventy days? Why not four months or five, or eight or nine or ten
months? Is there no place between six months in jail and a year in jail?
The bids at an auction or the flipping of pennies are exact sciences
compared with the relation between crime and punishment and the process
of arriving at the right penalty. If in the wisdom of the members of the
legislature the crime calls for imprisonment in the penitentiary, then
the ordinary sentences run one, two, five, ten, fifteen, twenty, thirty
years, and life, according to the hazard of the legislature, the whim of
the court, the gamble of the jury, or the feeling and means of
expression of the unthinking and pitiless crowd who awe courts and
juries with their cries for vengeance.

Neither does punishment affect any two alike; the sensitive and proud
may suffer more from a day in jail or even from conviction than another
would suffer from a year. The various courts and juries of the different
states fix different penalties. Even in the same state there is no sort
of resemblance to the punishments generally given for similar crimes.
Some jurisdictions, some juries and some courts will make these three or
four times as severe as others for the same things. Some days the same
judge will give a longer sentence than on other days. In this judges are
like all of us. We have our days when we feel kindly and sympathetic
toward all mankind. We have our days when we mistrust and dislike the
world in general and many people in particular. Largely the weather
influences those feelings. Therefore, the amount of time a person spends
in prison may depend to a great extent on the condition of the weather
at the time of conviction or when sentence is passed. The physical
condition of judge or jury, and above all, their types of mind, are
all-controlling. No two men have the same imagination: some are harsh
and cruel; others kind and sympathetic; one can weigh wheat and corn and
butter and sugar; one can measure water and molasses and gasoline. When
one measures or weighs, one can speak with exactness regarding the thing
involved. Justice and mercy and punishment cannot be measured or
weighed; in fact there is even no starting point. The impossibility of
it all makes many of the humane and wise doubt their right to pass
judgment upon their fellow man. Society no doubt is bound by
self-protection to resist certain acts and to restrain certain men, but
it is in no way bound to pass moral judgments.

Under any system based on a scientific treatment of crime, men would be
taken care of as long as it was necessary to restrain them. It would be
done in the best possible way for their own welfare. If they ever were
adjudged competent to enter society again, they would be released when
that time came. Neither under a right understanding, and a humane,
scientific and honest administration, would it be necessary that places
of confinement should be places of either degradation or misery. In fact
the inmate might well be put where he could enjoy life more than he did
before he was confined. It might and should be the case also that he
could produce enough to amply take care of himself and provide for those
who would naturally look to him for support, and perhaps make
compensation for the injury he had caused to someone else.

It is obvious that this cannot be done until men have a different point
of view toward crime. In the last hundred years much has been done to
make prisons better and to make more tolerable the life of the inmates.
This has been accomplished by men who looked on criminals as being at
least to a certain extent like other men.

Above all, as things are now, the prison inmate has no chance to learn
to conform unless hope is constantly kept before him. He should be like
the convalescing invalid, able from time to time to note his gradual
progress in the ability to make the adjustments that are necessary to
social beings. No patient in a hospital could be cured if he were
constantly told that he could not get well and should not get well. His
imagination should be enlarged by every means that science can bring to
the teaching of man.

First of all there must be individual treatment. No one would think of
putting hundreds or thousands of the ill or insane into a pen, giving
them numbers, leaving them so that no capable person knows their names,
their histories, their families, their possibilities, their strength or
their weaknesses. Every intelligent person must know that this would
inevitably lead to misery and death. The treatment of men in prison is a
much more difficult problem than the care of the physically diseased. It
requires a knowledge of biology, of psychology, of hygiene, of teaching
and of life; it needs infinite patience and sympathy; it needs thorough
acquaintance and constant attention. It is a harder task than the one
that confronts the physician in the hospital, because the material is
poorer, the make is more defective, and the process of cure or
development much slower and not so easily seen.

No person is entirely without the sympathetic, idealistic and altruistic
impulses, which after all are the mainsprings of social adaptation.
Probably these innate feelings can be found in prisoners as generally as
in other men. It is the lack of these qualities that often keeps men
outside the jail. They "get by" where kindly and impulsive men fail. A
large part of the crime, especially of the young, comes from the desire
to do something for someone else and from the ease with which persons
are led or yield to solicitation.

