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 a.s.sociation 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 circle.

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.

XXIV

STIGMATA OF THE CRIMINAL

Lombroso and others have emphasized the theory that the criminal is a distinct physical type. This doctrine has been so positively a.s.serted 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 disaster.

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 a.s.say 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 a.s.signed 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 a.s.sistance 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 pa.s.sed the required physical examination. In the penitentiary, where the average age was higher, only five per cent pa.s.sed the test. In the work house-the home of the "down and outs"-only one per cent pa.s.sed. 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.

XXV

THE GOOD IN CRIMINALS

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 const.i.tuted a violation of the law, if in any way similar, or in any way connected with the one charged in the indictment. He cannot meet these charges by proving the acts of kindness and charity and real worth that are rarely absent in any life. The proceedings show how bad he is, not how good. He may be able to call witnesses to show that up to the time of the bringing of the indictment his reputation for honesty was good; but he cannot show that he supported his grandmother, or helped his aunt, or educated his younger brother, or gave his money to the poor. All the good is irrelevant to the issue. This does not prove that he did not commit the act. It might clearly prove whether on the whole he should go to jail. Through this process he feels that the law and proceedings are unfair and that he is condemned, when, in fact, he is as good as those who judge him. Neither can he show the circ.u.mstances that hedged in his way nor the equipment with which he entered life. Under the legal theory that he is "the captain of his soul," these are not material to the issue. Neither can he show the direct motive that caused the conduct. It may have been a motive that was ideal, but the question involved is, did he violate the law?

He is convicted and sent to prison. As a rule, he will some time be turned back into the world. He needs careful treatment, involving instruction and an appeal to that part of his nature which may awaken sympathies and produce emotions that will make him more of a social being on his return to the world. In the loose language of the world, it is necessary for him not only to learn how to curb the evil but how to increase the good. His imagination should be cultivated and enlarged. The responses to better sentiment should be strengthened. This can be furthered only by skilled teachers who are moved by the desire to help him. The process should be similar to a hospital treatment. Instead of this, he is usually surrounded by men of little intelligence or education, men who have no fitness for the task; he is governed by strict rules, all of them subjecting him to severe penalties when violated. Every action in the prison reminds him of his status. With the exception of a few strong men who need suffering for their development it can have but one result. He must come out from prison poorer material than when he went in. There are only two reflections that can keep him out of trouble in the future: the remembrance of the past and the fear that a similar experience might come to him again.

When it is remembered that the greatest enemy to happiness and life is fear; when we realize that the constant battle of the primitive man was with the fear that peoples the unknown with enemies and dangers; when we remember that in some way, fear of poverty, of disease, of disaster, of loss of friends and life is the ever-present enemy of us all, it is evident that nothing but harm can come from the lessons of fear that are drilled into the victim in prison. Life furnishes countless ways to be kind and helpful and social. It furnishes infinite ways to be cruel, hard and anti-social. Most of these anti-social ways are not condemned by the law. Whether the life is helpful and kindly or hard and selfish can never depend upon the response of an organism to fear, but upon the response of an organism to the kindlier and more humane and sympathetic sentiments that to some extent at least inhere in the const.i.tution of man.

It is a common thing for prisoners, even during the longest term, to be more solicitous about mother, child, wife, brother or friend than about themselves. It is common for them to deny themselves privileges, presents or favors to help other inmates. The consideration and kindness shown by unfortunates to each other are surprising to those who have no experience with this cla.s.s of men. Often to find real sympathy you must go to those who know what misery means. Pride and coldness are usually due to lack of understanding, and life alone can bring understanding. Every intelligent man engaged in efforts to improve and help either criminals or children or any others, knows the need of an appeal to what pa.s.ses as the better nature. Help does not come so much from directly inhibiting the bad as by extending the area of the higher emotions. To pull up weeds in a garden without planting something in their place is a foolish task. The human being is like the garden. Something must grow in the soil. If weeds are pulled up and nothing planted Nature will grow more weeds. Some feelings and emotions always possess every person. The best that is incident to the machine should be found and this be cultivated and extended until it dominates the man. Courts and prisons have no machinery to cultivate the best in their victims; they are always looking for the worst, aiding and promoting it until the prisoner is driven to hopelessness and despair.

