He must, true enough, stay longer, at least in theory, but that is a detail. The main thing is that Jack’s punishment is grossly inadequate to his crime, as that of many, and maybe most of his fellow-prisoners, is grossly excessive. It is not dreadful enough to make him reform, and it is not dreadful enough to dissuade other men of his peculiar nature. Worse still, it bears no sort of intelligible causal relation to his offense; it does not inflict upon him anything even remotely resembling what he inflicted on his victim. To elect a man to the Sweezey Club for robbery and murder is fundamentally as idiotic as to elect him to the Maryland Club for piracy on the high seas, and a great deal more humane. His inclination toward robbery and murder is not obliterated thereby, and his capacity for it is only temporarily suspended. Soon or late he will get out, either by a jail delivery or by due process of law, and resume his practice. Reduced to its elementals the transaction is simply this: that society bribes him, by paying the heavy cost of his upkeep, for transiently suspending his operations, and then turns him loose to renew them.
The English embraced penology before we did, and are getting rid of it sooner. They never elect a man to a club for robbery and murder, and pay his dues and his checks; they hang him. After the war they faced the same crime wave which now disturbs the United States, with crimes of violence constantly increasing. They formed no Sweezey Clubs and summoned no expert penologists. Instead they revived the whipping-post, abandoned in the Eighteenth Century, and now every hold-up man convicted is given a series of barbarous lashings, continued until he is all in. With what result? With the result that the Recorder of London, in his charge to his Grand Jury in May, 1920, pointed with satisfaction to the fact that there was but one charge of robbery with violence on his docket. The walls of our prisons are bulging; we are constantly paying out millions for new ones. In England—but let me quote the Committee on Law Enforcement of the American Bar Association: “The great English prison at Reading has been closed. Other prisons have been turned into Borstal Institutions [i.e., reformatories for young offenders]. Prisons which formerly were crowded are now half-empty.”
But would the cat-o’-nine-tails suffice to dispose of such fellows as Dr. Hart? Would it punish him enough? Perhaps not. But the cat-o’-nine-tails is not the only instrument of correction that might be rescued profitably from the great reservoir of the old English law. I am no uplifter and hence make no specific recommendation. But I confess that I often wonder that the ancient punishment of outlawry is not revived; it is still in force in England, though it has not been inflicted since 1859. Certainly it is simple enough in its workings. A man who deliberately chooses the career of an outlaw is made one officially. From that moment he has no rights whatever. Any citizen may beat him, wound him and even kill him without challenge. It is a misdemeanor knowingly to conceal him, or even to feed him. He is thrown into the exact position of the victim he assaults and robs, and is paid off in his own coin. But is outlawry prohibited by Section Nine of the Constitution? I doubt it. That section prohibits bills of attainder, but attainder is certainly not outlawry, though it may be a part of it. In any case, why bother about the Constitution? Certainly the Federal courts have all forgotten it. The jails are now full of men who were rail-roaded there, without jury trials, in plain violation of the First Amendment. If it is moral to adjourn the Constitution in order to give the Anti-Saloon League a show, why shouldn’t it be equally moral to adjourn it in order to protect decent citizens from robbery and assassination?
One Size Fits All
From the Baltimore Evening Sun, Sept. 24, 1928
It is hard for anyone who has not had personal experience of prisons to conjure up any image of their appalling reality. They are, even at their best, places of torture: at their worst they are so bad that only men of the lowest organization can endure them. It is not the loss of liberty that drives the men in them to frenzy: it is the intolerable rigidity, monotony and imbecility of their routine. Their arrangements, like those of the public schools, are made to meet the needs and character of inmates at the very bottom of the scale. No wonder prisoners of a higher caliber—and some of the most bold and incorrigible criminals are of a higher caliber—find life in them quite insupportable, and prefer death to a continuance of it.
