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not done in our best-regulated prisons; but it is not obsolete for all that, and even worse treatment of convicts persists in prison camps in some parts of the South, much as human sacrifice persisted in backward parts of Greece when fifth-century Athens had become so refined as to capitally execute by proffering to the condemned the poison cup of hemlock. The state has a responsibility to the criminal as well as to the rest of society, and that responsibility includes the obligation, when it imprisons a man as punishment, not only of refraining from brutal treatment, not only of providing proper food, not only of providing a decent and sanitary place of imprisonment which shall not undermine the health, but also of prescribing such treatment and training as shall be educational in the broadest sense, which shall be calculated to build up desirable habits, physical and mental, and further, of furnishing such emotional stimuli as shall enable the prisoner to live something approaching the life of a normal human being. This is not "coddling" the criminal; it is merely using common sense as to his treatment. Here is the point, in my judgment, for the application of individual methods: not individualization of punishment, but individualization of reformatory methods in the prison.
If the deterrent theory has not had a fair chance to show what it can do because not consistently applied, certainly the same can be said as to the newer methods of penal treatment, for nowhere have they been fully carried out as intended. I take as an example the indeterminate sentence and parole system to which I happen to have given special attention. This system was planned as an element of a reformatory plan of treatment of the convict which embraced as essential a proper prison plant; a system of treatment in the prison in the way of training, education, work, and recreation calculated to build up normal physical and mental habits; parole of those intelligently selected on the basis of their performance under this treatment; oversight and assistance of the paroled man outside the prison to enable him to establish proper contacts; final discharge granted on the basis of his record on parole, and the indeterminate sentence as an adjunct, furnishing reasonable opportunity for the application of this system of treatment. Parole had been developed by practical experience, while the reformatory treatment was largely theoretical and the indeterminate sentence, entirely so. The system was first put into operation at the new Elmira reformatory, where a fair approach to all the essentials was provided. In the initial spread of the system it was copied in its entirety, but soon the enthusiasm for the establishment of reformatories began to wane. The advantage of the system from the practical standpoint of prison administration in its favorable effect on prison discipline and the possibility of reduction of prison population led to its adoption for convicts in the penitentiaries and state prisons, but with little, if any, provision for reformatory treatment in the prison. Often too scant provision was made for oversight of the paroled man by personal contact through parole officers. Sometimes, instead of personal supervision by parole officers, the paroled man is turned loose with merely the obligation to
report by letter to the warden of the prison. Thus emasculated, it is small wonder if the plan has not accomplished all that was hoped from it. If in the mutilated and imperfect form in which it has been usually applied it has been productive of good at all there would seem to be great possibilities in its proper development. There is a popular idea that prisoners serve a shorter time under the indeterminate sentence and parole system than under the old definite-sentence system. This is probably not true where the system is properly administered, A comparison of the average time served by prisoners at the Joliet prison in Illinois for the three crimes of burglary, larceny, and robbery, for the fiveyear period from 1890 to 1894 under the definite sentence and from 1916 to 1920 under the indeterminate sentence, shows that under the definite sentence the average time served was one year, nine months, and six days, and under the indeterminate sentence it was two years, six months, and four days. In Minnesota a comparison has been made between the average time served in the last fifty cases under the definite sentence and the first fifty under the indeterminate sentence for the crimes of grand larceny and assault in the second degree. In the case of grand larceny the average time served under the definite sentence was one year, four months, and thirteen days, and under the indeterminate sentence, two years, eight months and twenty-two days; and in the case of assault under the definite sentence it was one year, seven months, and seven days, and under the indeterminate sentence, two years five months, and three days. This would indicate that where the parole system is carefully administered the prisoners remain in detention a longer time on the average under the indeterminate than under the definite sentence. There is no doubt, however, that the criticism that prisoners are as a rule paroled at the expiration of their minimum sentences if their conduct has been good has sometimes been justified. The 1916 Annual Report of the Prison Association of New York stated that 91 per cent of the persons then on parole from the state prisons of New York had been released within one month of the expiration of their minimum sentences. The Report of the Prison Inquiry Commission of New Jersey, in 1917, said: "In actual practice parole is granted as a matter of course at the expiration of the minimum term, except in those cases in which the applicant has had his minimum term extended as a penalty for misconduct in prison." But such results are due, not to the parole system itself, but to defective machinery or defective functioning of the machinery provided to operate the system. The remedy lies, not in abolition or curtailment of the system, but in the improvement of parole methods.