The criminal has always been met by coldness and hatred that have made
him lose his finer feelings, have blunted his sensibilities, and have
taught him to regard all others as his enemies and not his friends. The
ideal society is one where the individuals move harmoniously in their
various orbits without outside control. The governing power of a perfect
order in its last analysis must be within the individual. A perfect
system probably will never come. Men are too imperfect, too weak, too
ignorant and too selfish to accomplish it. Still, if we wish to go
toward perfection, there is no other road.

One of the favorite occupations of legislatures is changing punishments
in obedience to the clamor of the public. In times of ordinary
tranquility a penalty may even be modified or reduced, but let the
newspapers awaken public opinion to crime by the judicious use of
headlines and a hot campaign, let the members feel that there is a
popular clamor and that votes may be won or lost, and the legislature
responds. This is generally done without reference to the experience of
the world, without regard to the nature of man, with no thought of the
victim, and with no clear conception of how the legislation will really
affect the public.

The demand is constantly made that such crimes as kidnapping, train
robbing, rape and robbery should be punished with death, or at least
with imprisonment for life. Irrespective of its effect on the criminal,
what is the effect on the victim of the criminal? A man is held up on a
lonely highway; the robber does not intend to kill. His face is exposed.
If the penalty for robbery is life imprisonment, he kills to avoid
detection. If it is death, he kills even before he robs. The same thing
operates in rape, in burglary, and in other crimes. In all property
crimes not only is no killing intended or wanted, but precautions are
taken to guard against killing. All laws to make drastic penalties
should really be entitled: "An Act to Promote Murder."

Making penalties too drastic destroys the effect meant to be produced.
Public clamor does not last forever. Men grow tired of keeping their
tongues wagging on the same subject all the time. A state of frenzy is
abnormal and when it subsides the temperature not only goes back to
normal, but as far below as it has been above. When the fury has spent
itself jurors regain some of their human feeling and refuse to convict.
History has proved this over and over again, and still politicians
always seek to ride into power on the crest of the wave; when the wave
moves back, they can easily go back with it. Even if the severe
punishments should be continued without abatement, these soon lose their
power to terrify. Communities grow accustomed to hangings; they get used
to life sentences and long imprisonments and the severity no longer
serves to awe. The cruelty serves only as a mark of the civilization of
the day. Some day, perhaps, a wiser and more humane world will marvel at
our cruelty and ignorance, as we now marvel at the barbarity of the



The ordinary man who hears of a crime hates the criminal and wants him
to suffer. He does not picture the malefactor as a man who, for some
all-sufficient reason, has committed a dreadful act. Still less does he
ask: "Has he a father or mother, a wife or children, brothers or
sisters, and how are these affected by his deed?" No one can
intelligently deal with the criminal without considering these.
Practically no inmate of a prison stands alone. He is a member of a
family or small social group, and inevitably the interests of these
others are more or less closely bound up with his. If punishment is
justified for its influence on society, these must be taken into account
with the other members of the social organization.

The criminal, it must be remembered, is almost always poor. He has a
mother, brothers and sisters, wife or children, dependent for support to
a large extent, upon his casual earnings. He is placed in jail or the
penitentiary and the family must make new adjustments to life. The
mother or wife may go to work at hard labor for a small return; the
children may be taken out of school and sent to stores or factories, be
condemned to lives of drudgery that will often lead to crime. The family
may be broken up and scattered through institutions and the poorest
shelters. A complete transformation for the worse almost always comes
over the home. It is safe to say that at least three or four are closely
touched by the misfortune of every one. These lives must be readjusted,
and the chances are that the new adjustments will not be equal to the
old, if for nothing else than because the conviction is a serious
handicap in their struggles. Let anyone go to a city jail on a visiting
day and see the old mothers, the stunned and weeping wives, the little
children, down to babes in arms, who crowd around the corridors to get a
look at the man behind the bars. To them at least he is a human being
with feelings and affections, with wants and needs. All of these can
recount his many good qualities which the world cannot see or know.
Their first step is to borrow or to sell what they can to provide means
for his defense. Everything else is cast aside. Day after day they visit
the jail and the lawyer, contriving means to save liberty or life. When
the trial comes, they watch through its maze in a dazed, bewildered way.
They know that the man they love is not the one who is painted in the
court room, and at least to them he is not. If he is convicted and goes
to prison for a term of years, then month by month the faithful family
goes to see him for an hour in the prison, visiting across the table in
open view of guards and others as unfortunate as they. The family
follows all sorts of advice and directions and seeks out many hopeless
clews for men of influence and position who can unlock prison doors. The
weeks run into months and the months into years, and still many of them
keep up their hopeless vigil; some are driven to drudgery, some to
crime, some to destruction for the man whom the state has punished that
society may be improved. It is safe to say that the state ruins at least
one other life for every victim of the prison.

