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Since confinement under our present law is for the expressed purpose of punishment, and not for quarantine and treatment, some statutes in our Compiled Laws which were intended to be most useful in suppressing the recidivists are rendered useless. One of these provides that if a person has been sentenced to any prison in the United States for one year or more for any previous offense, he may have seven years added to the imprisonment prescribed by the law for the offense of which he stands convicted. The other provides that a person who has served two sentences of not less than a year each in any state prison shall be sentenced for life or for a term of not less than seven years in addition to the punishment prescribed for the offense of which he stands convicted. In five years' association with the largest and busiest criminal court of the state I have not known of a single instance in which an individual was sentenced under either of these statutes. There have been in that time scores of the recidivists to whom these statutes were intended to apply, but because punishment is the expressed purpose of the confinement insurmountable barriers appear to prevent their enforcement. Similar statutes for recidivist petty offenders-the prostitute, the drunkard, and the petty thief-are likewise rendered useless for the same reason.
In all fields of human endeavor there has been growing up within the last fifty years an intense interest in the causes of phenomena. Exploration into new fields and tremendous expansion of the older ones have been the natural results of the pursuit of what is called the scientific method. The analysis of a problem into its component parts, with an unwillingness to accept traditional, unproved premises, has resulted in the accomplishment of much that was thought impossible a generation ago. Some day the traditional and unproved premise that punishment is necessary for the prevention and cure of crime will be abandoned even by lawmakers. When that time arrives the heading in our Compiled Laws may well be "Crime and the Treatment Thereof."
Treatment is defined by Webster as "management; handling." When we investigate the crime problem and apply the same scientific method to our investigation of the problem as is employed in locating chain stores, or in the placement of advertising copy, or in the building of a bridge, we find things that are very disconcerting to the punitive theory. And we find the openings of avenues of real opportunity for the reduction of crime. But first, of course, must be a real desire on the part of the officials charged with the task to investigate. Their attitudes of mind must admit of causes and effects. As illustrating the two opposed attitudes of mind, I will mention the case of a professional man of Detroit who believed very earnestly in the most rigid infliction of severe penalties for all crimes. He most heartily disapproved of any probation or parole system. And very frequently he referred to all offenders as a "bad lot," deserving of no interest, study, investigation, or effort other than the necessary effort to hang or otherwise punish them. He often advocated to me hanging of all holdup men. Our efforts at the study of cases and of causes were ridiculed and called sentimental. Obviously, such prejudice as this would unfit him for any
part in the scientific treatment of the problem. However, it came to pass that the eighteen-year-old son of his neighbor was arrested with a party of holdup men. He then rushed to me to say, "This boy should not be sent to prison; he isn't bad, he is a victim of a bad gang; if he is sent to prison he will come out a real crook. His mother has been a widow for many years and has had to work hard, and this boy has not had the parental guidance to which he was entitled." Needless to say, my friend was at once reminded that since he saw, in the case of the only holdup man he knew, causes of the situation which might bear investigation and perhaps other than punitive methods of treatment, it might be also well for him to look, by the same method, into the cases he did not happen to have as next-door neighbors. This gentleman has acquired now a very satisfactory investigatory attitude of mind, which is not without the need of guidance, but is not hampered by his old prejudice. He has even begun to expend time and money directed at preventing the younger son of his widowed neighbor from entering a career of delinquency. One of the chief values, if not the greatest value, to a state program of treating crime, instead of punishing it, lies in the prevention which treatment affords; not only the prevention of a repetition of an offense, but prevention of the first offense, just as the treatment attitude on the part of my friend led him most directly into a real preventive effort.
