The theories on criminal responsibility and on crime in general, in the light of modern medical, anthropologic, and sociologic sciences, have completely supplanted the old doctrines, yet criminal legislation has apparently taken no notice of them. Modern science tells us that our antiquated tests of criminal responsibility result in sending hundreds of men to prison who ought to be sent to asylums, but we do nothing to avoid this scandal. Under our system the courts are obliged to let the conclusions of the learned judges who occupied the bench three hundred years ago have more weight than the positive investigations of the men of science of our day, and so, consciously or unconsciously, numberless crimes are committed in the name of stare decisis. True it is that in some jurisdictions, and notably in New York, the courts have recognized to some extent the progress of science and its influence upon juridic theories. But even in these cases the concession has been made only in civil cases. Thus Mr. Bishop, in his Criminal Law, is obliged to point out that our courts recognize two kinds of insanity—to wit, civil and criminal irresponsibility. Why the test to be applied in the case of the validity of a will should be different from that applied in the case of murder does not seem very clear. The scientific test as to insanity has been oftentimes recognized and applied by our civil tribunals, but the criminal judges still cling with unabashed attachment to the unscientific and unprogressive rule in McNaughten’s case. The Guiteau trial, which followed that celebrated decision, added fresh authority to the English view, and practically made the rule to be applied in criminal trials a legal dogma.
In an able and exhaustive paper by Mr. J. H. Dougherty on this very subject, before the Society of Medical Jurisprudence, the evils of such dogmatism in criminal law are strikingly set forth. “Life,” he said, “should be as sacred as property. While society needs protection from the criminal, it does not require that the protection should be insured through the application of a fallacious and discredited legal dogma.”
This is but one example of the unprogressiveness of our criminal jurisprudence. Yet, if we really have the ancient principle of the right of life and liberty at heart we ought to recognize that this legal dogma is a greater menace to the practical abrogation of the right than the despotism of an unscrupulous executive. For while the latter is an infringement of a right which the law forbids, the former is a breach of a right which the law sanctions. Again, the theories regarding the object of penal provisions have entirely changed. Punishment has been scientifically shown to be practically useless either as a deterrent or as a correctional remedy. Yet our penal codes are confessedly based on the idea of punishment and retribution. We have indeed made some little headway, such as indeterminate sentences and suspension of judgment, but only in a scattered and tentative way.
The additions to or changes in our criminal codes have been unimportant and unprogressive. What additions are made are slipshod in their make-up, at times partisan in intent, seldom in harmony with the teachings of modern science, and oftentimes in disregard of fundamental principles. Our legislators grant “hearings” before passing a law affecting the business of a few privileged men and give it due weight; but criminal bills, which may affect the public, are generally “rushed through,” probably because of an absolute lack of interest. This is but a repetition of Blackstone’s complaint against criminal legislation in his day. “It is never usual in the House of Commons,” he wrote, “even to read a bill which may affect the property of an individual without first referring it to some of the learned judges and hearing their report thereon. And surely equal precaution is necessary when laws are to be established which may affect the property, liberty, and perhaps the lives of thousands.” And he thus concludes his observations: “The enacting of penalties to which a whole nation should be subject ought not to be left as a matter of indifference to the passions or interests of a few, who upon temporary motives may prefer or support such a bill.”
The lack of public interest and of intelligent consideration by the people and the bar in criminal problems and criminal legislation are clearly shown by the paucity of criminal statistical data furnished by various States.
Penological research is based on an intelligent study of statistics, and civilized nations, recognizing this fact, have provided elaborate systems of records based on the suggestions of statistical science. But with us statistical facilities in the field of crime are not merely primitive or old-fashioned, but in many cases shamefully absent. In reply to requests addressed to the Secretaries of State of various States for official statistics of crimes committed in their respective jurisdictions, the answers I received were in a number of cases negative. The officials mentioned replied that no statistics were published by the State in Illinois, Georgia, New Jersey, Tennessee, Kentucky, Maryland, Vermont, California, Idaho, Missouri, South Carolina, Connecticut, Texas, Wisconsin, Nebraska, Mississippi, Virginia, Colorado, and Kansas. It is true that in some of these States this lacuna is filled in by special prison reports or reports of commissioners or of the attorneys-general. But even in these cases, as well as in those published officially by the State (Ohio, Indiana, New York, Massachusetts, and Louisiana), the information furnished is a monument of antiquated methods and of very little value to the student of criminology. How, then, can we study the grave questions of crime and criminals without a basis of computation?
It may be true, as some claim, that Continental jurists have refined the criminal law to an unpractical degree and too much on classic and theoretic lines, but it will not be claimed that by adhering to an old-fashioned and obsolete criminal jurisprudence the Anglo-Saxons are safeguarding their fundamental liberties. That there is something essentially wrong, or at least antiquated, with our criminal law is evidenced by the popular discontent against it, which is too widespread and insistent to be the result of ignorance or sentiment. If there is inertia as to changes in the law it is probably because, while feeling that there is something wrong, the people either can not define it or the conservatism of centuries in this field is unconsciously affecting their better intentions. Who will deny (and I address this question to lawyers and judges) that, under our system, guilty men escape and innocent men suffer in larger numbers than it should be, even allowing for the defects inherent in all human systems?—that technicalities and not facts often save scoundrels; that unscrupulous lawyers do not avoid them, and the best of judges are obliged by legal dogmas to respect them? Who will deny (and I address this question to sociologists and penologists) that the penal provisions of our present laws are inappropriate, inelastic, and unscientific; that they neither prevent nor reform; and that the basic principle of our penal codes is still retribution and punishment? Can it be that the right of life, liberty, and property is becoming a pious fraud? Of course, it is not claimed that we have less liberty now than our fathers had three centuries ago; progress never stops, and each day is something gained; but it seems clear that the juridic basis and form of our liberties have not kept up with the progress of those very liberties. Yet, what we call rights must have a counterpart or reflection in our laws. We may, while enjoying those rights, forget that the juridic basis on which they stand is crumbling with age. Unless that basis is rejuvenated the entire edifice must eventually fall. While we are in full possession of our rights we need no laws to guarantee them; but it is when those laws are encroached upon that there arises the necessity of juridic sanction for them.
The right of life, liberty, and property constitutes the essence of the “law of the land.” But the conception of rights, as we have seen, changes and progresses. The law of the land must likewise change and progress.
Laws may be the highest and best creation of man’s intellect, but they are not “hedged in by any divinity.” That is why they are neither infallible nor unchangeable. Yet, as the highest and best creation of man’s intellect, and as the final criterion of human public conduct, they should conform to the best thought and to the highest scientific progress. If they do not approach this standard they are worse than useless, for they become legalized means of oppression. It is then that Justice needs a bandage over her eyes, not to avoid partiality, but to hide her shame.