x.x.xIV

LUCK AND CHANCE

Accident and luck may seem to have no place in a world of law, and yet the fate of lives rests almost entirely on what can be better cla.s.sified under this head than any other.

This is a pluralistic universe. The world is made up of an infinite number of independent machines, each having its own existence and controlled by the laws of its own being. In going its several ways and living its own life, inevitably it often clashes with others and is seriously affected by them. The fox and the rabbit both roam the woods, apparently at will, at least independently of each other. By an infinite number of circ.u.mstances, at a particular time and place, their paths cross and the fox devours the rabbit. Had they not met at the time and place, the fate of the rabbit would not have been the same. The fox would have traveled farther and eaten another rabbit or some other animal in its stead.

An engine is running on a railroad track. It makes the trip day after day without accident or disaster. An automobile is one of a million built in a far off city. Its mechanism is marvelous, and each part is dependent on the rest for its normal functioning. Some vital piece of the machine contains a flaw. How it chanced to be imperfect is another story involving endless speculation. An inherent natural defect in the ore, or a tired workman anywhere from the original smelting place to the last hand that touched it, may have been the cause; or, the reason may be still more impossible to discover. The machine is purchased and does its work perfectly for months. It is driven thousands of miles without any mishap. It is propelled along the highway and reaches the railroad track over which the engine runs. It is filled with happy people enjoying a vacation. The automobile and the engine reach the crossing at almost the same time. The automobile driver sees the engine and applies the brakes. For the first time since it left the shop, the machinery does not work. The car forges ahead and reaches the tracks just in time to be struck by the engine. The merry party meets disaster. No power could foresee the catastrophe, nor provide against the death that must result. Inevitably comes the clash of independent machines. Each human being is a separate machine. Along the road of life he meets countless others like himself. Some chance meetings are fortunate and help the journey. Some other chance meeting with a human machine, a mechanical device, an infinitesimal microbe that happened to be at the same place at the same time brings disaster or death. This is luck or chance or fate, and this really hovers over every life, controlling its course and destiny and deciding when the puppet shall be laid away!

Luck and chance are the chief of all factors that really affect man. From birth to death the human machine is called on to make endless adjustments. A child is born and starts down the road of life. He starts blindly and, for the most part, travels the whole way in the mists and clouds. On his pathway he meets an infinite number of other pilgrims going blindly like himself. From the beginning to the end, all about him and in front of him are snares and pitfalls. His brain and nervous system are filled with emotions and desires which lure him here and there. Temptations are beckoning and pa.s.sions urging him. He has no guide to show the way and no compa.s.s to direct his course. He knows that the journey will bring him to disaster in the end. He does not know the time or the nature of the last catastrophe he shall meet. Every step is taken in doubt and pain and fear. His friends and companions, through accident or disease, drop around him day by day. He cannot go back or halt or wait. He must go forward to the bitter end.

The whole journey of life is largely a question of luck. Let anyone ask himself the question how often he has escaped disaster or how often death has just pa.s.sed him by. How often has he done some act that would have led to degradation had it been known? How many hair-breadth escapes has he met? How many accidents has he had which luckily were slight but which easily might have caused his destruction?

Chance is the great element in life. Two men invest money; one gains a fortune, the other loses all. Two men are riding in a machine and it goes over a cliff; one is killed, the other escapes. The deadly germ is taken by one, it pa.s.ses the other by; or, it is taken by one when his health will make him immune, by another at the time that it will destroy his life. How many temptations to violate the law has one just missed by a lucky accident? How many times has a previous experience, education, or a friend at the right time saved him from destruction?

The imperfect man travels this road; he is poor and friendless; his life is a long series of accidents great and small. The first accident that weakens his structure makes the second more certain and so on in increasing ratio until the end. Good luck crowds around one life, while ill luck and disaster follow another's footsteps wherever he goes with the persistency of his shadow.

In all the infinite number of chances one false step may be enough to bring final disaster. All depends on the nature of the step. Every pilgrim makes innumerable false steps; often luck alone saves the situation; often luck alone compa.s.ses the destruction.

