/^ c T>OS ANGELES UBRARY CRIME AND ITS REPRESSION MODERN CRIMINAL SCIENCE SERIES Published under the auspices of the American Institute of Criminal Law and Criminology 1. Modern Theories of Criminality. By C. Bernaldo de Quieos, of Madrid. Translated from the Second Spanish Edition, by Dr. Alphonso de Salvio, Assistant Professor of Romance Languages in Northwestern University. With an American Preface by the Author, and an Introduction by W. W. Smithers, Esq., of Philadelphia, Secretary of the Comparative Law Bureau of the American Bar Association. 2. Criminal Psychology. By Hans Gross, Professor of Criminal Law in the University of Graz, Austria, Editor of the "Archives of Criminal Anthro- pology and Criminahstics," etc. Translated from the Fourth German edition, by Dr. Horace M. Kallen, Lecturer in Philosophy in Harvard University. With an American Preface by the Author, and an Introduction by Joseph Jastrow, Professor of Psychology in the University of W^isconsin. 3. Crime, Its Causes and Remedies. By Cesare Lombroso, late Pro- fessor of Psychiatry and Legal Medicine in the University of Turin, author of the " Criminal Man," etc., Founder and Editor of the " Archives of Psychiatry and Penal Sciences." Translated from the French and German editions by Rev. Henry P. Horton, M. A., of Columbia, Mo. With an Introduction by Maurice Parmelee, Associate Professor of Sociology in the University of Missouri. 4. The Individualization of Punishment. By Raymond Saleilles, Professor of Comparative Law in the University of Paris. Translated from the Second French edition, by Mrs. Rachael Szold Jastrow, of Madison, Wis. With an Introduction by Roscoe Pound, Professor of Law in Harvard University. 5. Criminal Sociology. By Enrico Ferri, Member of the Roman Bar, and Professor of Criminal Law and Procedure in the University of Rome, Editor of the " Archives of Psychiatry and Penal Sciences," the " Positivist School in Penal Theory and Practice," etc. Translated from the Fifth Italian, and Second French edition, by Joseph I. Kelly, Esq., of Chicago, tormeriy Lecturer on Roman Law in Northwestern University and Dean of the Faculty of Law in the University of Louisiana. With an American Preface by the Author, and an In- troduction by Charles A. Ellwood, Professor of Sociology in the University of Missouri. 6. Penal Philosophy, By Gabriel Tarde, Late Magistrate in Picardy, Professor of Modern Philosophy in the College of France, and Lecturer in the Paris School of Pohtical Science. Translated from the Fourth French edition, by Rapelje Howell, Esq., of the Bar of New York City. With an Introduction by Robert H. Gault, Assistant Professor of Psychology in Northwestern Uni- versity, and Managing Editor of the Journal of the Institute. 7. Criminality and Economic Conditions. By W. A. Bonger, Doctor in Law of the University of Amsterdam. Translated from the French by Henry P. Horton, M. a., of Ithaca, N. Y., and Victor von Borosini, of Chicago, 111. 8. Criminology. By Raffaelle Garofalo, former President of the Court of Appeals of Naples. Translated from the First ItaUan and the Fifth French edition, by Robert W. Millar, Esq., of Chicago, Lecturer in Northwestern University Law School. 9. Crime and Its Repression. By Gustav Aschapfenburg, Professor of Psychiatry in the Academy of Practical Medicine at Cologne, Editor of the " Monthly Journal of Criminal Psychology and Criminal Law Reform." Trans- lated from the Second German edition by Adalbert Albrecht, of South Easton, Mass. THE MODERN CRIMINAL SCIENCE SERIES Published under the Auspices of THE AMERICAN INSTITUTE OF CRIMINAL LAW AND CRIMINOLOGY Crime And Its Repression By GUSTAV ASCHAFFENBURG Professor of Psychiatry in the Cologne Academy of Practical Medicine and Editor of the " Journal of Criminal Psychology and Criminal Law Reform " Translated by ADALBERT ALBRECHT Associate Editor of the Journal of Criminal Law and Criminology With an Editorial Preface by MAURICE PARMELEE Associate Professor of Sociology in the University of Missouri And an Introduction by ARTHUR C. TRAIN Former Assistant District Attorney for New York County BOSTON LITTLE, BROWN, AND COMPANY 1913 125531 Copyright, 1913, By Little, Brown, and CoarPAirr. All riff his reserved y GENERAL INTRODUCTION TO THE MODERN CRIMINAL SCIENCE SERIES. At the National Conference of Criminal Law and Crim- inology, held in Chicago, at Northwestern University, in June, 1909, the American Institute of Criminal Law and Criminology was organized; and, as a part of its work, the following resolution was passed: " Whereas, it is exceedingly desirable that important treatises on criminology in foreign languages be made readily accessible in the English language, Resolved, that the presi- dent appoint a committee of five with power to select such ^V^ treatises as in their judgment should be translated, and to arrange for their publication." The Committee appointed under this Resolution has made careful investigation of the literature of the subject, and has consulted by frequent correspondence. It has selected several works from among the mass of material. It has ^\ arranged with publisher, with authors, and with transla- -^ tors, for the immediate undertaking and rapid progress of the task. It realizes the necessity of educating the profes- sions and the public by the wide diffusion of information on this subject. It desires here to explain the considerations which have moved it in seeking to select the treatises best adapted to the purpose. ^ For the community at large, it is important to recognize that criminal science is a larger thing than criminal law. The legal profession in particular has a duty to familiarize itself with the principles of that science, as the sole means for intelligent and systematic improvement of the criminal law. ■1 •J sn GENERAL INTRODUCTION Two centuries ago, while modern medical science was still young, medical practitioners proceeded upon two general assumptions: one as to the cause of disease, the other as to its treatment. As to the cause of disease, — disease was sent by the inscrutable will of God. No man could fathom that will, nor its arbitrary operation. As to the treatment of disease, there were believed to be a few remedial agents of universal eflBcacy. Calomel and blood-letting, for example, were two of the principal ones. A larger or smaller dose of calomel, a greater or less quantity of bloodletting, — this blindly indiscriminate mode of treatment was regarded as orthodox for all common varieties of ailment. And so his calomel pill and his bloodletting lancet were carried every- where with him by the doctor. Nowadays, all this is past, in medical science. As to the causes of disease, we know that they are facts of nature, — various, but distinguishable by diagnosis and research, and more or less capable of prevention or control or counter- action. As to the treatment, we now know that there are various specific modes of treatment for specific causes or symptoms, and that the treatment must be adapted to the cause. In short, the individualization of disease, in cause and in treatment, is the dominant truth of modern medical science. The same truth is now known about crime; but the under- standing and the application of it are just opening upon us. The old and still dominant thought is, as to cause, that a crime is caused by the inscrutable moral free will of the human being, doing or not doing the crime, just as it pleases; abso- lutely free in advance, at any moment of time, to choose or not to choose the criminal act, and therefore in itself the sole and ultimate cause of crime. As to treatment, there still are just two traditional measures, used in varpng doses for all kinds of crime and all kinds of persons, — jail, or a fine (for death is now employed in rare cases only). But modern science, here as in medicine, recognizes that crime GENERAL INTRODUCTION vii also (like disease) has natural causes. It need not be asserted for one moment that crime is a disease. But it does have natural causes, — that is, circumstances which work to pro- duce it in a given case. And as to treatment, modern science recognizes that penal or remedial treatment cannot possibly be indiscriminate and machine-like, but must be adapted to the causes, and to the man as affected by those causes. Common sense and logic alike require, inevitably, that the moment we predicate a specific cause for an undesirable effect, the remedial treatment must be specifically adapted to that cause. Thus the great truth of the present and the future, for criminal science, is the individualization of penal treatment, — for that man, and for the cause of that man's crime. Now this truth opens up a vast field for re-examination. It means that we must study all the possible data that can be causes of crime, — the man's heredity, the man's physi- cal and moral make-up, his emotional temperament, the surroundings of his youth, his present home, and other conditions, — all the influencing circumstances. And it means that the effect of different methods of treatment, old or new, for different kinds of men and of causes, must be studied, experimented, and compared. Only in this way can accurate knowledge be reached, and new eflScient meas- ures be adopted. All this has been going on in Europe for forty years past, and in limited fields in this country. All the branches of science that can help have been working, — anthropology, medicine, psychology, economics, sociology, philanthropy, penology. The law alone has abstained. The science of law is the one to be served by all this. But the public in gen- eral and the legal profession in particular have remained either ignorant of the entire subject or indifferent to the entire scientific movement. And this ignorance or indiffer- ence has blocked the way to progress in administration. viii GENERAL INTRODUCTION The Institute therefore takes upon itself, as one of its aims, to inculcate the study of modern criminal science, as a press- ing duty for the legal profession and for the thoughtful community at large. One of its principal modes of stimulat- ing and aiding this study is to make available in the English language the most useful treatises now extant in the Con- tinental languages. Our country has started late. There is much to catch up with, in the results reached elsewhere. We shall, to be sure, profit by the long period of argument and theorizing and experimentation which European thinkers and workers have passed through. But to reap that profit, the results of their experience must be made accessible in the English language. The effort, in selecting this series of translations, has been to choose those works which best represent the various schools of thought in criminal science, the general results reached, the points of contact or of controversy, and the contrasts of method — having always in view that class of works which have a more than local value and could best be serviceable to criminal science in our country. As the science has vari- ous aspects and emphases — the anthropological, psychologi- cal, sociological, legal, statistical, economic, pathological — due regard was paid, in the selection, to a representation of all these aspects. And as the several Continental countries have contributed in different ways to these various aspects, — France, Germany, Italy, most abundantly, but the others each its share, — the effort was made also to recognize the different contributions as far as feasible. The selection made by the Committee, then, represents its judgment of the works that are most useful and most