Criminal responsibility and social constraint

Part Ii.— Freedom In Crime

VI. Statement of Opposed Views . . . . 127

VII. The Psychology of Will, Motive, and

Choice 135

VIII. The Nature of Mental Causation . . 152

IX. Conception of Freedom Synonymous with

Ignorance of Causes 177

X. Determinism Assumed in Daily Life and

in Scientific Procedure 183

XI. Concerning the "Testimony of Self- Consciousness'' ... 191

V vi CONTENTS

CHAPTEB PAQB

XII. Freedom as Absence of External Constraint 202

XIII. Character and Environment .... 210

XIV. Determinism Not Essentially Material-

istic OR Fatalistic 219

XV. Reward and Punishment 228

XVI. The Nature of Laws 239

XVII. Transcendental Freedom 258

Part Iii.— Responsibility For Crime

XVIII. Early Extremes and Present Practices 261

XIX. Arguments for Complete Irresponsibility OF All Criminals 271

XX. Contrast of Moral Considerations and

Social Expediency 290

XXL Assertion of the Criminal's Social Responsibility 296

XXII. The Basis of Personal Accountability 310

XXIII. The Basis of Social Constraint . . . 322

XXIV. Practical Procedures. Conclusion . . 333

AND

SOCIAL CONSTRAINT

Part I The Aim Of Punishment

INTRODUCTION

Among the most expensive functions of government is that which is concerned with the detection, arrest, trial, and punishment of criminals. The expenditures in connection with police, courts, and prisons exceed in amount the outlay for the conservation and improvement of health, the necessities and conveniences of travel and intercourse, highways, parks, and playgrounds, and about equal the costs of education/

When any one begins to philosophize about the raison d^etre of this enormously expensive arrangement for dealing with crime and criminals, he naturally asks first for its purpose — What is the object of it all? What kind of return does this investment bring in? Society has schools for the ignorant. It has accident stations, ambulance corps, dispensaries, and hospitals for the injured and diseased. It has special educational institutions for the feeble-minded, the blind, the deaf, and the dumb. It has homes for the aged, the infirm, and the incapacitated.

* Cy. Spalding, "The Money Cost of Crime," in Journal of the American Institute of Criminal Law and Criminology, May, 1910, pp. 86-102; and Eugene Smith, "The Cost of Crime," in Proceedings of the Annual Congress of the National Prison Association, 1900, pp. 308 ff,

I

It has asylums and hospitals for the epileptic and the insane. But for the criminals, society has detectives, bureaus of criminal identification, police, judges, jailers, and executioners — houses of correction, penal colonies, jails, penitentiaries^ the gallows, and the electric chair. What is the ground for the difference in treatment that is accorded to this last class?

Society has been treating criminals in very definite ways for quite a long time, and has been to almost infinite pains and expense to treat them precisely so. Hence it is perfectly reasonable to suppose that society must have some very specific reason for such methods. Perhaps the reason is so clear that any and every man could state it in few words. Let us make the experiment, and ask of a few men what object society has in view in its dealings with the criminal.

The lawyer replies that punishment is to compensate for damage, and to prevent further damage. The sociologist says that it is to restore the social equilibrium that has been disturbed, and to prevent further disturbance. The psychologist maintains that it is to work on the memory and imagination both of the person punished and of others who may learn of it, so that the crime may not be repeated. The moralist holds that it is to make the culprit see the error of his way, and to awaken his feelings of remorse and penitence, so that he may be converted into a good man. The priest declares that it is to expiate for sin, to make atonement to the moral governor of the universe through the sufferings of the guilty sinner. The physician says that it is to eradicate a plague-spot in the mind of the criminal, to prevent further spreading of the plague and the risk of social infection. The eugenist believes it a means of purifying the human race and of creating and maintaining the best social type, by rooting out the elements that have degenerated. The policeman affirms that it is to instil in the minds of the person punished and others who see his example a proper fear of those persons who make and enforce the laws. The soldier regards it as a public rejoicing over an enemy of the general interest, peace, and authority, who is at last overcome and mocked. The criminal himself considers it a fee stipulated by the power which protects the evil-doer against excess of revenge from the person injured — a compromise which society accomplishes between the right of the person injured to take revenge and the right of the wrongdoer for social protection. The injured person looks on it as a payment by the injurer to the injured in some form or other, most frequently in the form of gratified feeling at seeing the damage-doer suffer in his turn.