Theoretically, these prisoners are wards of the law, which is supposed to be impersonal. But that supposition is as absurd in this case as it is in every other. The plain fact is that the men are the slaves of their keepers. It is these keepers who determine whether their imprisonment shall be tolerable or an endless agony, whether they shall be left with some common hope and spirit when they emerge or go out as complete wrecks. It is these keepers, under the maudlin parole system, who chiefly determine how long they shall be incarcerated. If you want to find out what sort of men hold such grave powers over their fellow human beings, go to any prison and palaver with the first keeper you meet. And if you have no access to prisons, then try to figure out what sort of men are likely to seek and cherish such jobs. Here I say nothing against the keepers as individuals. They do the best they can: many of them, I believe by sound evidence, are humane and even sentimental men. But it would be absurd to look for superior intelligence in them. They are, as every test made of them has shown, ignorant and simple-minded men, and not infrequently of a mentality below that of the average of their charges. They do the best they can—but what they are asked to do in the name of justice and righteousness would daunt a herd of Platos.
It is an ironical fact that all this penning of men in cages, all this frightful effort to hammer them into docility, all this cruel outraging of their primary instincts, is done in the name of humanity. The modern prison, in fact, is humanitarianism’s masterpiece. It is a monument to its tears. There was a time when imprisonment was a rare punishment. Men were thrown into jails to await trial, but when they were tried at last they were commonly punished in other ways. Some were put to death. Others were deported. Others were flogged. Others lost certain civil rights. Yet others were mutilated.
But all these various and protean punishments were eventually outlawed by the humanitarians. They denounced capital punishment, though it at least got rid of the concrete criminal. They denounced flogging, though offenders who had once tasted it wanted no more of it. They denounced mutilation, though it robbed a pickpocket of his chief tool. They denounced deportation, though it turned many a felon into an honest and useful man. There remained only imprisonment. During the past century it has almost completely supplanted all other modes of punishment. Hangings grow rare, and flogging is seldom heard of. No one is mutilated any more. No one is deported, at least in America. One and all, large and small professionals and accidentals, men who run afoul of the law are cast into cages, and there held at the disposal of morons.
The astounding thing is that all this witless and shocking cruelty is inflicted in the name of mercy—that Jack is bidden to believe he was favored when he was delivered from the gallows. It is hard to imagine anything more stupid. Would it have been more cruel to hang him quickly than it is to torture him all the days of his life? He is one, obviously, whose doings had to be stopped. He was a professional murderer, and while he ran at large no man’s life was safe. Well, are the keepers’ lives safe while he is in prison? Will the rest of us be safe the next time he breaks out—with a maniacal lust for revenge on society reinforcing his natural villainy? It is absurd to talk of reforming such men. The machinery for reforming them is crazily inadequate, even assuming that they are reformable, which is not proved. The thing to do is to get rid of them at the first chance, as quietly and humanely as possible. If the poor simpletons told off to purge the world of them are unequal to the childish task, then let us get better ones. But let us stop penning them in cages, and goading them to more crimes.
The majority of prisoners give their keepers no concern. They are dull and unimaginative fellows, with little courage. Many of them are as comfortable in prison as hogs in a wallow. But the men of the minority—th
e bold, enterprising, pugnacious fellows—keep every prison in an uproar. They begin to plan escape the moment they get in, and they never abandon the hope. They get the worst of it every day because their keepers fear them. They make fear the hallmark of the whole place. In order to hold them every other prisoner, however harmless, must be tortured too. It must be hell to guard such fellows, year after year. Now and then one kills a keeper, escapes, sets the place into an uproar. He is caught, brought back, tortured some more. He tries to escape again. He kills a keeper. He is recaptured, brought back, hanged. The rules are made more drastic. Every prisoner suffers abominably. And the really bad ones go to dungeons. What a folly! What a cruelty! Prison is no more a place for these men than a Y.M.C.A. would be. It tortures them quite as irrationally, and almost as brutally. The thing to do with such professionals is to hang them at the first chance. The humanity of imprisonment is as false and fraudulent as the humanity of Prohibition.
