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volved in judicial administration, the court fees, and the necessity of retaining expensive counsel, which are the ordinary incidents of legal proceedings, are in numberless cases an effective barrier to the adventure of securing justice. The splendid pledge of Magna Carta, "We will neither sell nor will we deny nor will we delay right or justice," is still, after seven hundred years, "a vision of fulfilled desire." The task of painting this picture of the virtual denial of right and justice to the poor and of the cooperation of the lawyer and the social worker in overcoming the handicap and making good the proud boast of our judicial system that "the rich and the poor are equal before the law" will be adequately performed by Mr. Bradway, my colleague on this occasion.
Let me turn, then, to that phase of the question which is covered by the phrase, "the administration of criminal justice." Here the problem is not the relatively simple one of removing obstacles to the equal application of the law, but the more difficult one of altering the concepts on which the law proceeds. These concepts may be said to be three in number. The first is that the delinquent is a wilful and shameless violator of the law; the second, that his violation, in and of itself, demands punishment; the third, that such punishment of the wrongdoer is the most effective means of protecting society against similar acts of violation.
I venture to assert that the social worker takes issue with each and every one of these fundamental concepts of what we are pleased to term criminal justice. He or she regards the delinquent as an individual member of the human family who, whether through mental or physical defect or through the conditions of his upbringing, has made a failure in his adjustment to the complex conditions of social life. He has earned, not punishment, but understanding. Indeed, society, in many instances, may require his temporary or permanent segregation, but it is served best by a course of treatment which, in many other cases, may restore him to the heritage of useful living which previously had been denied him.
Holding such views as these, so widely at variance with those that prevail in the administration of the law, what can the social worker do to make them prevail?
I am putting this question as it might have presented itself in the first year of the century that now is, when the fact is that it is already by way of being answered. In the quarter-century that has since passed, the social worker, as probation officer, as psychiatrist, as social investigator, has gained a secure footing in the courts that deal with the delinquent.
The juvenile court is, of course, his great achievement, and this has been followed by morals or women's courts and by domestic relations or family courts, in all of which, sometimes only to a slight, but upon the whole to an increasing, extent, the methods of mental and social investigation are being employed and the disposition of the case made to depend on the results of such examination.
If, in the ordinary courts of criminal jurisdiction, these methods still for the most part are regarded as dangerous innovations, we have the notable example of the recorder's court of Detroit and of other courts in many American cities where individual judges, men of light and leading, have adopted similar methods. Let me give you one or two illustrations out of my own experience. Some five years ago I was invited to sit in at a weekly conference which was held by a judge of criminal jurisdiction in an eastern city. Monday was "sentence day," on which the judge in question was accustomed to make final disposition of all the cases that had resulted in conviction of the offender during the preceding week. The conference took place in the judge's chambers and continued for an hour or more before the opening of the court. On the occasion when I was present there were about a dozen cases to be disposed of. The others in attendance were the chief probation officer, a woman of the highest intelligence and professional standing, two assistant probation officers, one a man, the other a woman, and an excellent psychiatrist. There were several other people in an ante-room who were called in when the cases in which they were interested were under consideration. One of these was the wife of a man whose case was up for disposition.
Written reports on the several cases had previously been submitted to the judge and had apparently been read carefully by him. The cases were taken up one by one and submitted to the group of advisers for their opinion. In every instance the question first asked was: "Is this a case that can be handled by our probation service?" If probation was not advised, the place and the term of imprisonment were discussed. From the beginning I was made to feel myself a member of the judicial group and was encouraged to express my opinion. In only one of the cases was there any difference of opinion, that of the man whose wife was waiting outside. So she was called in and the case decided with her help. The husband was a chronic alcoholic who, while under the influence of liquor, had committed an atrocious assault. The wife had come to beg for a suspended sentence, but was led to agree that the safety of the community demanded a prison sentence.
