A Plea for the Criminal.

by James Leslie Allan Kayll.

Chapter I.

INTRODUCTION.

This little book presents an appeal to society to consider its criminals with greater charity and with more intelligent compa.s.sion. No other plea is advanced than that the public mind should rid itself of all prejudices and misunderstandings, and should make an honest endeavour to understand what the criminal is, why he is a criminal and what, notwithstanding, are his chances in social life.

The criminal has a claim to be understood just as well as any other creature. It is not necessary that his sympathisers should shut their eyes to the fact that he is capable of shocking crime, that he is often an ungrateful wretch that will bite the hand that feeds him and that among his ranks are to be found the most depraved specimens of humanity that the mind can conceive. A failure to recognize these facts is actually a failure to do justice to his cause. Notwithstanding the hideous history that he may have to unfold, he does ask to be understood.

The majority of people take a most prejudiced view of the criminal's case. They will read the account of some fearful outrage or the details of a disgraceful divorce suit with absolutely no interest what ever in the persons concerned but only for the sake of the morbid satisfaction which such reading gives them. A glance at the sentence will draw forth from them the exclamation that the wretch got no more than he deserved or that he didn't get half enough. This simply indicates that society as a whole has made very little real progress in the manner in which it regards its criminals. The old barbaric idea of revenge is still the dominant one and any scheme for the betterment of the criminal, even if it should give unmistakeable signs that it will accomplish his absolute reform, is carefully investigated to see whether it provides for a sufficient degree of penal suffering. Suffering which is of an entirely penal nature, has very little deterrent value and absolutely no reformative value whatever. And yet our refined and educated men and women will read the accounts of crimes and, in their own minds, sentence the actors to five, ten, fourteen or twenty years; even death, as if criminals were so used to this sort of thing that they thought no more of it than their self-chosen judges would if deprived of a day's sport or disappointed over a ball.

"But," as an ex-member of the Justice Department said to me, "do you know what the wretch has done?" Yes, I do know what he has done, and I know him personally and well, and I know of what he is capable and such knowledge brings with it the conviction that society commits a greater crime than that which he has committed when it undertakes to punish him for his offence upon a principle of pure vengeance.

"Vengeance is mine," saith the Almighty, "I will repay." Society is not G.o.d any more than is the individual, so that by acting in the collective capacity no additional plea of justification may be advanced.

The endeavour of this book will be to show that the best interests of society are not served by the infliction of punishments which are essentially penal but by the accomplishment of the reform of the criminal. This latter process is for the criminal himself, infinitely more severe than the former, but it inflicts a pain which raises the man to a higher level; it is purgatorial, and not one which, being penal, leaves him a greater enemy to mankind than ever.

The criminal is not excused for his wrong-doing, he is not regarded as an automaton, but simply as a creature of capabilities and possibilities which require the intelligent sympathy of his fellows in order that they may be properly developed.

There are many persons who regard the reform of the criminal as an absolutely hopeless task and a waste of time to think over; they advocate his extermination. They would fling back to the Creator His own work as having, in their judgment, proved worthless, even mischievous.

Dr Chapple is astounded that the existence, or at least the birth, of defectives should be allowed. It is, he says, due in a large measure to the tide of Christian sentiment which is to-day in full flood. The Christian does at least recognize that of every defective G.o.d says, "take this child and nurse it for Me," but to speak of Christian sentiment being at its flood-tide to-day is surely not the speech of one who professes much belief in the future of Christianity.

Dr Chapple preaches a Gospel for the defective, and his banner is the skull and cross-bones! Christian sentiment when at its flood-tide will have swept away all such emblems. In replying to Dr Chapple, I have endeavoured to show that his proposal touches but the fringe of the problem, and even there after an unscientific and immoral manner. There is room for a measure of surprise that Dr Chapple should have undertaken to write his book with such a scant knowledge of the facts as they really are.

In presenting this little book to the public, the author does so with the hope that it may tend to restore the confidence in human nature that Dr Chapple has somewhat weakened, but also in some measure to inspire society towards greater collective ameliorative effort, in which our full confidence may unhesitatingly be placed. The author hopes that the criminal, a subject of patient study for the last ten years, will be seen in a somewhat new light. Criminologists declare the criminal to be seven-eighths of an average man. May society find in itself the ability and good-will to contribute the other eighth!

Small as this volume is, it has required many communications with the old world, and the author's thanks are due to many students engaged upon the study of this science in England and in the United States, and who have rendered him valuable a.s.sistance. Also, the a.s.sistance of many kind friends in New Zealand is gratefully acknowledged, and particularly that of Mr Alfred Grant, without whose aid the preparation of these sheets for the press would have been an almost impossible task.