Every real investigation into the problem of crime becomes rapidly a very far-reaching enterprise, and uncovers such a multiplicity of causes, both social and individual, that it becomes very quickly apparent that no system of punishment can ever operate with success against this great multiplicity of causes. In fact, no uniform system of treating all crime is going to be any more successful than a uniform system of treating all fevers would be. The treatment must, obviously, be directed at the causes and not at the effects. Any system of criminal jurisprudence which is not based upon understanding of the problem and its causes is doomed to failure. Empirical methods are as ineffectual in criminology as they are in medicine. In the medical sciences the individual patient is treated by whatever method is indicated for his case. The treatment may or may not be painful to him, and it is frequently necessary to quarantine him in one or another kind of hospital while he is undergoing treatment. If he has an incurable contagious disease he is quarantined indefinitely. Each problem in science is approached by the investigator with an open mind. He presumes nothing; he investigates and finds out all he can; he then makes his diagnosis and proceeds upon the treatment. The treatment depends upon the diagnosis, which, in turn, depends upon what the investigation has revealed. Exactly that same method is applicable to any crime situation. It is that method which prevails very largely in our juvenile courts. In Michigan the statute pertaining thereto reads: "Each judge of probate shall have jurisdiction . . . . of all cases of juvenile delinquents and dependents." The precourt investigation and the court hearing in the case of juvenile delinquency lead very logically to a diagnosis, which, in turn, indicates the treatment. The competent juvenile court judge reaches his
diagnosis and order for treatment by common-sense, deductive lines of reasoning, and the whole procedure is delightfully simple and free from presumptions, antiquated fictions, and useless technical devices. We wonder why a boy of seventeen who breaks into a store and tells us all about the crime must be presumed innocent, then tried by a long, cumbersome, expensive method to find him guilty of the crime-perhaps, if the evidence does not conform to certain rules, resulting in his acquittal-while his sixteen-year-old companion in the crime is handled at much less expense by the simpler, more intelligent juvenile court procedure. The juvenile court machinery is designed for administering treatment, while the criminal court machinery is designed for administering punishment, but each deals with delinquency and crime. Crime today is more than ever before a problem of youth; the major crimes are committed, for the most part by individuals under thirty years of age. If a scientific method is applicable for the offender sixteen years, eleven months old, why not for the offender of seventeen years, or for the offender of thirty-five, or in fact, for the offender of any age?
The sharp improvement which takes place in the attitude and behavior of the offender when he is handled as an object for treatment instead of an object for punishment is always definite and is sometimes very marked, even in spite of the fact that therapeutic programs are of indefinite duration, while punitive programs have definite limitations set upon them. This change in attitude has been noted repeatedly and is illustrated by the case of a twenty-four-year-old Negress who was serving a five-year sentence for pandering. Her early history indicated a highly antisocial career, with one previous conviction and sentence for carrying concealed weapons. She was known as "bad," in capital letters. In the prison, built on conventional lines of steel and concrete, she maintained her innocence of the charge, was guarded and suspicious in attitude, and within two months of her admission to prison proceeded to terrorize the prison officials and inmates by her violent behavior. She assaulted and destroyed at every opportunity. The matron of the prison told me that the life of no one within this woman's reach was safe. No methods of prison discipline had the slightest effect on her behavior. The prison officials concluded she must be insane. Several psychiatrists examined her, but none could find evidence of mental disorder or defect. She became a more and more serious problem in the prison until the superintendent requested the state hospital for the criminal insane to take this woman for observation, and, incidentally, to keep her long enough (from three to six weeks) for the prison to build a special cell for her. I do not know just how the superintendent of the prison expected the hospital, built as it is of plaster, wood, and brick, to hold this woman whom his concrete and steel cells could not hold. However, she was transferred to the hospital, where she remained several weeks. She was handled by the hospital authorities, not with terror in their minds in anticipation of her violent tantrums, but with understanding of behavior disorders being individual problems for treatment. There
was not a single outburst on her part during her stay in the hospital, and she showed a surprising degree of cooperation as she witnessed each inmate in her ward being handled with the same understanding of the individual problem. The change in her attitude took place very suddenly, from the moment of her transfer to the hospital. Certainly no disease phenomena can account for such a change. It is the result of what may be called a therapeutic attitude toward her on the part of those about her, whereas she had always been met before with the punitive, repressive attitude, and she had always returned in like kind the attitude with which she was met. If that attitude of understanding and treatment is applicable to such extreme cases, why is it not applicable to all crime? Is there a greater opportunity for service to mankind available to these social workers, gathered in national conference, than the opportunity to help free the public mind from the existing emotional attitude in reference to crime and delinquency, which is so obstructive to intelligent progress in crime prevention?