No provision is made for the dependent families of the wretched man.
Ruthlessly society sends the man to prison and sees the daughter leave
school, a mere child, and go to work. What becomes of her it does not
know or care. It seems not to know that she exists. The state sees the
convict's boy working at casual tasks and growing up on the streets,
while his father is paying the penalty of his act. He may on this
account follow his father to jail; it is not society's concern.

Assuming that an offender must be confined for the protection of
society, as some no doubt must be, still the effect on the family and
how to prevent its destruction should be among the first concerns in the
disposition of the case.



Among primitive peoples the penal code was always short. Desire for
property had not taken possession of their emotions. Their lives were
simple, their adjustments few, and there was no call for an elaborate
code of prohibited acts. Their punishments were generally simple, direct
and severe: usually death or banishment which often meant death,
sometimes maiming and branding, so that the offender might serve as a
constant warning to others.

Primitive peoples early asked questions about their origin and destiny.
The unknown filled most of the experiences of their lives. The realm of
the known was very small. They had no idea of law and system, of cause
and effect. They early began evolving religious ideas. The
manifestations of nature, the mystery of birth, the fear of death, the
phenomena of dreams, the growth and harvesting of crops--all of these
were beyond their understanding. They peopled the earth with gods to be
propitiated and appeased. Everything was the act of a special
providence. From early times religion and witchcraft furnished the
chief subjects for the criminal code.

The penalties for the violation of the code were always severe,
generally death, and by the most terrorizing ways. No other crime could
be so great as to arouse the anger of the gods, and naturally no other
conduct should demand so severe a penalty as calling down the wrath of
the gods. This would fall not only upon the offending man, but upon the
community of which he was a part. Even as man developed in knowledge and
civilization, this sort of crime continued to furnish the greater
proportion of victims and the most cruel punishments. Torture of the
most fiendish sort was evoked to catch offenders and extort confessions.
Difference of religious opinions was the worst crime. The inquisition
became an established thing. Sometimes a nation was almost wiped out
that heretics should be killed and heresies destroyed. The heretic was
the one who did not accept the prevailing faith. The list of victims of
punishment on account of religion, witchcraft, sorcery and kindred laws
has in the past no doubt been larger than for any other charges.

This kind of laws always called out the greatest zeal in their
enforcement. To the religious enthusiast nothing else was of equal
importance. It involved not only the life of man on earth but his life
through all eternity. Our statutes today are replete with such crimes,
but the punishments have been lessened and, as a rule, communities will
not enforce them. But laws against blasphemy, working on Sunday, and
Sunday amusements of all sorts, are still on the books and enforced in
some places. A large organization and an influential and aggressive part
of the Christian Church are insisting that these laws shall be enforced
to the limit and that still others shall be placed among the statutes of
the several states.

The methods of inflicting the death penalty have been various, the
favorite ways being burning, boiling in oil, boiling in water, breaking
on the rack, smothering, beheading, crucifying, stoning, strangling and
electrocuting. Until the middle of the last century they were carried
out in the presence of the multitude so that all might be warned by the

The number of crimes for which death and bodily torture have been the
punishment can scarcely be recorded, and if they could it would be of no
value. They would run into the hundreds and probably the thousands. A
large part of these crimes are now obsolete. Doubtless more men have
been executed for crimes they did not commit and could not commit than
for any real wrong of which they were guilty.

Prisons came into fashion later than the death penalty, and as a form of
punishment have gradually come to take the place of most death
penalties. Prisons in the past have been loathsome places and not much
better than death. Prisoners have been packed together so closely that
life was almost impossible. To incarcerate victims in prisons has
brought terrible punishment not only on the prisoners and their
families, but indirectly on the state. No doubt through the years
prisons have been gradually improved. Many of their terrors have been
banished. People have come to believe that even a prisoner should have
some consideration from the state. Penalties have likewise grown less
severe and terms have been shortened, but this course has not been
regular or constant; the public readily relaxes into hatred and
vengeance, and it is easy to arouse these feelings in men, since they
lie very close to the surface. A constant struggle has always been waged
by the humane to make man more kindly, and yet probably his nature does
not really change. A few months of frenzy may easily undo the work of

So long as men punish for the sake of punishment, there will be a
disagreement between the advocates of long punishment and short
punishment, hard punishment and light punishment. From the nature of
things, there is no basis on which this can be determined. The only
thing that throws any light on the question is experience, and men can
always differ as to the lessons of experience. Neither do they remember
experience when feelings are concerned.

