Who Reforms the Criminal?

by JUDGE JOHN F. PERKINS

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ONE June day long ago, as my father was walking across the Harvard Yard he met the wellknown Greek scholar, Professor Sophocles. The professor was laughing. “The young gentlemen,” said he, “got hold of my examination paper at the printer’s. They sat up all night learning the answers, and they handed in excellent papers. They would not have troubled so much if they had known that I gave them their marks at the beginning of the course.”

This was an amusing and rather harmless bit of eccentricity in Professor Sophocles. But when it is proposed that we should adopt his method — that is, to base rewards and punishments on personal impressions and opinion — as the cardinal principle of our whole system of criminal justice, we should think twice about it.

Law enforcement in this country is notoriously unsatisfactory, and the need for improvement is extreme. But the extremity of a need does not put virtue into a defective remedy. I believe the Youth Correction Authority Act is bad legislation. I believe it is a blow at our liberties and that it will prove an obstacle to the reformation of offenders.

The Youth Correction Authority Act provides that all persons convicted of any crime except a trivial offense shall be committed to the Authority, a Board of three men appointed by the Governor. The Authority shall keep each offender under control so long as it thinks it is dangerous to let him go free, and shall discharge him if it thinks it is safe to do so. The present draft of the Act applies only to youths under twenty-one and not to crimes for which the penalty is death or life imprisonment. In principle, however, the American Law Institute maintains that the Act should apply to all criminals and all crimes, and advocates its extension whenever that appears possible.

The Law Institute emphasizes that the Authority may discharge a person at once, without affirmative achievement of any kind; it frankly abandons the principle of standards and frankly says that under the Act society is protected “only by the character and ability of the members of the Authority.” (Italics mine.) So we are being asked to adopt a system of criminal law which requires that, before a man can be convicted of a crime, his guilt must be established beyond a reasonable doubt by objective evidence, but provides that after conviction the consequence of his crime shall be determined by personal opinion.

Recently I asked a prominent penologist why we should not develop a merit system of penology — why persons who had lost their freedom by behaving badly should not have a chance to win it back by behaving well. He said that to attempt this would put back our methods of penology over a hundred years. A merit system, he said, had been tried and had proved a failure.

In discussing this Act I am not considering the administrative features or whether judges or the Correction Authority should have the sentencing power. What disturbs me is the attempt to extend the principle of a government of men, to discard the principle of a government of laws. The proponents of the Act justify this change by saying that judges now have unrestricted discretion and that they abuse it. If we take it away from one set of men (the judges) and give it to another set of men (the Authority), they will not abuse it — so it is asserted. Give it to the Authority, they say, and rely with confidence on the character and ability of the members of the Authority. Free them from the restrictions which a standard imposes, and let them base their judgment on the personal qualities of each criminal. If they think he is safe to discharge, let him go. If they think he is dangerous, keep him under control.

This proposal is a very long step from the idea Jefferson had when he wrote: “In questions of power ... let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”

If experience has taught us anything, it is that human judgment unsupported by objective measurement is extremely fallible and easily influenced by emotions. We have found it uncertain and Inaccurate. We have had to develop standards; and although they are often inadequate, and there are still fields in which no standards are available, wherever we can, and so far as we can, we use them.

We have devised objective tests and standards to determine whether a man is fit to be a doctor, to be trusted in matters of life and death. We have devised objective tests to determine whether a man has the skill and character to be a pilot, a navigator, or a gunner on an airplane; to be an amphibian engineer who can keep his head under conditions of intense danger, disturbance, and strain. In all our services we have found methods of measuring the strength, endurance, and ability of men under all kinds of strain, not only in their technical duties but also in living together. We have devised corresponding tests in most of our civil occupations. But, so we are assured, it is not possible to devise objective standards and tests to determine whether a criminal has made himself fit to be a citizen.

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I DO not believe it. I believe a proper merit system can be developed if we put into it the kind of thought and effort we have put into our method of training men for the Army and the Navy.

Where does the defeatist attitude come from? Has it not come from failure to realize that correction calls for training as well as therapy; that although medicine and education often overlap, they are essentially different; and that a method of individual treatment appropriate for a patient may be utterly inappropriate for a pupil? The doctor’s effort is to adjust circumstances to suit his patient. The teacher tries to get his pupil to adjust himself to circumstances, to the realities of life. Is not the effort to treat both these problems as matters of therapy the fallacy on which both the Doctrine of Individual Treatment and the Youth Correction Authority Act have gone aground?

Because a patient usually contains the elements of his difficulty within himself, is therefore detached, and can be treated individually without affecting other people in the community, it has been assumed that an offender can be detached from other people in the community and dealt with, so to speak, in a test tube. The assumption has been carried still further. It is insisted that because an offender is an individual he must be dealt with in a test tube, must be dealt with independently, and that therefore no standard is possible. Society, the advocates of the Act say, can be protected only by the character and ability of the members of the Authority.