instructive for the purpose of translation. It is its conviction that this Series, when completed, will furnish the American student of criminal science a systematic and sufficient ac- quaintance with the controlling doctrines and methods that now hold the stage of thought in Continental Europe. GENERAL INTRODUCTION ix Which of the various principles and methods will prove best adapted to help our problems can only be told after our students and workers have tested them in our own ex- perience. But it is certain that we must first acquaint our- selves with these results of a generation of European thought. In closing, the Committee thinks it desirable to refer the members of the Institute, for purposes of further investiga- tion of the literature, to the " Preliminary Bibliography of Modern Criminal Law and Criminology " (Bulletin No. 1 of the Gary Library of Law of Northwestern University), already issued to members of the Conference. The Com- mittee believes that some of the Anglo-American works listed therein will be found useful. Committee on Translations. Chairman, John H. Wigmore, Dean of Northwestern University School of Law, Chicago. Ernst Freund, Professor of Law in the University of Chicago. Edward Lindsey, Associate Editor of the Journal of the American Institute of Criminal Law and Criminology, Warren, Penn. Maurice Parmelee, Associate Professor of Sociology in the University of Missouri, Columbia, Missouri. RoscoE Pound, Professor of Law in Harvard Law School, Cambridge, Mass. William W. Smithers, Secretary of the Comparative Law Bureau of the Ameri- can Bar Association, Philadelphia, Penn. EDITORIAL PREFACE TO THIS VOLUME By MAURICE PARMELEEi The author of this work, Gustav Aschaffenbuhg, stands in the front rank of leaders of thought in modern criminal scFence in Germany. His work bears witness to the valuable aid which medical and psychiatric studies must always render to criminal law. In its thoroughly realistic applica- tion of social statistics to the theories of criminal law, it occu- pies a place of almost unique importance in the literature of criminal science. Finally, it presents an original treatment of the entire subject — the Repression of Crime — which may well serve some day as a model for a work based on American statistics, — if reliable ones shall ever become available. Dr. Aschaffenburg was born May 23, 1866, at Zwei- briicken, in the Palatinate. Between 1885 and 1890 he pursued his studies at the Universities of Heidelberg, Wiirz- burg, Freiburg, Berlin, and Strassburg; taking his degree in medicine at Strassburg in 1890, with a thesis on "The Symp- tomatology of Delirium Tremens." Studying afterwards in Vienna (with Meinert and Krafft-Ebing) and in Paris, he then became Assistant in Professor Kraepelin's psychiatric clinic at Heidelberg. (To American students the names of Kraepelin and Krafft-Ebing are well known as among the * Associate Professor of Sociology in the University of Missouri; au- thor of " Principles of Anthropology and Sociology in their Relations to Criminal Procedure," etc. Xll PREFACE most famous psychiatrists of Europe.) At Heidelberg he became successively Lecturer (1895) and Assistant-Professor (1900). In 1901 he went to Halle (an der Saale) as Medical Director of the Department for Insane Criminals. Since 1904 he has been at Cologne, as Professor of Psychiatry in the Academy of Practical Medicine and Medical Director of the Psychiatric Clinic. Dr. Aschaffknburg's numerous published works cover varied aspects of crime and mental disease.^ In 1905 he founded the Monthly Journal of Criminal Psychology and Criminal Law Reform, of which he has since been editor-in- chief; his associate editors are von Liszt, professor of criminal law in Berlin, von Lilienthal, professor of criminal law in Heidelberg, and Kloss, judiciary counsellor in Hamm. In 1912 he began (with Professor Kriegsmann of Kiel) a series entitled "Library of Criminalistics," of which one volume has thus far appeared. The present work, under the title "Das Verbrechen und seine Bekampfung," was first published in 1903, and went into a second edition in 1906; the author has further revised it for the present translation. It is one of Germany's most notable contributions, among works having a general scope and an importance transcending national boundaries. In the three principal continental countries, a special trend of mastership has always been noticeable, — Italy emphasizing the anthro- pological side of crime (and secondarily the social), France 1 "Experimental Studies in Association" (1895-1902); " Criminal Law " in Hoch's "Handbook of Legal Psychiatry" (1901, 1906); "Penal Treat- ment of Recidivists, and Habitual, and Professional Offenders" (1907); " Prison or Asylum? " (1908); " Psychasthenic Conditions " in the " Hand- book of Nervous Therapeutics" (1909); "Treatment of Dangerous Luna- tics and Habitual Drunkards " in the " Comparative Survey of German and Foreign Criminal Law" (1909); " Protection of Society against Dangerous Lunatics" (1912); "Handbook of Psychiatry" (in collaboration; 1911 +). PREFACE XUl the social side (and secondarily the anthropological), and Germany the psychological side. And in each country a vast number of useful contributions have only a local application. A book which takes account of all factors and has more than local value is a rarity, and even then its author is not always a master speaking from mature experience. The present work has made its place as one of those books which will live for many years to come and bear a message in all countries. The first two parts of this book are devoted to a statistical study of the causes of crime, based in the main upon data from Germany. The conclusions reached by the author with regard to season, race, religion, urban and