Punishment can deter only on the ground of the fear that flows from it.
Fear comes from things that are more or less unusual. Man has little
abstract fear of a natural death; it is so unavoidable that it does not
even figure in the ordinary affairs of life. Extreme punishments may
grow so common that few give them any concern. They probably are so
common now that the impression they make is not very great. Lighter and
easier punishments would have the same psychological effect. In many
cases a lenient punishment would also eliminate much of the hatred and
bitterness against the world that are common to all inmates of prisons.



The question of capital punishment has been the subject of endless
discussion and will probably never be settled so long as men believe in
punishment. Some states have abolished and then reinstated it; some have
enjoyed capital punishment for long periods of time and finally
prohibited the use of it. The reasons why it cannot be settled are
plain. There is first of all no agreement as to the objects of
punishment. Next there is no way to determine the results of punishment.
If the object is assumed it is a matter of conjecture as to what will be
most likely to bring the result. If it could be shown that any form of
punishment would bring the immediate result, it would be impossible to
show its indirect result although indirect results are as certain as
direct ones. Even if all of this could be clearly proven, the world
would be no nearer the solution. Questions of this sort, or perhaps of
any sort, are not settled by reason; they are settled by prejudices and
sentiments or by emotion. When they are settled they do not stay
settled, for the emotions change as new stimuli are applied to the

A state may provide for life imprisonment in place of death. Some
especially atrocious murder may occur and be fully exploited in the
press. Public feeling will be fanned to a flame. Bitter hatred will be
aroused against the murderer. It is perfectly obvious to the multitude
that if other men had been hanged for murder, this victim would not have
been killed. A legislature meets before the hatred has had time to cool
and the law is changed. Again, a community may have capital punishment
and nothing notable happens. Now and then hangings occur. Juries acquit
because of the severity of the penalty. A feeling of shame or some
bungling execution may arouse a community against it. A deep-seated
doubt may arise as to the guilt of a man who has been put to death. The
sentimental people triumph. The law is changed. Nothing has been found
out; no question has been settled; science has made no contribution; the
public has changed its mind, or, speaking more correctly, has had
another emotion and passed another law.

In the main, the controversy over capital punishment has been one
between emotional and unemotional people. Now and then the emotionalist
is reinforced by some who have a religious conviction against capital
punishment, based perhaps on the rather trite expression that "God gave
life and only God should take it away." Such a statement is plausible
but not capable of proof. In the main religious people believe in
capital punishment. The advocates of capital punishment dispose of the
question by saying that it is the "sentimentalist" or, rather, the
"maudlin sentimentalist" who is against it. Sentimentalist really
implies "maudlin."

But emotion too has its biological origin and is a subject of scientific
definition. A really "sentimental" person, in the sense used, is one who
has sympathy. This, in turn, comes from imagination which is probably
the result of a sensitive nervous system, one that quickly and easily
responds to stimuli. Those who have weak emotions do not respond so
readily to impressions. Their assumption of superior wisdom has its
basis only in a nervous system which is sluggish and phlegmatic to
stimuli. Such impressions as each system makes are registered on the
brain and become the material for recollection and comparison, which go
to form opinion. The correctness of the mental processes depends upon
the correctness of the senses that receive the impression, the nerves
that transmit the correctness of the registration, and the character of
the brain. It does not follow that the stoic has a better brain than the
despised "sentimentalist." Either one of them may have a good one, and
either one of them a poor one. Still, charity and kindliness probably
come from the sensitive system which imagines itself in the place of
the object that it pities. All pity is really pain engendered by the
feelings that translate one into the place of another. Both hate and
love are biologically necessary to life and its processes.

Many people urge that the penalty of imprisonment for life would be all
right if the culprit could be kept in prison during life, but in the
course of time he is pardoned. This to me is an excellent reason why his
life should be saved. It is proof that the feeling of hatred that
inspired judge and jury has spent itself and that they can look at the
murderer as a man. Which decision is the more righteous, the one where
hatred and fear affect the judgment and sentence, or the one where these
emotions have spent their force?