About two years ago I found myself sitting beside the chief justice of a criminal court in a great mid-western city, at a judicial luncheon. The judge, a rather old-fashioned jurist, told me of the recent development of his court, and asked me what I thought of the probation office and psychiatric clinic that were the principal features of the development. I answered honestly but cautiously that I should suppose that these new agencies would furnish the court with information of great value with respect to the individuals brought up for sentence. His reply was, "That's just the trouble. They give the court too much information. They tie the thing up so we don't know what to do." Then he told me of a report that had been handed up to him that morning. It concerned the case of a young bandit who had been convicted a week before of robbery with a gun. The psychiatrist's report, after a lot of technical language about the culprit,
stated that he was unfit for commitment either to the state prison or the reformtory. In either place he would be a seriously disturbing influence, and neither institution had proper facilities for taking care of him nor of giving the treatment that his condition called for. The chief probation officer joined with the psychiatrist in the further opinion that the case was an unfit one for probation. The man would be sure to make further trouble. "Now, what's the court to do when it gets a report like that?" said the judge.
We must sympathize with the puzzled jurist who, as a matter of hard fact, had no alternative but to release the malefactor or to send him to prison. But the more socially minded judge previously described was in precisely the same predicament. Neither of them had been provided with institutions of a type suitable for the segregation and treatment of offenders whose social maladjustment was rooted in alcoholism, mental defect, insanity, or some other psychosis. You may say that this doesn't carry us very far toward our goal. But you must admit that we are on our way. Give us another quarter-century and I venture to say that there will be few courts of criminal jurisdiction, in our cities at least, that will not have adapted their procedure to the methods of study, understanding, and treatment of the delinquent. May I also venture the prediction that this treatment will not include the gallows nor the electric chair, nor any arbitrarily imposed sentences to a definite term of imprisonment?
Let me, at this stage, offer our tribute of admiration and gratitude to the psychiatrist for his immense contribution to this process of transformation in judicial procedure. Without him the task would, indeed, have been an impossible one. To the research of the ordinary social worker he has contributed his convincing interpretation of the subjective and external factors that determine the conduct of the individual and, in addition, has furnished new solutions of the problem of treatment. Under his influence and guidance the new types of institutions above indicated are being provided for the custody and care of those who are unfit for a free life in society, and he can be depended on to impart a therapeutic quality, which mere humanitarianism has been unable to contribute, to what we now call prison life.
Heretofore the principal contact of the social worker with the process of criminal justice has been as social investigator and probation officer. His study of the delinquent has had no aim but to determine whether the case was or was not a suitable one for probation. Aided now by the diagnosis and prognosis of the psychiatrist, we may look forward confidently not only to a more trustworthy determination of this question, but, in addition, to a greatly enlarged measure of success in the adjustment of the individual to the social environment. But the most valuable result of this continued effort certainly will be the gradual education of the judge as to the real nature of delinquency and the superior desirability of a therapeutic treatment of the delinquent. What this all comes to is that the attitude and method of the best of our juvenile courts will be extended to all our courts of criminal jurisdiction.
In the meantime the various agencies of criminal justice, the police, the public prosecutor, and the court, accurately reflecting the sentiments of the community at large, are concerned far more about crime than about the fate of the criminal. Let us leave no doubt in their minds of our sympathy with this attitude. Their abhorrence of crime and their determination to put it down are ours also. If at times we have criticized their methods, this has been due to no sentimental feeling for the criminal, but to our doubts as to the efficiency or the necessity of the methods commonly employed in dealing with him. Frankly, we we do not believe that civilization can be advanced by a slump into barbarism. But we do believe and insist that, so far as may be possible, every criminal act shall be followed by the prompt apprehension of the guilty party, and that he shall be brought without unnecessary delay to the bar of justice and there dealt with in such a way that he shall be no longer a menace to the peace and order of the community.