But what of those culprits whose offenses do not justify doing them to death—whose continued existence is not a certain and ever-present danger to all of us? I see no difficulties in the problem. It needs only the most elemental ingenuity and common sense. Some time ago, as I recall it, a young man was sentenced in Baltimore to twenty years’ imprisonment for a banal hold-up. He will get out, to be sure, in five or ten years, but meanwhile he will be brutalized and his life will be made useless. Wouldn’t it have been better to give him a good lashing and then turn him out?
But the knout is degrading? It destroys self-respect? Well, what of sitting in a cage for twenty years?
More and Better Psychopaths
From the Baltimore Evening Sun, Dec. 3, 1934
The criminal career of the late Baby Face Nelson, LL.D., covered twelve years. During that time he is known to have a hand in the murder of three officers of the law, and in the intervals between these crimes he engaged in general practice as a thug and bully. The diligent cops first took him when he was only fourteen years old, but he was quickly rescued by the New Penology, which turned him loose on parole to perfect himself in his art. Taken again, he was paroled again, and thereafter he showed such rapid progress in technic that he was presently pushing Dr. John Dillinger and Dr. Pretty Boy Floyd for first honors. When they fell, he became undisputed cock of the walk.
The astounding thing about such scoundrels is that they survive so long. Nelson was a notorious thief and blackleg from 1922 to 1933, but he was behind the bars barely three years of that time. The cops arrested him over and over again, but always he managed to get out. Twice, as I have said, he was paroled, and once he managed to procure a pistol while in custody, and with it overcame a prison guard. How he escaped punishment the other times I don’t know, but always he escaped. Finally, growing impatient with the cops who so constantly retook him, he decided to shoot them at sight, and during the last six months of his life he and his friends disposed of three of them.
Of such sort are the abysmal brutes that the New Penology tells us ought to be handled more tenderly. They are not responsible, it appears, for their wanton and incessant felonies; the blame lies upon society. And the way to deal with them is not to butcher them, nor even to jug them, but to turn them over to “trained experts,” that they may be rehabilitated. Simply stating such imbecilities is sufficient refutation of them. Society is actually no more to blame for a gorilla of that kidney than it is for a mad dog, and the bogus “experts” can no more cure him than a madstone can cure the dog. There is only one way to deal with him, and that is to put him to death as soon as possible.
This the cops now do with great industry, to the applause of all sensible people. It is a hazardous business and the mortality is not all on one side, but there is plenty of courage in the constabulary camp, and it seems likely to suffice for the job. The cops, in fact, are the only agents of justice who show any competence and resolution. They almost always bring in their man, but once he is brought in he is in the hands of his friends, and if he doesn’t escape by one trick he is pretty certain to escape by some other. Either he fools a jury or his lawyer fools a judge. And if both devices fail, then he buys a jail guard, or breaks out with firearms, or convinces a parole board that he deserves another chance.
An example of what all this amounts to was lately under our very eyes. Some time ago a professional criminal named Mais, wanted for various murders and robberies, went into hiding in Baltimore. The cops, getting his scent, tracked him down promptly, and took him into custody. He was heavily armed, and they risked their lives, but nevertheless they took him. Sent to Richmond to answer for a peculiarly brutal murder, he was convicted and sentenced to death. But in a few weeks he had broken out of jail, and on the way he had killed a policeman. Now he is at large again, and robbing and killing again, and other cops will have to risk death to take him again.
Dr. Mais’ escape was a monument to the sentimentality with which such swine are now treated. Though he was known to be an incorrigible criminal, and all his friends were known to be of the same sort, he was permitted to receive visits from them in jail. Presently one of them slipped him a pistol, and the next day he was on his way, leaving one man dead and two wounded behind him. Suppose you were a cop, and met this Mais tomorrow? Would you approach him politely, tap him on the shoulder, and invite him to return to the death-house? Or would you shoot him at sight, at the same time giving thanks to God that he didn’t see you first?