Chapter II.

THE CRIMINAL.

The popular mind draws little or no distinction between criminals. In it there exists the idea of a criminal caste, all the members of which are prepared to commit any and every act of a criminal nature. In the popular mind, although it is just a question whether a man is bad enough to commit the greater crimes, yet thieves, violators, swindlers, forgers and murderers are all a.s.sumed to fall into the same category. In one sense they do, that is, that they are all anti-social beings, or rather they all possess certain anti-social qualities; but as soon as we proceed further we find that there exists a very great distinction in criminals. Criminals are first cla.s.sified according to the motive of their crime. This cla.s.sication ranges them under five different headings, the political criminal, the occasional criminal, the criminal of pa.s.sion, the instinctive criminal, and the habitual criminal or recidivist.

Again they are cla.s.sified, according to the nature of their crime, into thieves, robbers, violators, a.s.sa.s.sins, murderers, swindlers, etc. These again are sub-cla.s.sified, e.g., thieves are cla.s.sified as housebreakers, those who rob with violence, those who use weapons, those who rob from the person, and those who break safes. Murderers may also be cla.s.sified according to the nature of their murderous instinct, ill.u.s.trated by the instrument of destruction that they employ, whether it be the knife, firearms, poisons or other means, and again a cla.s.sification exists between those who commit murder themselves and those who employ agents.

All these cla.s.sifications are entirely different, and although some criminals may range under more than one heading, yet it is generally the case that a criminal adopts both a certain form of crime and also a particular method for carrying it into execution.

=The Political Criminal.=--This man's offence is not against morality but against the governmental inst.i.tutions of the country. He holds advanced ideas upon matters of government and upon the const.i.tution of society, and in his attempt to propagate these he becomes a political criminal. The political criminal, as distinguished from all other criminals, never commits violence, his morals may even approach perfection; but he holds "ideas," ideas which are not acceptable to the government under which he lives.

The despotic rule of the Oriental countries is most favourable to the production of the political criminal: Russia and Germany are not without their representatives. Occasionally bands of political criminals are formed, and then, in the midst of demonstrations, unpremeditated violence may be committed. The Stundists and the Young Turkish Party are examples.

=The Occasional Criminal.=--"Economic conditions are generally responsible for the production of the occasional criminal. His crime is committed in order to satisfy his present wants. In him the sensual instincts may not be stronger than usual, and the social element, though weaker than usual, need not be absent. Weakness is the chief characteristic of the occasional criminal. When circ.u.mstances are not quite favourable he succ.u.mbs to temptation." (The Criminal, p. 18.) The occasional criminal is clearly a subject for educational treatment. He needs to cultivate greater power of self-control, to strengthen his moral sense, and above all to be thoroughly equipped for the battle of life. Imprisonment will frequently ruin him and be the cause of his becoming a confirmed or habitual criminal.

=The Criminal of Pa.s.sion.=--He is generally of considerable culture and of keen moral sensibility. His crime proceeds from a sense of righteous indignation which, for the moment, completely blinds him. Personal insults cannot disturb his calm, but the sight of a child being abused or a defenceless one being attacked, will so infuriate him that he may even commit murder. Premeditation is never present, he acts under the powerful inspiration of the moment, and his crime is an isolated event quite unconnected with his conduct in general.

=The Insane Criminal=.--Insane persons who commit criminal acts, show rather a variation of insanity than of criminality. It would be more exact to describe them as "criminal lunatics" than as "insane criminals." Two cla.s.ses exist, a fact which is often overlooked, for there are both criminal-lunatics and insane-criminals. In the first case, criminality is the product of insanity, but in the second case insanity is the product of criminality. Not an hereditary product in either case, but a product resulting from a cause within the person's mental or moral self.

The p.r.o.nounced lunatic, the incapable, irresponsible person whose actions are beyond his power to understand or control, is regarded by society as a being too dangerous to be at large. Of him we do not here speak to any extent, he is too well recognized. It should always be borne in mind, however, that he commits crime because he is a lunatic, and that although his confinement is absolutely necessary, yet there is no warrant whatever that it should be made penal in character.