Insurance companies know just when accidents will befall the insured. If a man lives long enough he will die from a mischance. In a thousand men, a certain number will meet accident in a given time. It is just the same whether the insurance is written to be payable when a leg is cut off by a train or when money is embezzled from an employer. In either event the time can be figured out, and inevitably it will come if the time is long enough.

Neither is it necessary that the bad luck shall be great at the first misfortune. It may be but the loss of a few dollars which another could easily stand. It may be only a few days of sickness which would be of no consequence to someone else. It may be the death of a father or an uncle, while the same sort of tragedy might be the source of another's wealth. It may be some other person's hard luck which takes him from school and leaves him to follow a life of hard and constant toil. It may be that he had the bad luck not to marry the person of his choice, or it may be that he had the bad luck to marry her. It may be because he had no children; it may be because he had too many. It may well be that he has been saved from prison by dying early of tuberculosis. He may have been saved from a railroad wreck by going to jail. Infinite are the tricks of chance. Infinite are the combinations and consequences that may come from turning the cards in a single deck.

Who is the perfect one that should be willing to punish vengefully his fellow-man? Let one look honestly into his own life and pick out the important things that lead to fortune or disaster from birth onward, and say how many are the results of circ.u.mstances over which he had no control.

Where is the human being, in the presence of a dead child or a dead parent or a dead friend or in the presence of a terrible trouble, that has not sat down in sorrow and despair and again and again lived over every circ.u.mstance that led to the disaster, asking why he did not turn this way instead of that way? Why did he not stop here, or go there; why did he do this or why did he not do that? Why did he not take this short step? Why did he not think of this or think of that? If only any one of almost an infinite number of things had been done or left undone, the dead would be alive or the disaster would not have befallen. Every man who is honest with himself knows that he has been a creature of conditions and chance, or at least what is chance as far as a man can see, and what was clearly chance to him. He knows that if he has met success, he has only been more in luck than the rest. If he has intelligence and human sympathy, he feels only pity for the suffering. He would never punish in vengeance or hatred. He knows that all do the best they can, with what they have.

Enumerating some of the many causes of crime ought to be an unnecessary task. To give the number of ways men die or are killed by accident, means only that sooner or later they die, and if they had not died one way, they would have died another. It means only that a machine will inevitably give way in some part, and man may go on finding the weak spots and strengthening them forever and still the end will come. Fate does not look for a weak spot; it looks for the weakest and finds it.

Manifold causes produce crime; some men commit it from one cause: some from another. Statistics only show the number of men who commit crime from the various separate causes. In logic and philosophy it really shows that, a certain heredity placed in a certain environment, will meet obstructions and obstacles. Some heredities will carry men further, and some environments will overcome them more quickly; but as surely as effects follow from causes, every heredity will meet disaster in some way under any environment, and the time and kind of disaster it meets depend not upon perverseness or freedom of will, but upon the fortune of the meeting of heredity with the manifold environment that surrounds every life. It must be plain that life lasts only as long as it makes adjustments. That it consists only of adjustments. That, ordinarily, strong heredity and a good environment will serve the longest. That, generally, a weak heredity and a poor environment will meet disaster soonest. Life may be lengthened either by improving the heredity or the environment or both. Whatever catastrophe overtakes it and the time it falls depend not upon the will of the machine, but upon the character of the machine that starts on the journey and the road it travels. The disasters cannot in reason or justice be divided into criminal or non-criminal. They are all natural; they are each and all inevitable. Each is the inevitable destruction of a machine which could stand so much, but which could stand no more. And in each, in spite of both heredity and the general environment, the constant meeting with other machines due to pure luck and chance is a great factor, if not the chief factor, that determines the individual life.