These examples are enough to show how diverse are the opinions and how vague is the general idea concerning the specific object of punishment. There seems no general agreement as to whether punishment is retrospective or prospective — whether it is intended to requite the past or to mould the future.

If it be thought that the vagueness and diversity in these answers are due to the fact that we did not consult especially the experts whose chief concern is with punishment, a little investigation will show that this is not the case. Our legal statutes are indeed far removed from casual human sentiment. They are elevated above the whims, prejudices, and crude opinions of individuals. The law is supposed to have a definite purpose back of its prescriptions. But the learned doctors of the law really differ among themselves on this point as radically and fundamentally as do any other persons. A careful observer is soon forced to realize that the theories of criminal punishment current among our judges and legislators have assumed neither a coherent nor a stable form, and that the corresponding practical applications of punishment must be regarded as experimental and transitional.

This diversity and vagueness are to be accounted for by the fact that punishment is not a specially manufactured instrument, designed for a certain purpose, but is a complex social growth, having persisted through the changes of ages, places, and races. For thousands of years it has been developing, gathering accretions in some parts, undergoing dissolution in other parts, and all the while becoming more and more heterogeneous though more and more closely integrated.

Nevertheless, like all other social phenomena, it is subject to approach by science and philosophy. Science may investigate its origin and development, its place and functions in social life. Philosophy may consider its rationality, its right to continue in existence and to be consciously employed by society to accomplish its deliberate intentions. Now that human societies have become self-conscious and selfgoverning, their actions are in part at least subject to the control and direction of ideas. If a society conceives the notion that social punishment should never be designed to accomplish a certain purpose — to expiate religious sin, for example — then the cessation of punishment for that reason is sure to result as fast as the inertia of long-fixed social habits may be overcome.

All the variations in the object of punishment may be reduced to four fundamental types — expiation, retribution, deterrence, and reformation. The first part of this book will be devoted to a scientific weighing of the social merits and demerits of these ideas. Any prejudices derived from religious or moral partisanship should be absolutely discarded. The investigation should be directed by a wholly scientific mind and by purely social considerations.

Chapter I Punishment For Expiation

1. Statement of Theory

We are now to undertake a search for a satisfactory purpose in punishment. It would be well to have in mind from the start a precise understanding of what punishment is. It is definite suffering inflicted by, or in the name of, society upon an offending member. The intentional infliction of pain is an essential element. Treatment of the criminal by means of hypnotism, drugs, baths, and massage could not be called punishment.

The first view which we are to consider is that which regards the object of punitive treatment as the expiation of moral wrong or religious sin. This view may be summarized in a few paragraphs.

The moral order has been injured by the crime, and suffering on the part of the wrongdoer is the means of expiating the fault. The violated sanctity of the moral law can be repaired only through chastisement of the violator. The ''ethical balance'^ or "moral equilibrium'' of the universe has been disturbed by the act of the criminal, and can be restored only through his suffering. "Punishment is, in its essence, a rectification of the moral order of which crime is the notorious breach."^ Or, in

» Seth, "Ethical Principles," p. 317. 6

HegePs words, ''Wrong negatives right, but wrong negatives the negation." * Just human punishment avenges wrongs against the moral law, not from feelings of human vindictiveness, but as representing that which is the foundation of the universe. The moral law which the criminal has outraged asserts itself against him, to make him realize that he has done wrong, and to expiate his offence.