rural life, and occu- pation as causes of crime are much the same as those of similar studies of crime. He regards alcoholism as one of the most important causes of crime. While recent investigations by Professor Karl Pearson and his co-workers at the Galton Eugenics Laboratory in London have led to an opinion not so extreme as the author's as to the physical effects of alco- holism upon the offspring, nevertheless it remains true that indirectly in its effect upon the training and bringing up of offspring, as well as directly, alcoholism is a powerful force for crime. In view of the present more or less widespread movement in this country to exterminate prostitution, it is worth while to note the opinion of the author, very emphatically expressed, that it is impossible to exterminate this social evil, and that it is wiser for governments to regulate it and keep it under strict surveillance than to make futile attempts to exterminate it which may cause more harm than good. At the same time he advocates severe repressive measures against procuration. His discussion of economic conditions, such as fluctuating wages and prices, strikes, etc., as causes of crime, though necessarily brief, is interesting and suggestive. xiv PREFACE In discussing the individual causes of crime, the author, like most German criminologists, takes a very unfavorable attitude towards the theory of Lombroso and certain other criminologists that certain inborn abnormal physical char- acteristics are frequent causes of crime. At the same time the author believes that abnormal mental characteristics are prevalent among criminals, many of whom are either feeble- minded or insane in varying degrees. His low estimate of the importance of these abnormal personal characteristics is revealed by his classification of criminals, in which there is scant recognition of the part played by these characteristics in the causation of crime. These personal characteristics cannot be studied by the quantitative methods of statistics as well as the social causes of crime, because there are qualita- tive differences involved which cannot be accurately meas- ured. So that a statistical study of these characteristics is not usually as fruitful as a similar study of the social causes. In the third part, devoted to the measures to be used against crime, the author discusses several measures, such as the in- determinate sentence and probation, which are well known in this country, since they have been used here more than anywhere else. His brief statement of the fundamental principles upon which these and all other penal measures should be based is excellent. He is very certain that penal responsibility should be determined entirely according to a biological and social criterion and not at all according to a metaphysical or theological theory of a free will. Unfor- tunately many of the American criminologists, perhaps the majority of them, have not as yet seemed willing to take this position. Throughout this work Dr. Aschaffenburg displays great caution in the use of statistics, and a most judicial attitude in expressing his opinions. It is an excellent thing that a book PREFACE XV of this nature has been included in the Modern Criminal Science Series ; for it is a good example of the kind of study of which there is great need in this country. The statistical method is the only exact method of learning many things about the causation of crime and the effectiveness of the dif- ferent kinds of penal treatment. In this country we still lack adequate means of gathering the necessary data, while not enough analysis is made of such data as we have. It is to be hoped that this book will serve as a stimulus to increase the statistical study of crime in this country. Untversitt of Missouri, January, 1913. INTRODUCTION TO THE ENGLISH VERSION By ARTHUR C. TRAIN » Practical works, especially interesting and readable works, on criminology and penology are rare, and the subjects them- selves are generally regarded as depressing and distasteful. We in America are interested in the picturesque side of the criminal and in his capture by astute officers of the law, and detective stories have an amazing sale. But once the crook is safely locked up we turn to something else. Criminals and prisons are associated in our minds with rough manners, coarse food and bad smells. Statistics bore us. It is easier and pleasanter to be interested in hospitals or organized charity. But of course there are in fact few subjects of greater importance than these two, involving as they do the moral health of the body politic, the protection of property, and our own personal security. In Europe, and especially in Germany, minor public offi- cials receive a particular education and training for their duties. I'here is a numerous and efficient civil service. With us most public officers hold their places by the grace of some "boss," and get their "jobs" as a return for political services rendered. Some of our court clerks were originally bar keepers, and many of our prison officers have had little better preparation for their tasks. Those em- 1 Former Assistant District Attorney for New York County, author of "The Prisoner at the Bar" (2d ed. 1908), "True Stories of Crime" (1909), " Courts, Criminals, and the Camorra " (1912), etc. xvili INTRODUCTION TO THE ENGLISH VERSION ployed in the minor functions of the administration of criminal justice, and particularly in and about prisons and penitentiaries, are apt to be persons who are unable to secm"e other and more attractive work. Thus there is a lack of intel- ligent observation as to the working of our institutions, and consequently a dearth of reliable data upon which to base scientific conclusions. Our progress is apt to be less a steady growth than an accidental