x.x.xV

PARDONS AND PAROLES

It has always been the province of the Chief Executive of a state or nation to grant pardons or clemency to those who are confined in prison. This is largely to correct the mistakes of courts and juries and is often indulged in by presidents and governors at Christmas time. Experience shows that during the trial of a case, especially one that causes public notice and general discussion, injustice is frequently done. Often the defendant is convicted when he should have been acquitted, and still more frequently punishments are excessive and cruel. Almost never is any serious inquiry made as to the heredity and environment of the accused. Probably trial by jury has served to save many defendants where the judge would have convicted, and has still more often tempered and modified penalties. Still, juries are by no means free from the mob psychology that surrounds and affects most important and well-known cases. Jurors are generally none too intelligent and not very ready to stand against public opinion. Most men agree with the crowd. The prevailing religious opinion and the dominant political and social ideas are accepted and believed by the ordinary citizen. Social and business considerations cause most men to go with the crowd, and in any case of importance it is easy for a jury to tell the feeling of the populace. If the case has attracted much attention, the juror knows the prevailing ideas as to the guilt or innocence of the defendant. When he takes his seat in the box he almost always shares that feeling. If the case is not one he has heard of or discussed, he can easily tell by the actions and surroundings of the court room how public feeling lies. All lawyers know how readily men feel the sentiment of a court room and how much easier is the task when the sentiment is their way. Juries are also apt to have an undue regard for the opinion of the judge. In spite of the fact that it is their province to pa.s.s upon the facts, they are very watchful of all the judge says and does and are p.r.o.ne to decide a case as they believe the judge wishes it to be decided. Even when the judge is not permitted to express any opinions on the facts involved, it is difficult for him to hide his real feelings, and when his desire is strong for either side it is easy to make his opinions known.

A jury is more apt to be unbiased and independent than a court, but they very seldom stand up against strong public clamor. Judges naturally believe the defendant is guilty. They feel that the fact that an indictment has been found is a strong presumption against the accused. The judge regards himself as a part of the administration of justice and feels that it is a part of his duty to see that no guilty man escapes. Generally, in the administration of the court he is very closely connected with the state's attorney and naturally believes that the attorney would not have procured an indictment, much less pushed a trial, unless the defendant was guilty.

The whole atmosphere of the court at the time of the trial calls for a harsher and more drastic dealing with a defendant than would naturally prevail after the feeling has pa.s.sed away. For this reason, the pardoning power is given to the chief executive to correct errors or undue harshness after the legal proceedings have been finished. Often after months or years, the persons or family who have suffered at the hands of the defendant feel like reversing their judgment or extending charity, and it is not unusual that the prosecutor and judge who conducted the case ask for leniency and a mitigation of the sentence is imposed. So often is an appeal made and so frequently is it felt just to grant clemency, that this part of the duty of the chief executive has grown to be very burdensome and really impossible for him thoroughly to perform. The policy of the law is further to give a prisoner some consideration and in cases of good behavior and mitigating circ.u.mstances to release him before the expiration of his time. In most states this has called for the creating of a board of pardons and parole. The statutes fixing penalties for certain offenses provide for a reduction of a certain number of weeks or months each year, but as a rule courts take this provision into consideration and figure out the net time they wish to give the defendant so that there is no clemency except through pardon or parole.

In most states the duties of the board are very grave and its business large. With this has generally gone a law providing for the release of prisoners on parole before their sentences are finished. In these cases the prisoner is paroled to someone who promises the board to employ him, and a monthly report is to be made of his conduct for a stated length of time. He is then given conditional freedom, subject to the revocation of the parole by the board on the violation of its terms.

The administration of this power has made the parole board one of the most important, if not the most important, of any branch of the state government. The lives and well-being of thousands of prisoners are absolutely dependent on this board. Even more important are the happiness and well-being of the families of the inmates of the prison. The power and responsibilities of this board are so great that only men of the best judgment and of humane and just tendencies should be trusted with the task. It also calls for great courage such as few men on boards possess. The public generally clamors for vengeance and unfairly and unjustly criticises the board, especially when a released man violates his parole or commits another crime. This frequently happens. Perhaps on an average ten per cent of those paroled are sent back to prison before their term expires. All this makes it hard for the board to perform its duties, and makes the members of the board timid and doubtful of the result, often causing them to deny paroles in many cases where they should be given.