The general feeling of right and justice has been disturbed by the wrong, and can be set at rest only by the knowledge that the merited punishment has been received. Everywhere must exist an active consciousness and realization that guilt is an evil which reacts upon the guilty. Suffering expiates guilt — that is, it satisfies the general moral consciousness of mankind. The sinful individual will has offended against the righteous universal will; it is necessary, in the very nature of the moral universe, that expiation be made and bear a quantitative correspondence with the guilt — the greater the guilt, the greater the suffering.

That punishment must be, above all else, an expiation for past fault is proved by society^s minute precautions to apportion the penalty as exactly as possible to the gravity of the crime. This endeavor is explicable only on the principle that the culpable ought to suffer because of, and in proportion to, his wrong. Considered in itself, that is, entirely apart from social interests and- usefulness, punishment of wrong is just. Its justice consists in the fact that there is in the very nature of the moral universe a necessary relation between guilt and pain. The

^ Hegel, "Naturrecht," §§ 90 ff.

guiding principle is that offences should be punished according to the badness of character they imply. This is the explanation why the poisoner is dealt with more severely than the adulterator — the harmful social effects of the adulteration may be more widespread and detrimental, but the character of the poisoner is the more heinous. The builder of unsafe bridges and the insurer of dangerous houses may cause greater social damage than the assassin, but they are adjudged morally superior to him and are subjected to milder penalty. The ravisher shows greater moral depravity than the professional enticer of maidens, although the amount of social injury may be less, hence his treatment is the more stern. The death penalty cannot be explained on the basis of being intended for the criminal's reformation— it is a testimony in favor of the view that punishment is to give the offender what he deserves for having violated the sanctity and majesty of the law. What is achieved may be simply and solely the actual suffering. This shows that it was a medium to expiate guilt. ^'By his suffering he expiates his wrong, and appeases the rightful indignation of the law which he has transgressed. '' ^

Crime is primarily and essentially an offence against God, who demands the chastisement of the offender as the appropriate expiation. The fundamental aim of punitive dealing is moral atonement. The criminal is made to undergo suffering out of the recognition of the obligation to expiatory sacrifice to the injured sanctity of the divine law. The function of the worldly authorities, deriving their sanc-

* Alexander, "Moral Order and Progress," p. 332.

tion and their power from on high, is to adjust suffering to sin. The criminal is, from the rehgious point of view, a being impure, unclean^ wicked, sinful, a moral leper. The punishment imposed upon him is to be regarded in the character of a penance imposed by a priest of God, in order to make expiation and atonement. It is absolutely necessary and reasonable. To deal with a physical leper in the same way as with a healthy person would be absurd; similarly, it would be unreasonable to treat a sacrilegious and morally tainted person like one whose heart and hands are pure.

God, in his absolute justice, cannot allow one guilty sinner to escape; else his authority would crumble; his subjects would see that his rule was based on favoritism and partiality; and revolt would shake to its foundations the firmament of heaven and earth. If the moral governor of the universe should permit one wrong act to go unpunished and unexpiated, then the whole moral universe would tumble to pieces, and the world would become the abode of demons. The divine law and authority can be upheld only through punishing the guilty.

Human law is, or should be, but a replica of the divine law. Hence human punishments can have no higher or different aim than that of upholding the sanctity of the divine law, and of seeing to it that when this has been violated by crime and sin the violation shall be expiated by the suffering of the guilty.