jerk in the right direction. Some- times it turns out to be the wrong direction. Not knowing very much about the subject, and being in a position to find out less, our legislatures seize new ideas (supposed to be in the nature of reform) and adopt them on the merest suggestion of sentimental women and political agitators. These ideas may be good ones, — stolen, or rather borrowed, from older countries, who have evolved them by years of study and ob- servation. Sometimes, however, these ideas are schemes to put money in the pockets of contractors or defunct politicians on the public pay roll. There are practically no penal or criminal statistics in the United States that have any real value, although this will not long be so. At the present time few reliable conclusions can be reached in regard to the spread and causes of crime or the various means of repressing it. Until economic conditions change fundamentally and politics is elevated to a moral science we shall probably never be in so favorable a position to study these things as our more serious-minded, more economically contented, and vastly more painstaking con- tinental neighbors. What books we have on these important subjects are apt to be either superficial and sentimental, or else so dry and prosy that all interest is killed at the end of three paragraphs. For this reason a work like the present, which could only have been written by a German about Germany, and which. INTRODUCTION TO THE ENGLISH VERSION Xix based largely on the author's experience, combines with it the fruits of years of study and general observation, is en- lightening and invaluable. Such a book could not have been produced in America. The author's concluding paragraph well describes the attitude with which this scholarly and broad-minded undertaking has been performed: "Only dispassionate consideration that views impartially the phenomena which we call crime, which observes Qist and then concludes, — in a word, only the natural scientific method, — can smooth the way that leads to a knowledge of crime and criminals." It is in the matter of observation that the author performs his most important service. He is far from being a propa- gandist, but on the other hand, he is not slow to demolish what he regards as unsubstantiated theories, based on inade- quate or equivocal data. His analysis of statistics and his comment upon their probative value — could be pondered with profit by most other writers upon this and similar subjects of sociologic interest. With the premise that at their best all criminal statistics are apt to be highly misleading and of doubtful significance, — he weighs the vast mass at his dis- posal and considers their limitations. He wisely points out that what acts are regarded as crimes differ widely in different places; that many misdemeanors are merely infractions of arbitrary regulations; that temporary causes (such as grain famine) can be of startling consequence; that police activity or laxness can multiply or divide the total of apparent crim- inality; that arrests are no positive indication of crime, and that convictions to be so must be based on an effective ad- ministration of criminal justice. Moreover, he shows the inadequacy of the data obtainable in different countries. Most vital of all, he points out the danger of making sweeping deductions from extremely limited facts. XX INTRODUCTION TO THE ENGLISH VERSION The exhaustive tables compiled for this interesting and instructive treatise are highly illuminating, showing as they do the incontrovertible connection between crimes against property and economic conditions, sexual crimes and the sea- son of the year, etc. There is hardly any subject connected with the causation of crime that does not come in for dis- cussion and analysis, accompanied by a light-shedding array of figures drawn from local German sources. His conclusions with respect to the effect of alcoholic stimulants on criminality are significant in a country where heavy drinking is regarded with leniency; and his observations on the small amount of criminality among prostitutes indicates that this class of unfortunates among women corresponds to that class among men which steals simply because it is "the easiest way" to live. Poverty and alcohol are, he believes, the two proximate causes of the great body of crimes. It is with some personal satisfaction that the writer finds his own observations as to the lack of common physical char- acteristics among criminals corroborated by such an eminent observer, who comments on the temptation on the part of criminologists to seek for external signs of an inward lack of spiritual grace, and the failure of Lavater, Gall, Spurzheim, and Lombroso to demonstrate their existence and significance. The problem remains unsolved and a disposition to generalize about the physiology and psychology of a "criminal born" class is less observable than heretofore. Our author's dis- criminative ability in this respect contrasts favorably with Lombroso's surprising lack of critical faculty and his willing- ness to find far-reaching significance in masses of immaterial, trivial, and otherwise explainable details. On the whole, our author's attitude is hopeful rather than optimistic, which may perhaps be attributed to his proximity to his subject and his unwillingness to accept every proposed INTRODUCTION TO THE ENGLISH VERSION xxi remedy as a panacea. He is not handicapped by the feeling that to question the arrival of an immediate millennium is unpatriotic. He weighs the possibilities and finds to his regret that "brutality, recklessness, and licentiousness are spreading more and more in the growing generation," that "whoever has once got deep into the mire of criminal life is scarcely able to get onto firm ground again" (the