A great deal of criticism has been made of the parole system. Public officials and that part of the crowd that is clamorous for vengeance are always ready to a.s.sail its activities unfairly and unduly. Most professional criminals are against the parole board. Speaking of the State of Illinois, I am sure that the parole law, instead of shortening the time of imprisonment, has lengthened the terms. All lawyers in any way competent to handle the defense of a criminal case would, in the event of conviction, almost always get a shorter term for their clients from a jury or from the court, or even from the prosecutor, than from the parole board. I feel strongly that the board is too timid and unwilling to grant paroles. Still in spite of this there can be no doubt that the parole law is a step in the right direction, and it should be upheld by all who believe offenders should have a better chance. If human nature in the administration of law could be relied on; if there were some method of getting men of courage and capacity with plenty of competent aid and a.s.sistance to take charge of paroles and prisons, then the ideal sentence should be one that fixed no time whatever. It should simply leave a prisoner for study and observation until it was thought wise and safe to release him from restraint. This like all the rest could not be done with the present public att.i.tude toward criminals. So long as men subscribe to the prevailing idea of crime and punishment, no officials could stand up against public opinion in the carrying out of a new and radical theory, and even if such a board should be established, the law under which it acted would soon be repealed or the members of the board forced to resign and a new one would take its place.

In spite of the fact that the effect of parole boards has been to lengthen sentences, and in spite of my personal belief that they should be materially shortened, I am confident that the parole system should be maintained with the hope of improvement and the chance of gradually educating the public until sentences can be naturally shortened, and the care and control of prisoners be placed on a scientific and humane basis.

A board of pardons and paroles should be made up of men who are really interested in their work. They should carefully keep up with the literature on crime and punishment; they should be scientists in all matters touching their work, and they should be men of humane feelings. It is too much to expect that all of this can be found in a board for a long time to come, but with good sense and the right att.i.tude of mind the board could employ the skill that it does not now have. Every prisoner should be the subject of attention, not of spying, but of friendly interest that would inspire confidence and trust,-such an interest as a wise doctor has in a patient. This attention would in most cases gain the confidence of the prisoner and make it possible to find out how far he could be trusted, at the same time showing the treatment and environment he needed for future development. Where this confidence could not be had, safety would probably require a longer term. Most men respond to kind treatment. The criminal has so long looked on the world as his enemy, especially the official world, that he hesitates to trust anyone. Still the really sympathetic and kindly man who is honestly trying to help him will sooner or later get his confidence and cooperation. Every prisoner should understand that all of those around him are anxious to educate him so as to fit him for society and to put him in an environment where he can live. Even then there would be mistakes, and a portion of the prisoners would be so defective or imperfect that they never could be released; but under proper treatment many would be restored to a.s.sociation with their fellow-men.

It will be a long time before it will be safe to make sentences entirely indeterminate. Boards cannot be trusted to give such time and work and judgment to their task as will prevent cases of great injustice. Until such time shall come either the statutes must fix an unbending and arbitrary time which takes no account of individual cases, or it must be left with the court or jury. Clearly the jury should fix the maximum, leaving the members of the board to reduce the penalty if they deem it wise.

Most men are forgotten when they go to prison, especially if they have no active friends on the outside. No board can fully keep in mind all the inmates of a large prison. It may be that by some system their attention is automatically called to the man at certain times, but this matters very little. Someone should know he is there and why, and who he is. He should not be an abstract, but a concrete man. For these reasons, a limit should always be set on a punishment and the limit should not be too long. The idea of a tribunal, perhaps including the judge who pa.s.sed sentence, having the power and the duty imposed upon him to review sentences and reduce them if it seemed best from time to time, might have a good effect. The feelings of most men in reference to the degree of punishment change as time goes by. Always with the punishment is a strong feeling of both hate and fear. It is not possible really to punish, that is, to inflict suffering without hate or fear. The most necessary thing in preparing soldiers to fight, is to teach them to hate and fear the enemy. In the trial of a case, these feelings are fresh in the minds of the prosecutor and the judge when the case is finished, and they necessarily act more or less under the dominance of their pa.s.sions. In time these feelings fade, and a saner and kindlier judgment takes the place of the first feelings that possessed the mind.