2. Objections to Theory

To administer punishment for the object of expiating moral or religious guilt is an impossible task. The principle that the penalty inflicted on the criminal must be made proportional to the wickedness of his character cannot be accomplished by human administrators of justice. They would have to penetrate into the will and measure its badness in order to know how much pain to inflict as an offset. But the thoughts of man are not open to other men. What judge is able to inspect the heart and to estimate the amount of moral depravity there, and is entitled to speak in the name of God and say that a certain amount of suffering is due as expiation? He would have to be able to foreknow the inward feelings of each individual prisoner throughout the whole period of his imprisonment, and to determine in advance what length of time in prison would be exactly a sufl&ciency of pain to satisfy, for atonement, the offence which had been experienced by God. Civil punishments cannot be meted out as God^s justice. Legal penalties must be concerned only with the social significance of acts, motives, and dispositions. They must have no concern with the intrinsic or extrasocial qualities, such as the moral and religious character of the heart. The state must not punish the criminal for immoral or irreligious deeds, as such, but for anti-social deeds. Legislators and judges must not regard themselves as adjusters of the derangements in the moral order, but as guardians of the social well-being. Punishment must be considered as administered, not to '^a moral and religious reprobate/' but to a social damage-doer — an incendiary, a forger, a burglar, an assassin.

This theory maintains that the crime which implies the greatest moral depravity should be visited with the punishment that involves most pain to the sufferer. But no tribunal is capable of making the pain of punishment proportionate in each case to the depravity of the crime. In the first place, the degree of moral turpitude in an act is unascertainable. It depends on motives and on the general character of the agent. No one can calculate exactly the moral quality of his own acts. Much less can a judge or jury measure the moral value of an act of an unknown criminal. In the second place, no punishing authority can regulate the amount of pain caused to the culprit. The degree of suffering experienced in a particular case depends upon the temperament and circumstances of the person, which cannot be ascertained. Still further, this theory entertains a false view of the relation of the state to morality, implying that it is the business of the state to punish wickedness, as such. But the state has no such business. It has no concern with the moral depravity of the criminal. It can punish only in its capacity as the sustainer of social rights. Punishment is founded essentially on the relation of a man's conduct to the security and freedom of other members of society. Its kind and amount are determined by considerations which are prospective rather than retrospective. It cannot undo the harm that has been done, but it can make less likely a repetition of the injury. Its object.

therefore, is to make the criminal suffer, not for the sake of the suffering, but in order to associate such terror with the contemplation of the crime, either by himself or others, that the terror will restrain from the crime. There is no reference to moral good or evil. The state in its punitive dealings with criminals looks not to individual virtue and vice but to social rights and wrongs. It aims to protect society. This object is in the main attainable; but the object of making the pain of punishment commensurate with the guilt of the criminal is not attainable.^

In man there is a tenacious sentiment, making it psychologically impossible for him to rest content with virtue unrewarded and vice unpunished. Man is moral by nature ; he will not believe that the last word is to be with the bad, and that evil and injustice are to triumph over good. But we need to realize that this sentiment has a purely social and earthly origin, development, and utility. Man's nature is such as has been furnished him by heredity and environment, evolution and natural necessity. His system of punishment has been developed under the necessities of social life and intercourse. It should be recognized for what it is, a purely human institution and instrument. It should not be regarded as of use in the service and worship of the gods.

Punishment for expiation alone is without any social utility, and, being administered out of regard for the past, is futile. It cannot make the

^ C/. T. H. Green, "Principles of Political Obligation/' "Works," yol 11, paragraphs 192, 193, 196, 197, 204.

past any different, or cause that what has happened shall not have happened. Just punishment must be administered out of regard for the future.

Evil cannot be expiated with evil. We cannot neutralize one ill by the addition of another. For people to be morally bad is enough of evil without the addition of physical pain. Inflicting suffering for the suffering's sake is a mere triumphing over wrong by wrong, though in the name of good. Any pain inflicted by society which is not an act of good-will and intended to do good is blameworthy. At the basis of the view which regards the object of penalty as expiation there lies a demand for the suffering of the victim — not for the sake of the feelings of the avenger, not for the sake of protecting society from harm, not for the sake of bettering the sufferer, but solely in order that suffering may exist for its own sake. The single point of view is that he who does wrong deserves to suffer for it. The whole collection of these old views should be thrown away together— free wickedness, the social demerit of personal badness, and punishment as expiation.

