Chapter 7

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.

XV

ATTITUDE OF THE CRIMINAL

Probably the chief barrier to the commission of crime is the feeling of right and wrong connected with the doing or not doing of particular acts. All men have a more or less binding conscience. This is the result of long teaching and habit in matters of conduct. Most people are taught at home and in school that certain things are right and that others are wrong. This constant instruction builds up habits and rules of conduct, and it is mainly upon these that society depends for the behavior of its citizens. To most men conscience is the monitor, rather than law. It acts more automatically, and a shock to the conscience is far more effective than the knowledge that a law is broken. For the most part the promptings of conscience follow pretty closely the inhibitions of the criminal code, although they may or may not follow the spirit of the law. Each person has his own idea of the relative values attached to human actions. That is, no two machines respond exactly alike as to the relative importance of different things. No two ethical commands have the same importance to all people or to any two people. Often men do not hesitate to circumvent or violate one statute, when they could never be even tempted to violate another.

Ordinarily unless the response of conscience is quick and plain, men are not bothered by the infraction of the law except, perchance, by the fear of discovery. This is quite apart from the teaching that it is the duty of all men to obey all laws, a proposition so general that it has no effect. Even those who make the statement do not follow the precept, and the long list of penal laws that die from lack of enforcement instead of by repeal is too well known to warrant the belief that anyone pays serious attention to such a purely academic statement. No one believes in the enforcement of all laws or the duty to obey all laws, and no one, in fact, does obey them all. Those who proclaim the loudest the duty of obedience to all laws never obey, for example, the revenue laws. These are clear and explicit, and yet men take every means possible to have their property exempted from taxation--in other words, to defraud the State. This is done on the excuse that everyone else does it, and the man who makes a strict return according to law would pay the taxes of the shirkers. While this is true, it simply shows that all men violate the law when the justification seems sufficient to them. The laws against blasphemy, against Sunday work and Sunday play, against buying and transporting intoxicating liquors and smuggling goods are freely violated. Many laws are so recent that they have not grown to be folk-ways or fixed new habits, and their violation brings no moral shock. In spite of the professions often made, most men have a poor opinion of congressmen and legislators, and feel that their own conscience is a much higher guide for them than the law.

Religions have always taught obedience to God or to what takes His place. Religious commands and feelings, are higher and more binding on man than human law. The captains of industry are forever belittling and criticising all those laws made by legislatures and courts which interfere with the unrestricted use of property. None of this sort of legislation has their approval and the courts are regarded as meddlesome when they enforce it. The anti-trust laws, the anti-pooling laws, factory legislation of all kinds, anything in short that interferes with the unrestricted use of property by its owner are roundly condemned and violated by evasion. On the other hand, so much has been written and said in reference to the creation of the fundamental rights to own property, and these rights depend so absolutely upon social arrangements and work out such manifest injustice and inequality, that there is always a deep-seated feeling of protest against many of our so-called property laws. From those who advocate a new distribution of wealth and condemn the injustice of present property rights, the step is quite short to those who feel the injustice and put their ideas in force by taking property when and where they are able to get it.

For instance, a miner may believe that the corporation for which he works really has no right to the gold down in the mine. As he is digging he strikes a particularly rich pocket of high-grade ore. He feels that he does no wrong if he appropriates the ore. Elaborate means are taken to prevent this, even compelling the absolute stripping of the workman, and a complete change of clothes on going in and coming out of the mine.

Many laws are put on the books which are of a purely sumptuary nature; these attempt to control what one shall do in his own personal affairs. Such laws are brought about by organizations with a "purpose". The members are anxious to make everyone else conform to their ideas and habits. Such laws as Sunday laws, liquor laws and the like are examples. Then, too, every state or nation carries a large list of laws that men have so long violated and ignored, that they virtually are dead. To violate these brings no feeling of wrong, but only serves to make men doubt the evil of violating any law.