With the parole system is going on a movement for probation. This provides that the convicted man need not be sent to prison but may be released on certain terms, sometimes requiring that money taken shall be refunded. After that he shall be placed under the supervision of some friend or agent who will report from time to time to probation officers or to the court. Probation is generally granted to young prisoners and first offenders but usually not permitted in cases that the law cla.s.sifies as the most serious.

Parole and probation are much the same in theory. In both these cases the clemency should depend much more upon the man than on the crime. It does not follow that a very serious crime shows a poorer moral fibre than a lesser one. It may well be that the seemingly slight transgressions, like stealing small amounts, picking pockets and the like, show a really weaker nature than goes with a more heroic crime. There is no such liability to repeat in homicide as there is in forgery, pocket-picking or swindling. The seriousness of a homicide is likely to make it impossible that the same man shall ever kill again. Many such men would be perfectly safe on probation or parole. But the smaller things that are easily concealed and come from an effort of the condemned to live, either without work or in a better way than his ability or training permits him to do in the hard and unfair conditions that society imposes, are often much harder to overcome. At any rate, the main question should be in regard to the man and not the crime. In cases of parole or probation, society should do what it can to help the man make good. Generally employment is necessary and a different and easier environment often indispensable. If organized society would only take the pains to make an easier environment for all the less favored, the problem would be fairly simple and most of the misery that comes from crime and prison would gradually disappear.

x.x.xVI

REMEDIES

Students of crime and punishment have never differed seriously in their conclusions. All investigations have arrived at the result that crime is due to causes; that man is either not morally responsible, or responsible only to a slight degree. All have doubted the efficacy of punishment and practically no one has accepted the common ideas that prevail as to crime, its nature, its treatment and the proper and efficient way of protecting society from the criminal.

The real question of importance is: What shall be done? Can crime be cured? If not, can it be wiped out and how? What rights have the public? What rights has the criminal? What obligations does the public owe the criminal? What duties does each citizen owe society?

It must be confessed that all these questions are more easily asked than answered. Perhaps none of them can be satisfactorily answered. It is a common obsession that every evil must have a remedy; that if it cannot be cured today, it can be tomorrow; that man is a creature of infinite possibilities and all that is needed is time and patience. Given these a perfect world will eventuate.

I am convinced that man is not a creature of infinite possibilities. I am by no means sure that he has not run his race and reached, if not pa.s.sed, the zenith of his power. I have no idea that every evil can be cured; that all trouble can be banished; that every maladjustment can be corrected or that the millennium can be reached now and here or any time or anywhere. I am not even convinced that the race can substantially improve. Perhaps here and there society can be made to run a little more smoothly; perhaps some of the chief frictions incident to life may be avoided; perhaps we can develop a little higher social order; perhaps we may get rid of some of the cruelty incident to social organization. But how?

To start with: it seems to me to be clear that there is really no such thing as crime, as the word is generally understood. Every activity of man should come under the head of "behavior." In studying crime we are merely investigating a certain kind of human behavior. Man acts in response to outside stimuli. How he acts depends on the nature, strength, and inherent character of the machine and the habits, customs, inhibitions and experiences that environment gives him. Man is in no sense the maker of himself and has no more power than any other machine to escape the law of cause and effect. He does as he must. Therefore, there is no such thing as moral responsibility in the sense in which this expression is ordinarily used. Punishment as something inflicted for the purpose of giving pain is cruelty and vengeance and nothing else. Whatever should be done to the criminal, if we have humanity and imagination, we must feel sympathy for him and consider his best good along with that of all the rest of the members of the society whose welfare is our concern.