recidivist), and that administratively "we have reached a point where the apparently firm foundations of criminal law appear to quake." The remedies he believes for these things are to be found in those generally adapted to the increase of economic pros- perity and the reduction of poverty, in education (particularly as to the efiFects of alcohol), in the establishment of coffee and recreation rooms, in the development of regard for law, in the care of neglected children and of released convicts, etc. And he makes a strong argument based on observation and statistics, in favor of the "conditional sentence" (correspond- ing to our "suspended sentence"), the parole, and the aboli- tion of fixed terms of imprisonment. It is characteristic that the author does not advance these propositions as necessarily of established desirability, although it seems that they have been so regarded in this country for some time. He bases his arguments and advocates their adoption not on theory but on collected data, while we usu- ally proceed on the plan of trying anything that looks good to us, and then discarding it if we are disappointed in the results. Not all of his proposals are such as to commend them- selves to a people among whom respect for law and effective- ness of procedure are so far below those of the author's ()\\'n countrymen. His suggestion that the State might re-iniburse every citizen for the damage sustained by him from the crimi- nal act of another is not likely to be adopted in a land where XXll INTRODUCTION TO THE ENGLISH VERSION such a doctrine would undoubtedly immediately result in a deluge of criminal prosecutions instigated solely by a desire for financial profit on the part of the complainants. The most important lesson to be learned from this admira- ble book is that which obviously the author has most at heart, namely, that as Krohne says, "even if you have the best law, the best judge, the best sentence, and the prison official is not efficient, you might as well throw the statute into the waste basket and burn the sentence." We in America (indeed it is not confined to us) are prone to find in the mere declaration of our principles known as law the final solution of all problems and the end of our labors. We cheerfully pass Sunday closing ordinances and buy drinks at the "blind tiger," or, if we are not so hypocritical as to do this, innocently trust to the honesty of our fellow citizens not to do so either. But laws are only printed words on paper. Theories of government and of the administration of justice are of no value so long as they remain only theories. You can have the best system on earth and unless you have the right men to carry it on you will have corruption and chaos. You may have a prison so architecturally beautiful and so sanitary in its arrangements that it will delight every committeeman who goes to inspect it, but if the wrong man is in charge it will be a den of vice and a hell on earth. The author urges that the training of judges should include some (voluntary) temporary service in penal institutions. We may doubt whether the uncertainties of political life would lead many candidates for judicial office here to qualify themselves in such fashion. Such a proposition is feasible in Germany, however, if not in America. The idea back of the suggestion is a fundamental one. Ours may be a govern- ment of laws and not of men, but the fact remains that all laws and all institutions must be administered by men, and INTRODUCTION TO THE ENGLISH VERSION xxiii that so far as society is concerned the eflFect of his period of imprisonment upon the convicted criminal may be of more far-reaching importance than his original offense. We have overlooked the fact that the imposition of sentence is not the end of the application of criminal science but rather the beginning. There are few theories connected with the causes and the means of repressing crime which are not discussed and tested by the data at the author's command. As a comprehensive review of the subject no student of criminology can afford to neglect so thorough, well-balanced, liberal-minded, and authoritative a book as this, and while its scope is necessarily limited to German institutions it is safe to say that its lessons are equally applicable to our own. Arthur C. Train. June 1, 1913. CONTENTS PAGE Genebal Introduction to the Modern Criminal Science Series v Editorial Preface, by Maurice Parmelee xi Introduction to the English Version, by Arthur C. Train . . xvii List of Abbreviations of Citations to Serials and Periodicals xxvii INTRODUCTION § 1. Tasks and Methods 1 PART I The Social Causes of Crime § 2. Classification 15 § 3. Crime and Season 16 § 4. R ace and Religion 30 § 5. City and Country; Occupation 61 § 6. National Customs. Alcohol 69 § 7. Other Forms of Indulgence 88 § 8. Prostitution 90 § 9. Gambling and Superstition 100 § 10. Economic and Social Condition 102 PART II The Individual Causes op Crime § 11. In General 123 ^ § 12. Parentage and Training 124 § 13. Education 136 §!*• Age j^ •4 15. Sex C}S^ § 16. Domestic Status 162 § 17. The Physical Characteristics of the Criminal 168 § 18. The Mental Characteristics of the Criminal 178 § 19. Mental Diseases among Criminals 186 § 20. The Classification of Criminals 198 xxvi CONTENTS PART in The Struggle against Cbuce PAGE § 21. The Criminal Physiognomy of the Present 215 §22. Prevention 227 §23. Responsibility 241 § 24. The Purpose of Punishment 250 , -.i4-«*. The Means of Punishment 265 j,*^ -§-26. Indemnification, Suspended Sentence, and Probational Release . 285 § 27. The Abolition of Fixed Terms of Punishment 297 § 28. The Treatment of Juveniles and Partially Responsible Persons . 