It is never easy to get a Legislature to repeal a law. Generally some organization or committee of people is interested in keeping it alive, and the members of the Legislature fear losing their votes. Social ideas are always changing. No laws or customs are eternal. The ordinary man, and especially the man under the normal, cannot keep up with all the shifting of a changing world. There is always a fraction of a community agitating for something new and gradually forcing the Legislature to put it into law, even against the will of the majority and against the sentiment of a large class of the community. The organization that wants something done is always aggressive. The man who wants to prevent it from being done is seldom unduly active or even alarmed. Many organizations are eager to get statutes on the books. One seldom hears of a society or club that is active in getting laws repealed. The constant change of law, the constant fixing of new values in place of old ones, is necessary to social life. This means putting new wine into old bottles, and wine that is much too strong for the bottles. Everybody can see why some particular law might be violated without a sense of guilt, but they cannot see how a law they believe in can be violated without serious obliquity.

Apart from this, there have always been crimes that were not of the class that implied moral wrong. The acts of the revolutionist who saw, or thought he saw, visions of something better; the man who is inspired by the love of his fellow-man and who has no personal ends to gain; the man who in his devotion to an idea or a person risks his life or liberty or property or reputation, has never been classed with those who violate the law for selfish ends. The line of revolutionists, from the beginning of organized government down to the birth of the United States and even to the present time, furnishes ample proof of this. And still the unsuccessful revolutionist meets with the severest penalties. To him failure generally means death. Men who are fired with zeal for all new causes are forever running foul of the law. Social organization, like biological organization, is conservative. All things that live are imbued with the will to live and they take all means in their power to go on living. The philosopher can neither quarrel with the idealist who makes the sacrifice nor the organization that preserves itself while it can; he only recognizes what is true.

Men have always been obliged to fight to preserve liberty. Constitutions and laws do not safeguard liberty. It can be preserved only by a tolerant people, and this means eternal conflict. Emerson said that the good citizen must not be over-obedient to law. Freedom is always trampled on in times of stress. The United States suffered serious encroachments on liberty during the Civil War. During the last war, these encroachments were greater than any American could have possibly dreamed; and so far there seems little immediate chance for change. Still the philosopher does not complain. He sees human passion for what it is, a great emotion that holds men in its grasp, a feeling that nothing can stand against. Opposition is destroyed by force, and often blind, cruel, unreasoning force. Sometimes even worse, this force is created for selfish ends. There are always those who will use the strongest and highest emotions of men to serve their private, sordid ends. Changing social systems, new political ideas, the labor cause, all movements for religious, social or political change have their zealots; they are met by the force of convention and conservatism ready to defend itself, and the clash is inevitable. It is easy to distinguish this sort of action from the things done by those who are known as criminals. Their acts are done to serve personal ends. Society may always punish both, but all men of right ideas will understand that the motive is different, the equipment and capacity of the men are different, and they are only in the same class because they each violate the law and are each responsive to emotions and to feelings that are of sufficient strength to compel action.

XVI

THE LAW AND THE CRIMINAL

If one were ill with a specific disease and he were sent to a hospital, every person who touched him, from the time his disease was known until he was discharged, would use all possible effort to bring him back to health. Physiology and psychology alike would be used to effect a cure. Not only would he be given surroundings for regaining health and ample physical treatment, but he would be helped by appeals in the way of praise and encouragement, even to the extent of downright falsehood about his condition, to aid in his recovery.

If such is done of "disease," why not of "crime"? Not only is it clear that crime is a disease whose root is in heredity and environment, but it is clear that with most men, at least when young, by improving environment or adding to knowledge and experience, it is curable. Still with the unfortunate accused of crimes or misdemeanors, from the moment the attention of the officers is drawn to him until his final destruction, everything is done to prevent his recovery and to aggravate and make fatal his disease.

The young boy of the congested districts, who tries to indulge his normal impulses for play, is driven from every vacant lot; he is forbidden normal activity by the police; he has no place of his own; he grows to regard all officers as his enemies instead of his friends; he is taken into court, where the most well-meaning judge lectures him about his duties to his parents and threatens him with the dire evils that the future holds in store for him, unless he reforms. If he is released, nothing is done by society to give him a better environment where he can succeed. He is turned out with his old comrades and into his old life, and is then supposed by strength of will to overcome these surroundings, a thing which can be done by no person, however strong he may be.