Kant's doctrine that punishment is ^Hhe logically necessary consequence of wrong/' and "is demanded by the categorical imperative," is empty formalism, and must be rejected by all who maintain that a law is valid, not because it is a "formal" imperative, but because it has a "content" of empirical good. Similarly, no real meaning can be given to Hegel's dictum that "wrong negatives right, but punishment negatives the negation." How can punishment affect the past and make naught what has been? If his dictum does not mean this, does it mean simply that ''even if wrong did happen, it ought not to have happened ''? Is society arresting, fining, imprisoning, hanging, and electrocuting criminals simply in order to illustrate such a tautologous statement? Carried out to its logical conclusion, this view maintains that punishment would be just even though it had absolutely no social effect, and could have none, in the very nature of things. But let us exercise a little common-sense and realize that thieves would not be lodged in jails and penitentiaries if that did not prevent them from stealing and deter others from theft. Society would not go through the enormous expense of building and maintaining prisons if the existence of such institutions had no influence upon the commission of crime. It would not inflict punishment for the sake of ''manifesting and abrogating the wrong that has been done." ^

In determining punishment we simply cannot fix our attention upon how much suffering is the rightful equivalent for the badness of character that has been revealed, and neglect the question concerning the effects of the treatment. Science is to ascertain, not how many days or years in jail "ought" to be imposed as the expiation for the wrong done, but the kind and amount of penalty requisite to prevent crime and protect society. Our legislators and judges are not called on to decide what suffering will "make manifest the wrong" and "satisfy the idea of the right." They are to determine what punishment will hinder crime and work for the good of society. "Justice" is, and must perforce be, a social term; and there is no justice in the infliction

» Cf. Paulsen, "System der Ethik," Bd. I, S. 145-147.

of suffering for no social purpose. No social justification can be found for the view which holds that 'Hhere is a natural affinity between the two ideas of guilt and punishment, which makes it intrinsically fitting that wherever there has been wrong pain should be inflicted by way of expiation.''

None of the advocates of the expiation theory of punishment would admit that the diverse faculties of man are linked together, so that the will may be regarded as the product of the sensibility. Now since, in their opinion, the sensibility is not the real centre of the human being, it is difficult to comprehend why they would hold it responsible for the badness of the will. If the will has freely chosen wrong-doing, it is not the fault of the sensibility. To add a physical evil to the moral evil, under pretext of expiation, is only doubling the sum of evil without remedying it at all. Without the justification of social necessity, punishment would be as blamable as crime; and legislators and judges, in striking the culpable, would be their equals. When abstraction is made of its social utility, what difference is there between murder conmiitted by the assassin and murder committed by the sheriff? The latter has not even the justification of personal interest or vengeance. The legal murder would be more absurd than the illegal murder. It is impossible to see in ^^expiation" a sanction which is at all a rational consequence of crime.

When one speaks of ^Hhe moral order" as having been 'troubled by a rebellious will,'' and as needing to be re-established by the suffering of the rebel, one is entirely outside of the social question and the proper sphere of social punishment. But looking at the matter a moment ourselves from this extrasocial point of view, we remark that it is repugnant to say that moral wrong can be repaired by bodily pain, and that the price of a morally wrong act can be paid with a certain amount of physical suffering — a purchase of ^' indulgences," as it were. No, the moral evil remains, in spite of any physical pain which can be added to it.