SOCIAL WORK AND THE LAW: FORMS OF COOPERATION
George W. Kirchwey, Head of the Department of Criminology,
I believe it is safe to say that most social workers, especially in the field of delinquency, regard the law as an obstacle in their path rather than an instrument for their use. Let us see whether there is any real antagonism between the aims of the social worker and of the law, and, if so, what there is to do about it.
Fundamentally the law has a single aim: to secure and maintain the peace of the community. While this is easily recognized as the objective of the criminal side of the law, where every indictment still concludes with the allegation that the criminal act charged was "contrary to the peace and dignity of the commonwealth," it is scarcely less true of the civil branch. The English poor law, which dates back to the forty-third year of Elizabeth, is only incidentally a statute of mercy. It was enacted primarily to suppress the "rogues, vagabonds, and sturdy beggars" with whom the kingdom "was exceedingly pestered." Charity is still essentially a private concern. The common law has no protective function except in the quaint provision that one who threatened another with personal violence might be bound over to keep the peace. But this is no exception to the general principle. The object of the law is not my protection, but the keeping of the peace. The first real exception was developed, not in the jurisdiction of the ordinary law courts, but in the growing power of the court of chancery, which proceeded according to conscience, not on principles of law, but of "equity." Here was developed the idea that the state as parens patriae
might assume the guardianship of infants whose property rights were being mismanaged or who were in danger of becoming morally depraved. It was on this principle that the poet Shelley's children were taken from him and committed to a guardian of more orthodox religious and social views.
With the recent growth of democratic sentiment the older function of the state has been enlarged to cover a wider range of social interests. The public weal was no longer restricted to the maintenance of order, but came to include such matters of general concern as public education, public health, prevention of cruelty to children, restrictions on child labor, the checking of juvenile delinquency, the provision of mothers' pensions, the institutional care and treatment of the sick, the feebleminded, and the insane, and the sweeping prohibition, throughout a great nation, of the traffic in intoxicating liquors and of habitforming drugs.
Now, note that many of these newer functions of the state have involved a radical change in the methods of state action. Primarily the state is force, and fundamentally its method is physical coercion. But in the new concept of the state coercion is not enough. There must be not only police and sheriffs and jailers. There must be also teachers and doctors and caretakers. Coercion still may be employed, but it is now secondary-only an adjunct to the constructive activities that have become the primary aim. The state has gone into social work, but with a prestige and a power that no private social agency can hope to command. It is not too much to hope that, with the elimination of politics and the increased recognition of the expert, the social work of the state will, in the course of time, become at least as efficient as that of the best private agencies. Whether in a longer time it will come to supersede entirely the functions now exercised by the latter is a question that we may well leave to the future. It is certainly not beyond the bounds of possibility.
So much has been offered as a necessary background on which to project the moving picture of the relation of social work to the ordinary processes of the law. As has been said before, the state is embodied force, and it operates primarily through compulsory process. Its principal defect is that, with the exceptions noted above, it continues to employ this traditional method in nearly all situations and in nearly all cases. But the method of compulsion in certain situations and in many cases is ill adapted to the social end in view. The question thus arises: To what extent has, and to what further extent may, the procedure of the law be supplemented or superseded by the more discriminating methods of social work?
In entering upon this field we can do no better than to follow the trail that has been blazed for us by Reginald Heber Smith in his Justice and the Poor, and by Kate Holladay Claghorn in The Immigrants' Day in Court. These admirable studies in the operation of the machinery of justice demonstrate beyond question that, as between the well-to-do and the poor, the latter are at a disadvantage which in many cases amounts to a practical denial of justice. The delays in