Unfortunately for this theory, an offender is part of society. He is affected by other people and they are affected by him. His being an individual does not destroy his relationship to them. On the contrary, it creates the difficulty. He must learn to live with them successfully.

Medicine and education are not the same. Compare the doctor’s problem in handling Mr. Churchill’s illness after the Teheran Conference with Miss Sullivan’s problem in teaching Helen Keller.

Winston Churchill had pneumonia. Pneumococci had got into his lungs and interrupted the normal processes of his body. The doctor’s problem was to give sufficient aid to the forces of health to rout the forces of disease. Ho ordered the Prime Minister to quit work, to go to bed, to relax and make no effort. He gave him a sulfa drug. As a result, the energy saved by lying still, plus the help of the drug, destroyed the pneumococci, and the body automatically resumed its normal functions.

The illness was temporary. It was an abnormal condition. It was a crisis. Because he was sick, Mr. Churchill was given individual privileges. He was relieved of responsibility and effort. He was passive, or at least he was told to be passive. The doctor and the automatic processes of the body did the work.

Miss Sullivan’s problem in teaching Helen Keller was almost completely different. She had to teach a child who at the age of two had lost her senses of sight, hearing, and speech. Miss Sullivan could do nothing to restore those senses—could give no drug, no rest period in bed, which would produce any result. If the girl was ever to make contact with life, ever to gain knowledge or to secure enjoyment, she could do so only through her own efforts, only through her own self-development. The teacher could contribute nothing directly; she could only help Helen to help herself. If Helen was to communicate with other people, she must learn to read correctly, to write correctly. If she was to learn to speak, she must speak so that people could understand her.

It would not help to say that she had a good excuse, that she was not to blame, that society was responsible, that she was maladjusted, that she had an inferiority complex. It would not help to do her homework for her and say she had done well when she had not. Her condition was no temporary crisis due to the intrusion of a foreign organism. It was not something that could be cured. She had to acquire skills, to meet standards which could not be waived or made individual for her benefit. They were universal standards, realities of life.

Miss Sullivan’s problem was to stimulate the child to make the effort, to encourage her to keep trying, to see her difficulties, to relieve her confusions, to keep her goal clear before her. This was teaching in its truest sense. It called for insight, sympathy, patience, and great imagination. It was individual to a superlative degree. Not only did she have to understand Helen and her qualities in general; she also had to follow her moods from moment to moment to know when to put on pressure, when to stop. Miss Sullivan’s achievement was one of the greatest achievements of all time. Helen learned to read, to write, and to speak. She went to college and became a person of distinction. Miss Sullivan’s work was all teaching, not therapy.

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IN SHORT, individual treatment in its true sense is not a doctrine. It is not a formula. It does not make it possible to identify a person as an individual and then give him the right of way over everything and everybody. It simply means that we should study each situation carefully, take all the pertinent factors into account, adopt the best available alternative, and be ready to shift if the situation changes and conditions make a shift desirable and possible. The measure of success or failure is not a matter of personal opinion. In medicine, opinion is supported by established tests of temperature and pulse, by X-ray, by blood counts, and in other ways; in education, success depends on meeting the particular educational standards required.

True individual treatment calls for skill and judgment, and that is why correction is so difficult. They are rare qualities. And there are many cases where it is hard to determine what is necessary — whether it is doctoring that is needed or teaching. If we bring pressure to bear on a person who is sick, we may injure him. If we do not bring pressure to bear on a person who is malingering, we weaken his moral fiber. And as both problems often exist in the same case, it is extremely important to keep what you should do for a person distinct from what the person must do for himself.

Some months ago a boy came to court to tell us that he had been admitted to the Navy and to thank us for what, we had done for him. My mind went back to the day he was brought to court. He had stabbed another boy in a newsboys’ fight. In court, as the officer told what had happened, the boy snarled and swore at him. The family said they could do nothing with him, that he was utterly disobedient and had an ungovernable temper. The school said he was feeble-minded, in a special class, uncontrollable, and quarrelsome. We sent him to our Citizenship Training Department, which conducts an afternoon class for our probationers.

There they found that without glasses the boy was practically blind, and he had never had glasses. He could hardly hear; both ears were running. They took him to the Eye and Ear Infirmary and had glasses fitted to him and his ears cleaned up. One ear was permanently deaf, but the other was normal. With glasses he had normal vision. Tests showed that he was not feeble-minded, but had good intelligence, with a special aptitude for woodworking. We had him tutored in reading and writing and gave him as much woodworking as we could fit into the program.