According to the champions of the expiation theory, moral evil is a sin of the free-will, altogether undetermined by the sensibility. It is as if one pan of a balance-scale were in the moral world, the other in the world of sense. In the one is the free-will; in the other is the sensibility. When the balance is disturbed by the wrong act of the free-will, the addition of suffering to the sensibility is expected to restore the equilibrium. But if the will is free, it cannot be seized or punished, it remains altogether unaffected by the suffering of the sensibility. It can be punished only if it wills to punish itself, for its badness. It can do this only in case it has already so profoundly changed for the better that it no longer deserves to be punished. Suffering cannot make expiation for wrong-doing unless it is selfinflicted and recognized by the agent as merited. This cannot be caused externally. A man may be overwhelmed with punishment and still regard it as an accidental misfortune and not as a desert. This is the antinomy of the expiation theory. As long as the sinful free-will remains sinful, it is beyond punishment and expiation. Before it can be punished and made to expiate its fault, it has to convert itself; and after conversion, why should it be punished? The free and sinful will is beyond the reach of punishment and beyond the possibility of a forced expiation. It is irrational cruelty when suffering is inflicted upon the innocent body of the victim; the guilty will remains unpunished and unpunishable/ Expiation simply cannot be the object of punishment in those cases where the law diverges from ethics, as when it refuses to punish the mere intention to commit a crime, and punishes but slightly, if at all, the attempt to commit a crime. 'Tublic opinion will sanction capital punishment when the blood of a brother man seems to cry for vengeance from the ground; it would not tolerate an execution for an attempted murder which has failed through a pistol missing fire/' ^ But in intention and attempt the moral guilt may be just as great as if the wicked scheme had not happened to become frustrated. ^^In ethics, of course, [a vicious will] would of itself suffice to constitute guilt. . . . But there is no such searching severity in the rules of law. They, whether civil or even criminal, never inflict penalties upon mere internal feeling, when it has produced no result in external conduct. So a merely mental condition is practically never made a crime. If a man takes an umbrella from a stand at his club, meaning to steal it, but finds that it is his own, he commits no crime." ^ Looked at from the moral

^ Cf. Guyau, "Esquisse d'une morale sans obligation ni sanction," pp. 190-192.

2 Rashdall, "The Theory of Punishment," in International Journal of Ethics, vol. II, p. 26.

3 Kenny, "Outlines of Criminal Law," revised American edition, 1907, pp. 33-34.

stand-point, his intention is wicked, and may be said to need expiation through suffering. But it would be socially inexpedient and unjust to punish him. This shows that punishment is not for expiation.

That punitive affliction is aimed at social protection and not at expiation of moral iniquity is shown also by the fact that the decrees of the law sometimes differ greatly from the rules of ethics. The legal code often refuses to go with the ethical code. The state sees no social harm in some of the personal vices which moral sentiment condemns, and hence would regard it as unjust to inflict penal suffering. On the other hand, the legal code often passes beyond the moral code. The insight of the social legislators discerns evils and dangers to the general welfare not yet perceived by the common consciousness. New inventions and modern exigencies of travel and intercourse sometimes render customary forms of conduct harmful to society. Then these ways of acting are made crimes before they have had time to become wrong or sinful; and fine or imprisonment is visited upon offences which bring neither moral blame nor social shame; for example, driving on the one side of the street instead of on the other, killing game out of season, getting on or off cars while in motion. If the object of punitive treatment were expiation, it would be wrong for society to punish a person who damages it without moral guilt.

Let any one who thinks that punishment is not sufficiently justified by its being inflicted for the protection of social rights attempt to reconcile his sense of justice with the punishment of crimes committed in obedience to a perverted conscience. Many fanatical murderers have been executed^ who regarded themselves, not as criminals, but as heroic martyrs. Were they rightly put to death? If so, the justice of their punishment had nothing to do with the expiation of badness in their minds and hearts. Their outrage of the social obligation to respect life was solely an act of self-sacrifice to what was considered a higher and more sacred obligation. They regarded their acts as possessed of subhme virtue. Out of supposed duty to God or to humanity fanatics have been guilty of the most abominable deeds, such as the assassination of rulers or the slaying of supposedly heretical enemies of God. Their punishment cannot have been justified as an expiation for internal demerit, a sinful state of mind, moral and religious guilt. Punishment for crimes of moral and religious fanaticism can be justified on no other ground than its necessity for the attainment of social ends.^