How many such men have been executed during the past year? I can recall but one—the Hon. John Pierpont, lately put to death in Indiana after two escapes. But the case of Dr. Pierpont was so exceptional that he must have been a victim of witchcraft rather than of justice. To his last moment he expected his lawyer to save him with some sort of preposterous writ or other, or his colleagues to break into the jail and deliver him by force. He went to the chair a much surprised and disappointed man, and well he should have been, for he was the first public enemy to face Jack Ketch since the memory of man runneth not to the contrary.
All sorts of lesser felons are hanged or electrocuted—women who poison bad husbands for the insurance, drunkards who shoot their mistresses, country Aframericans who run amok, and so on—, but it is almost unheard-of for a genuine professional to be dispatched in due form of law. Always he and his friends can raise money enough to hire a sharp lawyer, and always the lawyer is able to delay proceedings long enough for psychiatry and sentimentality to save him. Two years ago, in Missouri, such a scoundrel was convicted of kidnapping and promptly sentenced to death. But he is still very much alive, and very busy with writs, petitions and psychoanalysis, and he will still be alive long after most of us are no more.
But the real masterpiece of the New Penology is not to be found among such lowly brutes, but in the person of the Hon. Thomas H. Robinson, Jr., LL.D., who as I write is still being sought by the cops for the kidnapping and cruel bludgeoning of Mrs. Berry V. Stoll, of Louisville. The Hon. Mr. Robinson, if he is ever shot by Department of Justice agents or taken alive and hanged, should be stuffed by the psychiatrists and given the place of honor in their museum, for he is an alumnus of two of their plants for reconditioning the erring, and seems to have been a prize pupil.
Like all other such rogues, Dr. Robinson was a bad boy, and got into trouble early. His natural destination was the hoosegow, with the gallows to follow, but he was lucky enough to encounter a judge who was also a fool, and so he was turned over to “trained experts.” Two separate gangs of them had at him. One (I quote from Dr. E. W. Cocke, State Commissioner of Institutions of Tennessee) diagnosed his malady as “dementia praecox (insanity),” and the other decided that he was a “psychopathic personality (not insane).” Between the two he wriggled out of custody, and was soon engaged in crime again, with literary endeavor as a sideline. His demand for ransom in the Stoll case was an eloquent argument for a literal carrying out of the New Deal.
If such deliberate and incorrigible criminals as Robinson are “psychopathic personalities,” then what
is a criminal? Obviously, the answer is that no such thing as a criminal exists, and that is the answer made by the more advanced wing of New Penologists. The felonious, they say, are simply sick, and the cause of their sickness is the faulty organization of society. Let wealth be better distributed, and the Robinsons will stop writing hold-up letters to the Stolls. And even though wealth continue to be distributed badly, the mysterious arcana of the “trained expert” can cure them.
How many sane people actually believe in this nonsense? Probably not many. Of one class I am pretty sure: the cops. I have never encountered or heard of one who thought of the Dillingers and Floyds, the Nelsons and Robinsons, as psychopaths, or as any other kind of paths. Nay, they think of these brethren as criminals, and when they go out to rope one of them they take their sidearms along. Certainly it is lucky for the rest of us that they do.
The Arbuckle Case
From the Baltimore Evening Sun, Oct. 10, 1921
This great moral cause, so obscenely wallowed in by the newspapers of late, offers an instructive indicator of the extent to which the “orderly process of the law” has been modified and improved in the United States. From its beginning it has been carried on like a circus, and without the slightest heed to the plain rights of the accused. Witnesses against Fatty Arbuckle, many of them of very dubious character, have been permitted to flood the press with preposterous attacks upon him. Volunteer committees of viragoes, knowing nothing of the evidence save what has come from such sources, have issued public proclamations against him, and sworn solemnly to see that he suffers the fullest penalties of the law. Finally, the prosecuting officer charged with the conduct of the case has ranted about it in the newspapers, apparently deliberately attempted to raise up prejudice against the prisoner in the dock, and undertaken over and over again to bring him to trial for a capital crime—all in the face of the fact that two juries, despite all this blather, have formally decided that his crime, if crime it was at all, was much less in degree and carries no capital punishment with it.
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