While punishment cannot be defended, still self-defense is inherent in both individuals and society and, without arguing its justification, no one can imagine a society that will not a.s.sert it and act for its defense. This will be true regardless of whether the given society is worth preserving or not. Inherent in all life and organization is the impulse of self-preservation. Those members of society who are sufficiently "anti-social" from the standpoint of the time and place will not be tolerated unduly to disturb the rest. These, in certain instances, will be destroyed or deprived of their power to harm. If society has a right att.i.tude toward the subject, if it has imagination and sympathy and understanding, it will isolate these victims, not in anger but in pity, solely for the protection of the whole. Some there are who ask what difference it makes whether it is called punishment or not. I think that the att.i.tude of society toward the criminal makes the whole difference, and any improvement is out of the question until this att.i.tude influences and controls the whole treatment of the question of crime and punishment.

If doctors and scientists had been no wiser than lawyers, judges, legislatures and the public, the world would still be punishing imbeciles, the insane, the inferior and the sick; and treating human ailments with incantations, witchcraft, force and magic. We should still be driving devils out of the sick and into the swine.

a.s.suming then that man is governed by external conditions; that he inevitably reacts to certain stimuli; that he is affected by all the things that surround him; that his every act and manifestation is a result of law; what then must we and can we do with and for the criminal?

First of all we must abandon the idea of working his moral reformation, as the term "moral reformation" is popularly understood. As well might we cure the physically ill in that way! Man works according to his structure. He never does reform and cannot reform. As he grows older his structure changes and from increase of vitality or from decrease of vitality his habits, too, may change. He may likewise learn by experience, and through the comparing and recalling of experiences and their consequences may build up rules of conduct which will restrain him from doing certain things that he otherwise would do. Anything that increases his knowledge and adds to his experience will naturally affect his habits and will either build up or tear down inhibitions or do both, as the case may be. If he has intelligence he knows he is always the same man; that he has not reformed nor repented. He may regret that he did certain things but he knows why and how he did them and why he will not repeat them if he can avoid it. The intrinsic character of the man cannot change, for the machine is the same and will always be the same, except that it may run faster or slower with the pa.s.sing years, or it may be influenced by the habits gained from experience and life.

We must learn to appraise rightly the equipment of every child and, as far as possible, of every adult to the end that they may find an environment where they can live. It must never be forgotten that man is nothing but heredity and environment and that the heredity cannot be changed but the environment may be. In the past and present, the world has sought to adjust heredity to environment. The problem of the future in dealing with crime will be to adjust environment to heredity. To a large extent this can be done in a wholesale way. Any improved social arrangement that will make it easier for the common man to live will necessarily save a large number from crime. Perhaps if the social improvement should be great enough it would prevent the vast majority of criminal acts. Life should be made easier for the great ma.s.s from which the criminal is ever coming. As far as experience and logic can prove anything, it is certain that every improvement in environment will lessen crime.

Codes of law should be shortened and rendered simpler. It should not be expected that criminal codes will cover all human and social life. The old method of appealing to brute force and fear should gradually give place to teaching and persuading and fitting men for life. All prisons should be in the hands of experts, physicians, criminologists, biologists, and, above all, the humane. Every prisoner should be made to feel that the state is interested in his good as well as the good of the society from which he came. Sentences should be indeterminate, but the indeterminate sentence of today is often a menace to freedom and a means of great cruelty and wrong. The indeterminate sentence can only be of value in a well-equipped prison where each man is under competent observation as if he were ill in a hospital. And this should be supplemented with an honest, intelligent parole commission, fully equipped for thorough work. Until that time comes, the maximum penalty should be fixed by the jury, the parole board retaining the power to reduce the punishment or parole. No two crimes are alike. No two offenders are alike. Those who have no friends on the outside are forgotten and neglected after the prison doors have been closed upon them. Some men now are confined much too long; others not long enough. No doubt, owing to the imperfections of man, this will always be the case.