Another class of criticisms commonly made relates to the procedure of courts in criminal cases. We are told that our court procedure is archaic and ineffective, overtechnical, and productive of delays which defeat the purpose of the criminal law. We are told that a procedure which was adequate for a rural community of a hundred years ago is of no use in urban industrial America of today. Personally, I have never been able to understand why it should be necessary to try a farmer by one method and a factory worker by another, or why
there should be any different method of court procedure in a city than in the country. In any event the procedure of our criminal courts today is not what it was a hundred years ago, and certainly it is now almost wholly the creation of statute. The greater part of the defects complained of are the result of statutory changes, ill-considered and ill-adapted to the function they are supposed to perform. As examples I may cite the drastic limitations of the common-law powers of the trial judge, imposed by statute in many American jurisdictions, which has been especially harmful in criminal trials, and the so-called simplification of pleading, which, by destroying that part of the function of pleading designed to narrow down the issues of fact to be determined by the jury, has thrown upon the jury system a burden it was never intended to bear. The latter so-called "reform," however, is not so detrimental in criminal as in civil cases. Doubtless there is possibility of improvement in criminal procedure; but consider for a moment the sudden strain thrown upon the machinery of the criminal courts by the adoption of the prohibition statutes.
The Report of the Attorney-General of the United States for 1922 shows that of a total of 60,722 new criminal cases brought during the preceding twelve months in the United States courts, 34,984 were for violations of the prohibition act; 22,749 convictions for prohibition violations were obtained during the year out of a total of 28,743 such cases terminated, leaving pending 10,472 cases. The Attorney-General's report of 1925 shows that the number of pending cases had increased to 25,334 on June 30, 1925; 51,688 new cases were filed during the preceding twelve months, and 48,734 cases terminated, out of which there were 39,072 convictions. That this vast number of an entirely new class of crimes was handled at all, and especially with so high a percentage of convictions, conclusively demonstrates, it seems to me, that our criminal procedure is not nearly so sick as it has sometimes been painted..
While all these criticisms, then, have some basis, we cannot accept them at face value nor can we ascertain to what extent they are valid without careful analysis. Indeed, the well-nigh universal impression of a great increase in crime itself may well be open to question. We must say at the outset of considering this matter that a demonstrably certain answer to it is impossible. Neither accurate nor comprehensive statistics of crime are obtainable anywhere, and not even an attempt has been made to collect country-wide information as to any crime except homicide. All our discussions pro and con are necessarily based on such scraps of information as we are able to collect, but we are, after all, absolutely without real knowledge. It is no wonder that ideas are so conflicting and that legislation is so often ill-considered and impractical. We would not attempt to solve any problem of business without first ascertaining the facts, but we are content to continue to attempt to deal with crime without adequate facts on which to base our conclusions. It is apparent that only governmental provision can secure the uniform country-wide and accurate information that is necessary. The chairman of the criminal law section of the American Bar Association
last September, after a survey of the figures from what he termed "the grab-bag sources which alone are available," concluded that:
Homicide, in the United States, alarming as the total is, shows an average annual decrease. Increases are recorded among the colored population and in many of the larger cities. The aggregate of other crimes has materially increased, due partly to increase of holdups and banditry, and due largely to increase in traffic-law violations, liquor offenses, and a mass of new crimes. Old-fashioned crimes such as burglary, larceny, from the meager statistics available, seem to show little increase.
In a recent study Dr. Ellen C. Potter, secretary of welfare of Pennsylvania, concluded that for the United States as a whole from 1910 to 1923 there was a decrease in commitments for crime, in proportion to the population, of 37.7 per cent; that in Pennsylvania from 1875 to 1924 commitments to all prisons increased 81.2 per cent, while the population of the state increased 119 per cent, showing a decrease of commitments in proportion to population of 39 per cent. She further concluded that convictions in the criminal courts of Pennsylvania in relation to charges made have increased from 17.8 per cent in 1875 to 51.3 per cent in 1924, apparently indicating that our criminal procedure in Pennsylvania is more effective now than it was fifty years ago.