Although it is not possible in a work of this kind to deal largely with the subject, the writer would urge upon the notice of society and upon the special notice of jurists that there are a number of persons whose crimes should excite for them the greatest sympathy instead of, as is the case, the greatest detestation. Men there are who, perfectly sane in the ordinarily accepted sense, and who have not only a clear conception of the immorality of their conduct, but also an intense abhorrence and shame for it, find themselves performing the most revolting acts under influences that are absolutely irresistible. The sensualist has no justification, but our laws are excessively cruel in their dealings with this cla.s.s to which allusion is made. To be brief, no man charged with sadism (l.u.s.t-murder) pederasty or the related crimes, should have his case made public until a most complete diagnostic examination (including his family and personal history) has been made by competent persons.

A careful study of Krafft-Ebing's monumental work upon the subject should convince our lawyers that they could not proceed in these cases without the a.s.sistance of the alienist and of those who are experts in the diagnosis of the various forms of patho-s.e.xualism. The cases of insane criminals, that is, of the criminals whose vice is the cause of their insanity, is also divisible into two cla.s.ses. There is that uninteresting cla.s.s who on account of their irregular, immoral and excitable life become insane, and there is another cla.s.s. These latter frequently escape the penalty of their crimes. Insanity is disclosed and they have no criminal record, therefore they are discharged. It would be a nice point to decide whether and to what degree, if any, responsibility exists. To give an example not altogether uncommon--a man who will not brook opposition or hindrance of any sort. On every such occasion he cherishes most spiteful, even murderous, feelings towards his opponent. He would do him any injury, even go to the length of killing him, but he dare not.

He will storm, abuse and threaten, but he dare not go further. He is avoided by his neighbours as being a most cantankerous fellow; he is always being involved in disputes. This man is undoubtedly criminal at heart and is cherishing anti-social feelings which are steadily growing in their intensity. Revenge becomes the almost dominating influence over his mind, but it is held in check by fear. At last fear gives way and there is no further restriction to the emotion of revenge, which then becomes supreme. At this climax insanity occurs and murder is committed synchronically. Morally the act was committed years previously, and it was by his own conduct in goading himself on to the climax that made it an actual fact. Subsequently, almost immediately, he may become rational again and retain consciousness of the deed and thoroughly understands its outrageous nature. He will not then express any regrets but will declare that his deed was perfectly moral. This man is as near a monster as we dare call any man, and should never be allowed to have his liberty restored to him.

=Instinctive Criminal.=--Called also the "born criminal" (Lombroso), or the "criminal by nature." The term "instinctive criminal" seems to be that growing most in popularity, possibly because there is less likelihood of it having to be modified by the results of further investigation.

By the instinctive criminal is understood a man in whom the criminal instinct has gained a supremacy over the social instinct. He is not only anti-social in deed but also in character. (It would be a mistake to term him anti-social in nature, for that would indicate that he was absolutely hostile to humanity. One, anti-social in character, is capable of betterment, and this is possible of every man.) Many causes operate to account for his production, some of them reaching far back into his ancestry. When this is the case some physical handicap is always present, such as e.g. cerebral irritation and epilepsy.

In childhood the instinctive criminal may be recognised by an excessive vanity which will often tempt him to steal, the thefts being generally confined to articles of personal adornment or which give an occasion to "swagger." When accused he will deny the charge brought against him with an effrontery which will too often create the conviction that he is innocent. When charged he will challenge the statements of his superiors without any hesitation whatever, but at a given moment will break down and make a most free and perhaps disinterested confession. Frequently he is very emotional in behavior and simulates the deepest regret, although he is practically without any remorse whatever. He will undertake to perform the most afflicting tasks of penance in order to expiate the wrong and give every a.s.surance for future good behaviour. Neither of which is of the least value.

Onanism and a morbid love for sweets is an important characteristic. In the adult, laziness, debauchery and cowardice are to be noticed. His signature is peculiar, involved and often adorned with flourishes. He loves to be credited with the performance of great achievements, and will tatoo medals upon his body or other symbols significant of greatness. The instinctive criminal generally complains that he is unfortunate, or that he has never had a chance, and that society is always contriving to keep him down.

=The Habitual Criminal, or the Recidivist.=--When once a man has fallen into the clutches of the law and been incarcerated it is very difficult for him to keep his self-respect. His first crime may present many features to indicate that he is more the victim of circ.u.mstances than well-defined ill-will. But having been convicted, he finds himself shunned by all but criminal society, and together with other influences, educational in character, he is frequently allured into a relapse. If a prisoner endeavours to behave himself in gaol and keep aloof from evil contagion, he is bullied by his fellow-prisoners, and even his keepers regard him with suspicion. The one twit him with being a white-livered coward, the other consider him to be either a sneak or a "deep fellow."