Everyone who advocates capital punishment is really ashamed of the
practice for which he is responsible. Instead of urging public
executions, the most advanced and sensitive who believe in killing by
the state are now advocating that even the newspapers should not publish
the details and that the killing should be done in darkness and silence.
In that event no one would be deterred by the cruelty of the state. That
capital punishment is horrible and cruel is the reason for its
existence. That men should be taught not to take life is the purpose of
judicial killings. But the spectacle of the state taking life must tend
to cheapen it. This must be evident to all who believe in suggestion.
Constant association and familiarity tend to lessen the shock of any
act however revolting. If men regarded the murderer as one who acted
from some all-sufficient cause and who was simply an instrument in an
endless sequence of cause and effect, would anyone say he should be put
to death?

It is not easy to estimate values correctly. It may be that life is not
important. Nature seems extravagantly profligate in her giving and
pitiless in her taking away. Yet death has something of the same shock
today that was felt when men first gazed upon the dead with awe and
wonder and terror. Constantly meeting it and seeing it and procuring it
will doubtless make it more commonplace. To the seasoned soldier in the
army it means less than it did before he became a soldier. Probably the
undertaker thinks less of death than almost any other man. He is so
accustomed to it that his mind must involuntarily turn from its horror
to a contemplation of how much he makes out of the burial. If the
civilized savages have their way and make hangings common, we shall
probably recover from some of our instinctive fear of death and the
extravagant value that we place on life. The social organism is like the
individual organism: it can be so often shocked that it grows accustomed
and weary and no longer manifests resistance or surprise.

So far as we can reason on questions of life and death and the effect
of stimuli upon human organisms, the circle is like this: Frequent
executions dull the sensibilities toward the taking of life. This makes
it easier for men to kill and increases murders, which in turn increase
hangings, which in turn increase murders, and so on, around the vicious

In the absence of any solid starting point on which an argument can be
based; in the absence of any reliable figures; in the absence of any way
to interpret the figures; in the absence of any way to ascertain the
indirect results of judicial killings, even if the direct ones could be
shown; in the impossibility through life, experience or philosophy of
fixing relative values, the question must remain where it has always
been, a conflict between the emotional and unemotional; the
"sentimental" and the stolid; the imaginative and the unimaginative; the
sympathetic and the unsympathetic. Personally, being inclined to a
purely mechanistic view of life and to the belief that all conduct is
the result of certain stimuli upon a human machine, I can only say that
the stimuli of seeing and reading of capital punishment, applied to my
machine, is revolting and horrible. Perhaps as the world improves, the
sympathetic and imaginative nature will survive the stolid and selfish.
At least one can well believe that this is the line of progress if there
shall be progress, a matter still open to question and doubt.



Lombroso and others have emphasized the theory that the criminal is a
distinct physical type. This doctrine has been so positively asserted
and with such a show of statistics and authority, that it has many
advocates. More recent investigations seem to show conclusively that
there is little or no foundation for the idea that the criminal is a
separate type. Men accustomed to criminal courts and prisons cannot
avoid being impressed with the marks of inferiority that are apparent in
prisoners. Most prisoners are wretched and poorly nourished, wear poor
clothes and are uncared-for and unkempt. Their stunted appearance is
doubtless due largely to poor food, the irregularity of nourishment, and
the sordidness of their lives in general. One also imagines that a
prisoner looks the part, and in his clothes and surroundings he
generally does. It is hard for a prisoner to look well-groomed; he has
neither the opportunity nor the ambition to give much attention to his
personal appearance. The looks of the prisoners are of little value.
Nothing but actual measurements could give real information, and these
do not sustain the theory of their being different from other men.

It is not possible to see how the criminal can be of a distinct physical
type. Criminality exists only in reference to an environment. One cannot
be born a criminal. One may be, and often is, born with such an
imperfect equipment that he cannot make his adjustments to life, and
soon falls a victim to crime and disease. All that a physical
examination could do would be to show the strength or weakness of the
body and its various organs. What may befall him will depend partly on
the kind and quality of his mind and nervous system, and partly on the
physical structure and the kind of experiences that life holds in store
for him.

No doubt thorough psychological examinations would reveal something of
the brain, just as physical examinations certainly would determine the
strength and capacity of the body. This would be of material aid in
determining the kind of environment that should be found for the
individual, and if such environment could be easily found it would avert
most of the calamities which beset the path of the youth.