310 §29. Conclusion 317 Index 325 LIST OF ABBREVIATIONS OF CITATIONS TO SERIALS AND PERIODICALS Abhandlungen des kriminalistischen Seminars. = Abhandlungen des kriminalistischen Seminars an der Universitat Berlin. Ed. von Liszt. Berlin 1888 + • Irregularly ; new ser., vol. v., 1908. Allg. statist. Archiv. = Allgemeines statistisches Archiv., Tubingen. Irregularly. Allg. Zeitschrift f. Psych. = Allgemeine Zeitschrift fiir Psychiatric und psychisch-gerichtliche Medicin. Ed. Damerow, Flem- ming. Roller and Laehr. Berlin, 1844 + . Allgemeine Wiener medizinische Zeitung. Vienna. Annates d'hygiene publique et de medecine legale. Paris, 1829 + . Annales medico-psycholog. = Annales medico-psychologiques. Paris, 1843 + . Arch, di psich. e d'antropol. = Archivio di psichiatria, scienze penali ed antropologia criminale (formerly entitled, Archivio di psichia- tria, neuropatologia, antropologia criminale e medicina legale). Turin, 1880 + . Archiv fiir Dermat. = Archiv fiir Dermatologie und Syphilis. Vienna, 1869 + . Arch. Krim. Anthr. = Archiv fiir Kriminal-Anthropologie und Kriminalistik. Ed. H. Gross. Graz, Leipzig, 1899 + . Archiv fiir Rassen- und Gesellschaftsbiologie = Archiv fiir Rassen- und GeseUschafts-Biologie einschliessUch Rassen- und Gesell- schafts-Hygiene. Berlin, 1904 + . Archiv fiir Strafrecht = Archiv fiir Strafrecht (originally A. fiir preussisches Strafrecht, then A. fiir gemeines, deutsches, und preussisches Strafrecht). Ed. Goltdammer (cited often as Goltdammer's Archiv) ; afterward ed. Mager and Hahn ; now ed. Kohler, J. Berlin, 1853 + . Biologisches Zentralblatt = Biologisches Centralblatt. Leipzig. Semi-m. Blatter fiir Gefangniskunde = Blatter fiir Gefangniskimde ; Organ des Vereins der deutschen Strafanstaltsbeamten. Ed. Ekert, G. and Wirth, O. Heidelberg, Kassel, 1865 + . xxviu LIST OF ABBREVIATIONS OF CITATIONS Bulletin de I'institut intemationale de Statistique. Rome. Irreg- ularly. Bulletin de I'Union Internationale de Droit penal. See Mitthei- lungen der I. K. V. Mitteil. der I. K. V. = Mitteilungen der internationalen krimina- listischen Vereinigung (same as Bulletin de I'Union Inter- nationale de droit penal). Berlin, Berne, 1889 + . MSchrKrimPsych. = Monatssehrift flir Kriminalpsychologie und Strafrechtsreform. Ed. Aschaffenburg, Kloss, von Lilienthal and von Liszt. Heidelberg, 1904 + . Statistik des Deutschen Reiches ; Neue Folge. Kriminalstatistik. Berlin, 1882 + . Vierteljahrssclirift f. gericht. Medizin = Vierteljahrssckrift fiir gerichtliche Medizin und offentliches Sanitatswesen. Berlin, 1852 + . ZStW. = Zeitschrift flir die gesammte Strafrechtswissenschaft. Ed. Dochow, von Liszt, von Lilienthal and Hertz. Berlin, 1881 + . Zeitschrift fiir Sozialwissenschaft. Berlin. CRIME AND ITS REPRESSION INTRODUCTION § 1. Tasks and Methods To the criminal judge the essential condition of punishment is the commission of an act that the law has branded as a crime ^ and threatened with punishment. "Nullum crimen sine lege." This view, "the corner-stone of criminal law," ^ conforms to § 2 of the Penal Code: "An act can be punished only if the punishment was legally fixed before the act was begun." In other words, an act that is a crime under the existing law ceases to be one if the statute in question is re- pealed. This is the case, for instance, with § 175, for the repeal of which many grounds have been advanced both by jurists and by physicians. If the demand for its abolition should be granted, sexual intercourse between persons of the male sex would no longer be a crime. On the other hand, § 2 withdraws from the judge's sphere of power all those acts the codification of which has been omitted, either purposely or by inadvertence, or the culpa- bility of which is lacking owing to the wording of the stat- utes. There is no lack of examples: the sexual intercourse of women with one another, indecent acts committed by a father on his daughter,^ the being an accessory to a crime the prin- cipal perpetrator of which is acquitted on the ground of irre- 1 I have used the word "crime" in the following text, even when, according to the three divisions in our criminal code, I am speaking only of an ofiFense or a misdemeanor. « Gaupp, "Zur Reform der §§ 173, 174 RStGB." (MSchrKrimPsych. I. 111). » IMd. 2 INTRODUCTION [§ 1 sponsibility , — all these cannot be punished. In order better to get hold of procurers and panders, and to make the thief of electric power accountable, special statutes had to be enacted. Geyer ^ wonders at the view, which is a matter of course to the non-jurist, that, when an offender fails in his attempt to commit a crime because he does not make proper use of the means that he has chosen, he shall still be punishable, and as an example he mentions a cook who put a few grains of powder in a dish under the bed of her rival and set them off with a match. Because her plan failed, and was bound to fail, owing to her inability to use properly the means she had chosen, the woman should be acquitted ! Zucker ^ gives the following example of an unpunishable attempt that failed be- cause the object was unsuitable: "In our opinion the crime of attempted incest does not exist when a man cohabits with a woman, believing her to be his sister whereas in reality she proves to be the foster child of his parents." It may be im- possible criminally to prosecute such a man; but, psychologi- cally, the subsequent proof that there is no blood-relationship between the persons does not make the act one w^hit the less abominable. On the other hand, under some circumstances a grave crime may be a laudable act, as, for instance, the mur- der of Marat by Charlotte Corday, or the act of a mother who steals, or prostitutes herself, in order to save her sick child. The thinking judge, with whom the judgment of the indi- vidual case rests, and who is not content merely to establish the purely external facts and the applicability of a certain sec- tion and a certain penalty to the act, cannot take much satis- faction in his profession. "A most unhealthy formalism in ^ Geyer, "t)ber die sogenannten untauglichen VersuchsverhandluLgen " (ZStW. I, 35). ^ Zucker, "Noch ein Wort zur Lehre vom untauglichen Versuche" (Archiv fiir Strafrecht, XXX\7. 