XXVI

THE DEFECTIVE AND INSANE

It is almost hopeless to bring any system or order out of the chaos that prevails in the discussion of the insane, the defective, the moron, and the feeble-minded. The world has so long believed that man is a specially created animal and that he does wrong from free choice, that much more time and investigation are necessary before sane and scientific theories can be formulated on this subject.

It has been a great many years since any semi-intelligent man believed that all sorts of physical abnormalities were due to one cause and could be cured by one method, and yet the prevailing opinion now, even among the fairly educated, is that all sorts of abnormal conduct are due to one cause, perversity and wickedness, and should be treated with only one prescription, punishment. Scientific men indeed have long known that there were causes for the abnormality of conduct and that there were various more or less satisfactory remedies for many cases. Still the time that scientists have worked on the problem is short and the data imperfect, and many years of patient study will be needed before there can be worked out the broad theories of responsibility for and treatment of crime which will replace the long accepted doctrines of original sin, and the expulsion of devils from the wicked by cruelty and punishment.

By far the largest part of the population of prisons is made up of the insane, feeble-minded, morons, defectives or victims of diseases that seriously influence conduct. This is especially shown by the increased percentage of the clearly defective that are repeaters, over those in prison for their first offense. There is no lack of statistics as to the various groups of defectives, but these figures cannot be reconciled. No two authorities agree as to percentages; the cla.s.sifications are more or less uncertain; the dividing lines between the different groups are vague, one cla.s.s easily fading into another. The investigations have largely been made by those not trained for the work, and above all the conclusions as to treatment are at variance, doubtful and necessarily not yet satisfactory. That the clearly insane and the plainly feeble-minded should not be punished would doubtless be admitted by all who speak in public or write for others to read. Many persons speaking in private, acting on juries and connected with the machinery of "justice" say that these should be punished like the rest. Still for a starting point, it may be a.s.sumed that most men would agree that these cla.s.ses should be restrained rather than punished.

The chief difficulty is that between the most violently insane and the least emotional man are infinite numbers of gradations blending so closely that no one can mathematically or scientifically cla.s.sify all the various individual units. While there are cases of insanity that can be clearly traced to injury or disease, the degree of sanity in most cases is still impossible to determine. Most insane people are sane on some things, generally on most things and are sane a part or most of the time. The periods of sanity and insanity can be distinguished only by conduct. How far any specific insanity may impair the brain and affect the inhibitions, is impossible to foretell.

When it comes to the defective, the problem is still more difficult. No two persons have the same degree of intelligence. Some are clearly lacking in mentality. Others are manifestly intelligent. The great ma.s.s range all along between these extremes. Various arbitrary rules have been laid down to aid in cla.s.sifying different grades of defectives. Generally the feeble-minded can be sorted out. The defectives are supposed, if young, to be two years or more below the normal scholar in development; if older, three or more below. Their standing is fixed by asking certain test questions. Furthermore, a list of questions has been commonly used for an "intelligence test." These queries have nothing to do with the school work of the child, but are supposed to reveal only his native intelligence.

No doubt in a broad way such tests throw considerable light on the mentality of those who submit to the examination. Ordinary experience, however, shows that they cannot be fully relied on. Some children develop very slowly, others very rapidly. Some are much quicker, others slower in their perceptions and responses. No two children or grown-ups have the same turn of mind. One may be very bright in business affairs and very dull in books. One may be clever in arithmetic and hopeless in grammar. One may have marked mechanical ability and no taste for school. These tests are only valuable if given by well qualified examiners, and the method is so new that few have had the chance to thoroughly prepare for the work. For the most part the tests are given by people who are wholly unfit for so important a task.

Quite aside from all this it is not certain that intelligent people are necessarily safer to the community than stupid ones. There is always a tendency for the stupid to stick to the beaten path. Intelligence generally means individuality and divergence. On the other hand, the stupid and subnormal are moved much more directly by instincts and emotions. Their lack of imagination, poor perceptions and want of reasoning or comparing power, make their self-control weak. In sudden stress or an unusual situation, they are easily swept away and respond directly to instinct and feeling. In short the urge of the primitive through the long history of the race cannot be modified sufficiently by the new structure that civilization has built around more intelligent people.