This being the case, why may not the social worker come into active cooperation with the civic organizations and the legal agencies that have these ends in view, such as the National Crime Commission, the local associations for criminal justice, the American Law Institute, bringing his own peculiar contribution to the solution of the problem. The aims of these organizations are altogether praiseworthy: to increase the efficiency of the police, to cleanse the office of the public prosecutor of political corruption, to raise the standard of the judicial office, to modernize and simplify our archaic legal procedure, and to give consistency and uniformity to the criminal law. If the methods which they propose are, from our point of view, defective, it is for us to suggest such improvements as our long and intimate study of social conditions has convinced us are necessary or desirable.
This, in itself, will be no mean achievement, but it is not enough. It is well to improve, or, as we are in the habit of saying, to "socialize," the court; but it is better in many cases to sidetrack the judicial process entirely. Studies of our prison population have established the fact that a very large percentage of those who have run the gauntlet of the criminal courts, possibly as high as 30 to 40 per cent, are mentally unfit to face the ordeal of a trial or to meet the ordinary responsibilities of lie. The commonwealth of Massachusetts has pointed the way to the elimination of this class from the grist of the judicial mill by a routine examination, before trial, of certain classes of persons indicted for felonious crime. Those found to be mentally diseased thereupon are committed to state hospitals for the insane without the expense and barbarity of a trial. A determined effort on the part of our psychiatrists and other social workers would doubtless soon result in the enactment of similar laws of even wider scope in all of our states.
Thus far we have found the law sufficiently flexible to accommodate its methods, however tardily and imperfectly, to the newer conceptions of conduct disclosed by the researches of the psychiatrist and the social worker. This, in
deed, is the secret of its growth: its capacity to adjust itself to the new situations of a changing social order. But the process has been, and continues to be, a slow one. Sir Edward V. Dicey, the distinguished English writer on jurisprudence, declares that the law lags from one to two generations behind public opinion. The developments to which I have referred amount, in fact, to little more than a moderate enlargement of the discretion of the court in disposing of the culprit after conviction. None of the changes so far effected have involved anything like a fundamental reconstruction in the concepts, the aims, or the methods of the law. It is still, essentially, what it has always been: a fixed body of principles elaborated and applied by a process of logical reasoning peculiar to itself; "not," as Lord Coke expressed it, "by the ordinary reason, however excellent, but by the artificial reason and judgment of the law." So powerful has this tradition proved to be that in most, if not all, of our juvenile courts the judge still feels himself bound to decide the question of the guilt or innocence of the child who comes before him charged with juvenile delinquency.
It seems almost sacrilegious to ask, Must this always be so? May not the law itself become socialized? It is, after all, a man-made thing, and by man it can be remade. Let me assure you that there are signs, increasing, hopeful signs, of a coming transformation in the spirit and methods of our legal system. The inflexibility of the law, its frequent detachment from reality, its lofty indifference to the human nature on which it operates-like Tennyson's Nature: So careful of the type it seems, So careless of the single life
-these characteristics of our legal system have long been the subject of criticism by the public. Now, for the first time in modern history, they have become a matter of serious concern to the legal profession. The leaders of the revolt (if revolt is not too strong a term) include such eminent jurists and legal thinkers as Justice Holmes, Justice Brandeis, and Justice Stone of the Supreme Court of the United States, Judge Cardozo of the New York Court of Appeals, and Dean Roscoe Pound of the Harvard Law School. The Yale Law Journal has recently published a penetrating attack on methods of legal thinking, by John Dewey. The Harvard Law School is about to enter on a comprehensive study of the relations of the law to the social conditions with which it is supposed to deal. The Columbia Law School is actually undertaking a complete reconstruction of its methods of legal education based on the study, by its faculty and students, of the economic and social relationships of the community regarded as a going concern and of the human nature whose interplay determines the character of those relationships. In such a study the validity of the legal assumptions previously mentioned, as to the responsibility of the criminal and the social adequacy of the system of legal punishments, will be tested by their results.
The importance of this new development in legal education cannot be missed by anyone who reflects that the law student of today will be the judge of twenty