For the graver things, the boy or man is taken to the police station. There he is photographed and his name and family record taken down even before he has had a hearing or a trial. He is handled by officers who may do the best they can, but who by training and experience and for lack of time and facilities are not fitted for their important positions. I say this in spite of the fact that my experience has taught me that policemen, as a rule, are kindly and human. From the police station the offender is lodged in jail. Here is huddled together a great mass of human wreckage, a large part of it being the product of imperfect heredities acted upon by impossible environments. However short the time he stays, and however wide his experience, the first offender learns things he never knew before, and takes another degree in the life that an evil destiny has prepared for him. In the jail he is fed much like the animals in the zoo. In many prisons the jailer is making what money he can by the amount he can save on each prisoner he feeds above the rate the law allows of twenty-five or fifty cents a day. In a short time the prisoner's misery and grief turn to bitterness and hate; hatred of jailer, of officers, of society, of existing things, of the fate that overshadows his life. There is only one thing that offers him opportunity and that is a life of crime. He is indicted and prosecuted. The prosecuting attorney is equipped with money and provided with ample detectives and assistants to make it impossible for the prisoner to escape. Everyone believes him guilty from the time of his arrest. The black marks of his life have been recorded at schools, in police stations and examining courts. The good marks are not there and would not be competent evidence if they were. Theoretically the State's Attorney is as much bound to protect him as to prosecute him, but the State's Attorney has the psychology that leads to a belief of guilt, and when he forms that belief his duty follows, which is to land the victim in prison. It is not only his duty to land him in jail, but the office of the State's Attorney is usually a stepping-stone to something else, and he must make a record and be talked about. The public is interested only in sending bad folks to jail.

No doubt there are very few State's Attorneys who would knowingly prosecute unless they believed a man guilty of the offense, but it is easy for a State's Attorney to believe in guilt. Every man's daily life is largely made up of acts from which a presumption of either guilt or innocence can be inferred, depending upon the attitude of the one who draws the inference.

To a State's Attorney or his assistants the case is one that he should win. All cases should be won. Even though he means to be fair, his psychology is to win. No lawyer interested in a result can be fair. The lawyer is an advocate trying to show that his side is right and trying to win the case. The fact that he represents the State makes no difference in his psychology. In fact, he always tells the jury that he represents the State and is as much interested in protecting the defendant as in protecting society. He does this so that the jury will give his statements more weight than the statements of the lawyer for the defense, and this very remark gives him an advantage that is neither fair nor right.

The man on trial is almost always poor. It is only rarely that a poor man can get a competent lawyer to take his case. He is often handed over to the court for the appointment of a lawyer. The lawyer has no time or money to prepare a defense. As a rule he is a beginner not fitted for his job. If he wishes to take the case, he wants it only for the experience and advertising that it will bring. He is handed a case to experiment on, just as a medical student is handed a cadaver to dissect. If the defendant is in jail, he has little chance to prepare his case. If the defendant had any money he would not know what to do with it. He is often a mentally defective person. His friends are of the same class and can do little to help him. The jury are told that they must presume him innocent, but the accusation alone carries with it the presumption of guilt, which extends to everyone connected with the case, even to the lawyer appointed to defend him. It is almost a miracle if the defendant is not convicted.

Perhaps he is taken out to be hanged--the last act that society can do for him, or the convicted man is sent to prison for a long or shorter term. His head is shaved and he is placed in prison garb; he is carefully measured and photographed in his prison clothes, so that if he should ever get back to the world he will forever be under suspicion. Even a change of name cannot help him. While in prison he works and lives under lock and key, like a wild animal, eager to escape. On certain days he is allowed to sit at a long table with other unfortunates like himself, and visit for an hour with mother or father or wife or son or daughter or friend on the other side. Other prisoners, so far as he can associate with them, are as helpless and hopeless and rebellious as he. How they will get out, and when, are their chief concerns. Many of their guards are very humane. Probably no one seeks to torture him, but the system and the psychology are fatal. He sees almost no one who approaches him with friendship and trust and a desire to help, except his family, his closest friends and his companions in misery. He knows that the length of his term is entirely dependent upon officials whom he cannot see or make understand his case. He snatches at the slightest ray of hope. He is in despair from the beginning to the end. No prison has the trained men who, with intelligence and sympathy, should know and watch and help him in his plight. No state would spend the money necessary to employ enough attendants and aids with the learning and skill necessary to build him up. Money is freely spent on the prosecution from the beginning to the end, but no effort is made to help or save. The motto of the state is: "Millions for offense, but not one cent for reclamation."