In other words, we took care of the doctoring: we did what we could for him, and so far as we could we removed the obstacles and irritations which beset him. But when we had done that, he did not immediately become Little Lord Fauntleroy. He was still a savage, still constantly losing his temper, still constantly fighting. He was not to blame. But if he was to live among people, he had to learn how to get on with them. And we held him to the same standard we required of all the other boys. This was the task he had to perform himself. No one could do it for him. No one could make it individual to suit him.

It was his teacher, the director of the Group, who had to be individual. He had to understand the boy and his peculiarities and he had to use great skill in handling him. It took great patience and many long talks. Many times it was necessary to crack down severely. But because we had helped him, because the boy realized that we were trying to help him, he felt grateful and he got the idea.

When he left the Citizenship Training Group, we secured a place for him in a woodworking class at the North Bennet Street Industrial School. There he did so well that he was made an instructor, became an instructor in another settlement house as well, was taken into partnership by a cabinetmaker, and finally was admitted to the Navy in spite of his bad ear. His attitude has completely changed. He is a cheerful, friendly, hard-working boy.

What is the central fact in the correcting of criminals? Is it not that the criminal decides whether he will try to reform or not? It is his decision, not ours. If he does not want to try, if he will make no effort to redeem himself, he stays unredeemed and unrehabilitated. However favorable may be the opportunities we provide, he may refuse to take them. It is the old problem of taking a horse to water.

Therefore it is our job, so far as we can, to stimulate him to try, to treat him in a way which is calculated to make him try. So far as we can, we must avoid doing things which will weaken his resolution or rouse his opposition.

According to the American Law Institute, criminals should be treated primarily as patients in need of therapy. The following statement is substantially the proposition which the Youth Correction Authority makes to the criminal: —

“You have committed a crime and are in trouble. We will help you. Your crime is due to some emotional maladjustment or conflict. We will study you to find out what it is. We will prescribe treatment for you. We will determine when you have been cured. We will parole or discharge you when we decide it is safe to do so.

“ You must understand that we are not punishing you. We are giving you therapeutic treatment. We are dealing with the causes of behavior — not with the behavior itself. And since everyone is different and the treatment applied to each person is individually designed to cure his weaknesses, you must not compare the treatment you get with that which another person receives and think he is being treated more or less favorably than you are. Nor should you feel, because you have performed your work as well as the man with whom you have been working, that if he is discharged from custody, you also ought to be discharged from custody. You must rely on our judgment. We have to measure your characteristics. We may find in you a dangerous quality; and even if you do everything perfectly which we require of you, you may still need a long course of treatment to overcome it.”

What would be the answer?

“That’s not good enough. I have lost my liberty and I want to get it back. But you promise me nothing. You tell me that even if I do everything exactly as you require, you may still hold out on me. You say that you may let my partner go home, but may keep me indefinitely, even if I have done as well as he has or better. Why should I try?”

Would it not be better if the Correction Authority should say this: —

“You have shown that you are unable or unwilling to obey the rules of the community. You have forfeited your right to be a free man. But we will give you a chance to earn your freedom again; and if you earn it, you will get it. We give you our word on that.

“This is what you have to do: There are ten courses available for you to take. You can take any one of them; and if you pass it successfully, you go free. The courses provide training in different trades and professions. People’s abilities and aptitudes vary greatly and that is the reason we give a variety of courses. Almost anybody should find one that will suit him. But although the subject matter is different, the social strains in each course are equal. To complete it successfully you must show that you have learned how to live with other people. Your temper will be severely tested, temptations will appear unexpectedly, you will be driven to the limit of your endurance. These are not attempts to catch you. They are tests. They are part of your training, like live ammunition in the tests for the Army and the Navy.

“We want you to learn self-control, to be ready for anything that is likely to occur in the ordinary conditions of life; and before you can be free, you must make the grade just as an airplane pilot must make the grade before he gets his wings, or a medical student before he can practice medicine. But this we promise you. If you make the grade, you go free. You will be measured by what you do, by your conduct, by the way you stand up under pressure. So long as you have done the work up to the required standard, you shall go free. It is our job to make our tests sufficiently searching to detect your weaknesses.

“As to which course you take, that is your choice. We will give you an aptitude test and the best advice we can. But you are free to choose. We will give you any help in our power. If you are ill, you will get good care in the hospital. If you are disturbed, there is a psychiatrist to whom you can go if you want. If you get mixed up in your work, any one of the instructors will be glad to give you personal tutoring to straighten you out. And the pastor is truly your friend. He is always there for you to go to.

“But remember this: Your freedom depends on yourself, on your taking the opportunity we are giving you, on the way you do the work. We can give you the chance, but you must do the job. You are the master of your fate. Now it’s up to you.”