There are manifestly certain conditions which make crime of certain kinds easier to commit nowadays. Not to mention the increased density of population, especially in our large cities; in itself this is the cause of the concentration and display of large amounts of property easily accessible and tempting to the crime of larceny. The automobile, an item of property of this nature, also furnishes a means of swift transportation to and from the scene of a robbery or holdup. The automobile, too, is a factor in our large list of homicides: five thousand persons were killed in 1924 in fifty-seven cities having a population of less than twenty-seven million.
There are a good many more crimes to commit now than there were fifty, or even twenty, years ago, and the number is increasing constantly. In fact, the legislature of every state at every session, and Congress as well, adds to the number. Many are not only new crimes but belong to new species of crime. The pure-food statutes added one new variety and the narcotic drug acts another. Coincident with the advent of the automobile to our streets is the advent of traffic rules to our criminal codes. The prohibition statutes constitute, of course, the outstanding example of new criminal offenses, but it is only one of a large number that might be cited. We are carrying the attempt to regulate human relations by criminal law to the extreme. Is any condition alleged to be unsatisfactory? Pass an act of the legislature about it. Is any action deemed detrimental? Make it a crime. Are people too willing to buy stock of uncertain value? Make selling it criminal. The merchant thinks the criminal law should collect his bills for him; the mere giving of an order to pay money, unless the money is placed in the hands of the party on whom the order is drawn, has been made a crime in some states. A mass of things has been made criminal, relating to business, relating to personal habits, that has not been criminal hereto
fore, and yet we expect people to have the same regard and respect for these new standards, the same detestation for the things prohibited, that has been built into the group consciousness and the group morality by the traditions sanctioned not only by the law, but by morals and religion for hundreds of years. Coincidently with this tendency is that of obliterating any distinction between crimes, misdemeanors, and police regulations. If you don't like something, call it the worst name and attach the severest penalty. It sounds better in the criminal code, no matter how it works out in practice.
Without questioning the desirability of the things we are aiming to accomplish, it is time that we seriously faced the questions whether it is wise to place so much reliance on the one agency of criminal law, whether there are not other more effective, and indeed necessary, methods of improving conditions; whether, in fact, it is possible for the criminal law to accomplish all that it is being called upon to do. It requires something more than the mere fiat of a legislature to make law. Law in its essential substance, apart from the mere formulation of law, is a product of social life. It is a social thing. It results from the interaction of individuals with each other in actual social living. It is a social product, as language is a social product. The grammarian may lay down the correct usage in formal rules, but the usage that really survives is determined by the actual speech of the individuals who use the language in intercourse with each other. So the norms of social conduct, the sum total of which is law, while their details may be formally expressed from time to time in rules of law, are in fact determined by the actual experience and life of society, and legislation that runs counter to them cannot be made effective. To avoid the confusing element of the merits of the purpose sought to be accomplished, let me take an example from the legislation of the fourteenth century in England. In the year 1348 the Black Death which swept over Europe from the East reached England, carrying off in its repeated visitations more than one half of the entire population. The sudden rise of wages and of the price of commodities seemed to some a calamity second only to the plague. In 1349 parliament passed the first of the statutes of laborers, fixing the rate of wages at the same as they had been two years before the plague, and requiring every man, bond or free, having no other service or land of his own, to serve whoever should require him at that wage. The failure of the statute to produce the result aimed at is shown by its repeated reenactment by subsequent parliaments, with added penalties denounced against its breach. The payment of higher wages was made criminal; laborers were forbidden to quit their homes in search of higher wages, on penalty of being branded with a hot iron on the forehead; in every way it could devise, Parliament thundered its commands against the rise of wages and the movement of laborers in accordance with the demand for labor. It might just as well have thundered against the multiplication table. A hundred years later wages were twice in purchasing power what they were before the plague, and villenage had become practically obsolete.