As all things end, prison sentences are generally finished. The prisoner is given a new suit of clothes that betrays its origin and will be useless after the first rain, ten dollars in cash, and he goes out. His heredity and his hard environment have put him in. Now the state is done with him; he is free. But there is only one place to go. Like any other released animal, he takes the same heredity back to the old environment. What else can he do? His old companions are the only ones who will give him social intercourse, which he needs first of all, and the only ones who understand him. They are the only ones who will be glad to see him and help him get a job. There is only one profession for which he is better fitted after he comes out than he was before he went in, and that is a life of crime. Of course, he is a marked man and a watched man with the police. When a crime is committed and the offender is not found, the ex-convict is rounded up with others of his class to see, perchance, if he is not the offender that is wanted. He is taken to the lock-up and shown with others to the witnesses for identification. Before this, the witness may have been shown his photograph in convict clothes. Perhaps they identify him, perhaps they do not; if identified, he may be the man or he may not be. Anyhow, he has been in prison and this is against him. Whenever he comes out and wherever he goes, his record follows him as closely as his shadow. Even his friends suspect him. They suspect him even when they help him.

Such is the daily life of these unfortunates. What can be done? I can see nothing that the officers of the law can do. Officers represent the people. They reflect mob psychology. Even though an officer here and there rises above the crowd, as he sometimes does, it is of no avail. His place soon is filled by someone else. If only the public would understand! If only the public were more intelligent, which in this case at least would mean more human! If only the statement I repeat so often could be understood! There are no accidents; everything is the result of law. All phenomena are a succession of causes and effects. The criminal is the result of all that went before him and all that surrounds him. Like every other mortal, he is a subject for pity and not for hatred. If society is not safe while he is at large, he must be confined and kept under guard and observation. He must be kept until he is safe and a favorable environment found for him. If he will never be safe for society, he should never be released. He must not be humiliated, made to suffer unduly, despised or harried. He must be helped if he can be helped. This should be the second, if not the first object of his confinement.

Assuming that the scientific attitude toward crime should be accepted by those who make public opinion, and that this should become crystallized into written law, the problem would be easy.

The officers of the state can, as a rule, be depended upon to deal properly and considerately with the known insane. The insane are more trying and difficult than the criminal. Courts and juries and the public, however, recognize their mental condition and do not visit them with vengeance. It is appreciated and understood that they cannot with safety be left at large; but they are given the care and consideration that their condition demands. If the criminal should be looked upon as are the creatures insane from natural causes, the State's Attorney could then be trusted to prepare the case and do the best he could for all concerned. The defendant would no longer be a defendant. His case would be under investigation; his past life would be shown, his credits as well as his debits; he would need no lawyer, not even a public defender; no jury would be required, and the uncertainties and doubts that hang around judgments would be removed. There would be little chance for a miscarriage of justice. Even should there be, it would result in the speedy release of one against whom the public bore no ill-will. One who was sick or insane would ordinarily not need a lawyer, as the state would bear him no malice and make no effort to do more than investigate the case and present the facts. The whole matter should be a purely scientific attempt to find out the best thing to be done both for the interest of the public and the interest of the man.

No doubt, in many cases, men are convicted who are perfectly innocent of the crime of which they are accused. This is especially true with the poor who can provide for no adequate defense and who perhaps have been convicted before of some misdemeanor or crime. This is also often true in cases where there is great prejudice against the defendant, either on account of the nature of the case or of the defendant on trial. For instance, during the recent war a wave of hysteria swept over the world, and courts and juries trampled on individual rights and freely violated the spirit of laws and constitutions. The close of the war left the same intense feelings of bitterness which made justice impossible in cases where the charge savored of treason, and involved criticism of the government, or advocacy of a change of political systems.