Something can be told of a person's character from his eyes, the
expression of the face and the contour of the head, but this information
is very misleading as our everyday experience shows. It is not
necessary to find stigmata in the prisoner to know that he was born the
way he is. One's character must be fixed before birth whether Nature
marks it on one's head or not. Likewise every particle of matter moves
from stimuli and obedience to law, regardless of whether it shows in the
face or not. The strong are no more exempt from the law than the weak.
All the difference is that they can longer and more easily avoid

Everyone is in the habit of forming a hasty opinion of another by
reading his face and noting his expression. But the indication given by
facial expression is mainly the product of the life that has been lived,
and tells something of the part that the hidden emotions have played on
the body.

It has been generally believed that mind has its seat in the brain and
the nervous system. Later investigations, however, seem to show that it
is the product of the whole physical organism. There is no chance to
measure or weigh or still less assay the qualities of the machine. It is
certain that the quality of the mind depends very little upon either the
contour or size of the skull.

About all that can be learned of the mind and the character of the man
must be gathered from the manifestation of the machine. It is shown by
his behavior in action and reaction. This behavior is caused by the
capture, storage and release of energy through the ductless glands.

A defective mechanism either inherited or acquired through imperfectly
balanced glands will inevitably produce an imperfect mind and defective
conduct. This it will be bound to do because the body is the mind.

As a matter of fact, no man is branded physically with the "mark of
Cain." If criminology were so simple it would not be difficult to
handle. The manifestations of the human machine are infinite and only
patience and careful study can find the points of weakness and of
strength. That all brains and bodies have both is beyond dispute. No
physical human structure was ever put together where the organs were
equally strong to do the work assigned to them. Some part of the body
always needs watchfulness and repair and can never be depended upon in
emergencies. In times of overstress and strain, the defective organ or
organs will manifest their weakness. The intricate nervous system and
the brain, the unseen instincts and emotions likewise do not work
perfectly; but as a rule the ones that underwork or overwork cannot be
seen by a physical examination. It generally requires great subtlety to
find them, and careful treatment and environment to make the machine
work fairly well in spite of these imperfections. This could be
provided; in most cases the machine could be placed in an environment
where it would work fairly well; but instead of this all the effort
that is made to keep the machine in shape is a threat of the jail if it
goes wrong; it is then left to run itself without help or assistance of
any kind.

While examinations of the head do not show marked differences between
prisoners and others, a great distinction is seen between the general
proportion and the degrees of nourishment of prisoners and those not
accused of crime. Nothing is more common than the weak and underfed
condition of the delinquent and the criminal. This needs no expert
examination. It is obvious to all. The poor, scanty clothes and personal
belongings corroborate the fact that the accused is poor and has not
enough to eat or wear, nor anything but the most scanty shelter. In
addition to these facts, he is almost always ill. A report recently
published, based on investigations by a special committee of the New
York State Commission of Prisons, shows that in the New York Reformatory
only eight per cent passed the required physical examination. In the
penitentiary, where the average age was higher, only five per cent
passed the test. In the work house--the home of the "down and
outs"--only one per cent passed. The health tests employed were those
for admission to the army. It was likewise found by the same commission
that of those in good health or fair physical condition, eighty-five per
cent were self-supporting, while only eighteen per cent of those in
poor physical condition took care of themselves.

Disease and ill health, when found so generally, are in themselves
indications of a defective system, and such machines are constantly
exposed to temptation. Their needs are ever present and their poverty
great. Sickness and disease weaken or destroy such inhibitions as the
unfortunate are able to build up, and they readily yield to crime.



The criminal is confronted in court with an indictment charging him with
a violation of the law. He is a human being, like all others, neither
perfect nor entirely worthless. He has some tendencies and inclinations
which the world calls good for lack of a better term, and some that it
calls bad for the same reason. In this he is like the jury and the
judge. The strength of the different tendencies is not the same in any
two machines. The judge and jury are interested in determining whether
he is good or bad; that is, better or worse than they themselves. In
theory he is tried on the charges contained in the indictment.

In most cases by a constant stretching of the rules of evidence his
whole life may be involved. That is, proof may be offered of any act of
delinquency that constituted a violation of the law, if in any way
similar, or in any way connected with the one charged in the indictment.


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