At present no penal inst.i.tutions have the equipment or management to provide against such shortcomings. They never can have it while men believe punishment is vengeance. When the public is ready to provide for the protection of society and still to recognize and heed the impulses of humanity and mercy, it will abolish all fixed terms. As well might it send a patient to a hospital for a fixed time and then discharge him, regardless of whether he is cured or not, as to confine a convict for a definite predetermined time. If the offense is one of a serious nature that endangers the public, the prisoner should not be released until by understanding or education, or age, or the proper form of treatment, it is fairly evident that he will not offend again. When the time comes, if it is the day of his incarceration, he should be released. The smallest reflection ought to teach that for many crimes, especially for many property crimes, it is hopeless to release a prisoner in an environment where he cannot survive. An environment adjusted to his heredity must be found by the state.
All indignities should be taken away from prison life. Instead the prisoner should be taught that his act was the necessary result of cause and effect and that, given his heredity and environment, he could have done no other way. He should by teaching and experience be shown where he made his mistakes, and he should be given an environment where he can live consistently with the good of those around him.
Various reforms have been urged in the treatment of criminals and in criminal procedure in the courts. Most of these impress me as possessing no fundamental value. It is often said that the accused should be given an immediate trial; that this and subsequent proceedings should not be hindered by delay; that the uncertainties of punishment furnish the criminal with the hope of escape and therefore do not give the community the benefit of the terror that comes with the certainty of punishment that could prevent crime. I can see no basis in logic or experience for this suggestion. It is based on the theory that punishment is not only a deterrent to crime, but the main deterrent. It comes from the idea that the criminal is distinct from the rest of mankind, that vengeance should be sure and speedy and that then crime would be prevented. If this were true and the only consideration to prevent crime, then the old torture chamber and the ancient prison with all its hopelessness and horror should be restored. Logic, humanity and experience would protest against this. If there is to be any permanent improvement in man and any better social order, it must come mainly from the education and humanizing of man. I am quite certain that the more the question of crime and its treatment is studied the less faith men have in punishment.
England and Continental Europe are often pointed to as examples of sure and speedy justice. The fact that there are more convictions and fewer acquittals in England in proportion to the number of trials does not prove that the English system is better than ours. It may and probably does mean that ours is better. Here the accused has more chance. There the expense, the formality, the power of the court all conspire to destroy every opportunity of escape, regardless of innocence or guilt. Even the fact that there are fewer crimes committed in England does not prove that the system is best or that it prevents crime. An old country with its life of caste lacks the freedom and equality that naturally produce defiance of rules and customs and lead to breaches of the law. Other things being equal, a greater degree of freedom leads to more violations of rules and greater resisting power among the poor than a lesser degree of freedom. It does not necessarily follow that the country is best where the people are the most obedient. Complete obedience leads to submission, to aggression and to despotism. Doubtless China has fewer crimes than England. The power of resistance is so crushed that no one thinks of defying a master, resenting an injury, violating a rule, claiming any personal rights or protesting against caste, age, or privilege.
Always there are certain men who believe that all reform in criminal procedure must come by abolishing juries and submitting every question to a court. Those who are rich and strong and the lawyers who advocate their interests are mainly arrayed on this side. The poor and rebellious, with those who naturally or otherwise advocate their cause, stand for the juries as against the courts. Those who strive to be fair are often misled from a lack of experience and little judgment of human nature. The public is always against the accused. The press is against him. The machinery of the law is against him. The dice are loaded for his conviction. Some people have childish faith in the courts. But judges are neither infinitely wise nor infinitely good; they come from the ranks of lawyers and for the most part from those who have been long engaged in defending property rights; they are generally conservative; they are not independent of public opinion; almost invariably they reflect public opinion, which means the public opinion of the community in which they live. Few of them have much knowledge of biology, of psychology, of sociology, or even of history.
One curse of our political life comes from the fact that as soon as a man has secured an office, he has his eye on another and his whole effort is to please the people, that is, the people who express themselves the most easily. Very few judges rise to a great degree of independence or defy popular clamor. A jury is less bound by public opinion; their responsibility is divided; they are not as a rule seeking office; while swayed by the crowd they are still more independent than judges and with them the common man, the accused, has a better chance.
No doubt judges are abler, better educated, more accustomed to weighing evidence and able to arrive at a more logical conclusion than most juries. Still none of these qualities necessarily leads to just findings. Questions of right and wrong are not determined by strict rules of logic. If public opinion could come to regard the criminal as it does the insane, the imbecile, or the ill, then a judicial determination would be the best. But as long as crime is regarded as moral delinquency and punishment savors of vengeance, every possible safeguard and protection must be thrown around the accused. In the settling of opinions and the pa.s.sing of judgments, mob psychology is all-powerful and really, in the last a.n.a.lysis, every human question comes down to the power of public opinion.
The first thing necessary to lessen crime and to relieve victims from the cruelty of moral judgments is a change of public opinion as to human responsibility. When scientific ideas on this important subject shall be generally accepted, all things that are possible will follow from it. Some headway has already been made in the direction of considering heredity and environment. Theoretically we no longer hold the insane responsible, and some allowance is made for children and the obviously defective. The discouraging thing is that the public is fickle and changeable, and any temporary feeling overwhelms the patient efforts of years. In the present mad crusade against crime consequent upon the Great War, penalties have been increased, new crimes created, and paroles and pardons have been made almost impossible. The public and press virtually declare that even insanity should not save the life of one who slays his fellow. Repeatedly the insane are hanged without a chance, and sentences of death are p.r.o.nounced, where before, a term of years, or life imprisonment would have been the penalty for the offense. Individual men and collections of men are ruled not by judgment but by impulse; the voice of conscience and mercy is always very weak and drowned by the hoa.r.s.e cry for vengeance.
As long as men collectively impose their will upon the individual units, they should consider that this imposition calls for intelligence, kindliness, tolerance and a large degree of sympathy and understanding. In considering the welfare of the public: the accused, his family and his friends should be included as a part. It need not be expected that all maladjustments can ever be wiped out. Organization with its close relation of individual units implies conflict. Nevertheless, the effort should be to remove all possible inducement for the violent clashing of individuals and to minimize the severity of such conflicts as are inevitable.
THE END