He is almost sure to fall and identify himself with the ranks of crime.

An instance that the writer has personal knowledge of is that of a man, pa.s.sionate in nature, and moved by the tears of a young woman on behalf of her imprisoned lover, stuck up a small country gaol under arms and gained the release of the imprisoned man. To escape the consequences he had to take to the "bush," and for two years he lived the life of an outlaw. He finally surrendered to the police and was condemned to death.

As no personal injury had been committed and his manner of using his weapons shewed plainly that he did not contemplate any, his sentence was commuted to imprisonment for fourteen years, the first three to be spent in irons. At the end of that time the criminal habit was confirmed. For various offences he was sentenced at different times to periods aggregating in all to thirty years. After his last sentence had expired--six years ago--he began a new life and has not committed crime since. His whole career showed many redeeming points in it. This case is well-known to the New Zealand and Australian prison authorities.

The number of criminals who are allured into relapse is computed by Orano to be 45 per cent of the whole.

The distinction between the habitual criminal and the instinctive criminal is not merely an academical one but emphatically a practical one. Both are living the life of crime, and their acts may be, from an objective point, of exactly the same nature; but in the one case we have to deal with the criminal CHARACTER and in the other with the criminal HABIT. The distinction is first seen in the different ages at which each commences his criminal career; nextly in the different impelling causes.

Again, the emotions, ideas and methods show a distinction. All these variations are in the aggregate of considerable practical importance, especially in the a.s.signment of prisoners for reformatory treatment.

THE CRIMINAL TYPE.

Prof. Lombroso writing the introduction to Dr Arthur's "Criminology"

says:--"This point as to the type, is scarcely recognized even by the most respectable savants. The reasons for this are many: above all, there are the criminals by occasion or by pa.s.sion, who do not belong to the type and should not, for in great part it is the circ.u.mstances, and often the laws, which make them criminals and not Nature. And then some have strange ideas concerning the type."

No doubt if the acceptation of the idea of type is carried out in its complete universality, it cannot be accepted; but as I have already said in my previous writings that it is necessary to receive this idea with the same reserve which one appreciates averages in statistics.

When it is said that the average of life is 32 years, and that the month least (? most) fatal to life, is December, no one understands by this that all or almost all men should die at the age of 32 years and in the month of December; but I am not the only one to make this restriction.

In order to show this I have to cite the definition which Monsieur Topinard, himself the most inveterate of my adversaries, gives in his remarkable work "The Type," says Gratiolet, "is a synthetic expression."

"The Type," says Goethe, is "the abstract and general image" which we deduce from the observation of the common parts and from the differences. "The type of a species," adds Isidorus St. Helaire, "never appears before our eyes but is perceived only by the mind." "Human types," writes Broca, "have no real existence, they are only abstract conceptions, ideals, which come from the comparison of ethnic varieties, and are composed of an ENSEMBLE of characters common to a certain degree among themselves." I agree with these different points of view. The type is indeed an ENSEMBLE of traits, but in relation to a group which it characterises, it is also the ENSEMBLE of its most prominent traits, and those repeating themselves, whence comes a series of consequences which the anthropologist should never lose sight of either in his laboratory or in the midst of the populations of Central Africa." Manouvrier opposes Lombroso's theory and denies the existence of the type. He argues that if it exist at all it must be universal, whereas the peculiarities noted by Lombroso are present in honest as well as in criminal persons, the latter having, however, the greater proportion.

The doctrine of Fatalism seems at first sight to be bound up in the acceptance of Lombroso's theory: but such is not the case. Lombroso himself declares that the type belongs to the born criminal only, and that the born criminal can be nothing more than an epileptic; criminality being a neurosis. It would thus seem that the type was but the indication of an organic defect which physically or psychically rendered the subject unable to adapt himself to the social condition; but not that unchangeable ideas, contradicting pure morality, were innate. Lombroso goes no further than to state definitely that the type exists, and that there are very clear indications that a different type will be found to correspond with the different forms of criminality.

That the peculiarities are found also in persons living honest lives, proves nothing against his theory. For instance, there are many persons of distinctly criminal instincts who are kept in the paths of honesty merely by circ.u.mstances; and again, scientific investigation has not yet completed its work, and while certain typical peculiarities may be noted in the criminal and in the non-criminal alike, it is more than likely that the type will be found to consist in different combinations which will be discovered to exist in the criminal (not necessarily, the convict) exclusively. Or the type may consist in the peculiarities plus expression. The following typical peculiarities have been noticed by different criminologists:--