The various distinctions between the feeble-minded and the normal must not be taken with too much confidence. As the motives that govern man are understood, it is easy to see that intelligence is a strong factor in regulating behavior. When it is seen also that at least the larger part of the inmates of prisons are subnormal and at the same time without property or education, it is evident that all these handicaps are dominating causes of conduct. This position is made still more certain by the further evidence that nearly all of the repeaters in prison are of this type.

Most states already make some allowances in their criminal codes for the defective and the insane. This is really an acknowledgment that the activity of the human machine is governed by its make and environment. The history of the treatment of the insane serves to show the uncertainty of all man's theories as to punishment and responsibility. Doubtless at a very early age in the history of man it was discovered that there were people who acted so abnormally that they could not be cla.s.sified with the great ma.s.s. Such persons were supposed to be possessed of devils or demons, and various incantations and practices were used to drive the devils out. Failing in this they were put in prison, loaded with chains or put to death because of their danger to the community.

In other communities, however, insane persons were thought to be possessed of special gifts. G.o.d had come nearer to them than to common mortals, and they were seers or prophets endowed with a portion of the divine power.

Either view of the problem is explainable by the lack of scientific or exact knowledge that marks early societies. Still these societies relied on punishments just as much as our present law-makers and enforcers, possibly more, because presumably less enlightened. Further investigation and experiences with the insane have convinced even the most casual observer that they function somewhat differently from other people; there is not the same certainty between stimulus and response. What they will do and how they will act under given conditions cannot be foretold with anything approaching the exactness that is possible with the normal.

The origin of the insanity in many cases is clearly traceable: sometimes to lesions; sometimes to illness; sometimes to the mode of life; perhaps more is due to heredity than to any other cause. At any rate in theory the civilized world has long since ceased to hold the insane criminally responsible for their acts. This applies only to the clearly insane. The border-line is impossible to find, and many cases are so difficult to cla.s.sify that there is often a doubt as to where the given patient belongs. In times when the crowd is mad with the mob psychology of hatred, people are impatient of insanity and do not care whether the accused was sane or not at the time of the commission of the act. Many insane are put to death or sentenced to long terms of punishments. Jails and other penal inst.i.tutions are constantly sorting their inmates and finding many who were clearly insane at the time their sentences began.

Society is beginning to find out that even where there is no marked insanity, many are so near idiocy that they cannot fairly be held responsible for their acts. The line here is just as vague and uncertain as with the insane. Thus far, society has not provided adequate protection for the public against this cla.s.s; neither has it properly cared for these unfortunates. It has simply excused their conduct, except in cases where some act is so shocking that it arouses special hatred, and then it freely declares that it makes no difference whether the accused is a defective or not; he is of no value to the world and should die. Many of this cla.s.s are put to death. I am inclined to think that most of those executed are either insane or serious defectives; and those who say that such people are of no value are probably right. It is perhaps equally true that few if any are of value, for when value is considered we are met with the question: "Value to whom, or for what?" All you can say of any one is that he wishes to live, and has the same inherent instincts and emotions toward life as are common to all other men.

Even the legal tests as to insanity and feeble-mindedness are neither logical nor humane. Often the definition is given by courts that if one is able to distinguish between right and wrong, he is sane within the meaning of the law. This definition of insanity is utterly unscientific. If the insane or the defective above an idiot is questioned specifically whether certain distinct things are right or wrong, he can generally give the conventional cla.s.sification. Often he can tell much better than the intelligent man, for he has been arbitrarily taught the things that are right and wrong and has not the originality or ability to inquire whether the cla.s.sification is right or how far circ.u.mstances and conditions determine right and wrong.

Conduct is ruled by emotion, and actions depend not upon whether one has learned to cla.s.sify certain conduct as right or wrong, but whether from education, life or otherwise, the thought of a certain act produces a quick and involuntary reaction against doing it. No one believes or feels that it is always really wrong to violate some statutes, and most men indulge in many practices that are wrong and repulsive but not forbidden by the criminal code.