370). § 1] TASKS AND METHODS 3 the question of punishableness, and a most far-reaching judicial discretion in the extent of the penalty, stand in contradiction to each other." ^ The wTitten law holds the judge within rigid limits, that leave but little room for the consideration of psychological motives. That the circumstances under which a crime is committed should be taken into account, is shown by the pro\'isions regarding needy condition, extenuating cir- cumstances, irresponsibility of insane persons, full and partial immunity from punishment, as well as by the fact that the penalty is increased if an ofiPense is often repeated. And yet these are only a few points, and are far from enabling us to do justice to the psychological judgment of such a compli- cated phenomenon as crime. \ For that purpose more study is necessary than that of the commentaries on the criminal code. "I see the deepest reason for many of the defects of our present conditions in the purely juristic education of our theoretical and practical criminalists. I do not for a moment demand that the criminal judge and lawyer should make anthropological or statistical investiga- tions; but I do demand of him that he should be as familiar with the results of criminal biology and criminal sociology as with the provisions of the criminal code and the decisions of the national courts." So says von Liszt,^ who thus values the study of crime as a social phenomenon and of the nature of the criminal as highly as he does the knowledge of the laws — and rightly so. Our administration of criminal law is no abstract science, but an applied policy towards criminals. The necessity of establishing its foundations more firmly cannot be overlooked, except by him who will not or cannot see what criminality means to the State. The criminal sta- ^ Wack, "Zukunft des Strafrechts." Rede gehalten in DUsseldorf auf der Jahresversammlung der Rheinisch-Westfalischen Gefiingnis-Gesellschaft. ^ von Liszt, " Kriminalpolitische Aufgaben" (ZStW. IX, 456). 4 INTRODUCTION [§ 1 tistics for the year 1909 show 536,603 persons convicted of 629,271 acts, — 1192 convicts per 100,000 persons of pun- ishable age. And it must be borne in mind that the statistics deal solely with crimes and offenses against national laws, not with those against individual State laws, and thus not with the numberless minor offenses, which can safely be esti- mated at 2,000,000, at least. Whoever knows this (and every jurist should know it) is curiously affected by the common at- tempt to weaken the effect of these figures by calling attention to the many cases of neglected vaccination and such minor matters. The seriousness of the state of affairs which makes such trivial remarks entirely inappropriate most certainly demands a clear and unobstructed view. In 1909 the German courts pronounced 32 death sentences and condemned 5 persons to prison for life; the sum of the penitentiary (" Zuchthaus ") sentences would amount to at least 22,000 years; of the prison sentences, to 52,000 years. Von Krohne estimates the cost of criminal prosecutions and the carrying out of sentences in Prussia at 120 million marks. Is it necessary to add a word of explanation, as to why the judge should leave the courtroom and the study and go out into life, among the people, so that he may learn to know crim- inals, and then, in a different way and better equipped, take up again the struggle against crime.'' Whoever sees in the science of criminal law merely a train- ing for logical thought, and is glad when he has found the dead formula that fits the living deed, will find nothing significant in the figures quoted. But he who is not satisfied to judge ac- cording to the letter of the law will not care to proceed without contact with the daily life of the people, and, above all, he will not be content to lack the knowledge of criminal sociology which is offered him in the statistics of criminals or of moraUty. They show under what external circumstances a crime §1] TASKS AND METHODS 5 comes to be committed, how the world in which we live exer- cises its influence and directly and indirectly gives the in- centive to criminal acts. But they also permit us to perceive that, besides the social processes that operate on the individual, there are also in him physical and mental causes. Thus we gain a deepened insight into the psychogenesis of crime. A wealth of new aspects confronts us, — new questions to which answers cannot always be given. For there can be no doubt on this point, that the psychology of crime and of the crim- inal is no finished science — it is too young for that. But it uncovers one after another the causes that produce crime; it illuminates the depths that are hidden from the judge with his ever-ready decision; it shakes the foundations of the crim- inal law. Not, however, that we are to watch in despair the collapse of an apparently firmly built structure. Criminal psychology seeks to probe the causes of crime and to measure the eflBcacy of punishments; on the new foundation it hopes to build up a new criminal law, which will protect society better than the present one and secure the individual from the attacks of the criminal. That is its goal. But which is the path that leads to it.'* "Criminals must not be regarded as the refuse of society, they are rather a part of it, — as a wound is a part of the body." This remark of Corre ^ is as striking as it is true; the criminal world is an inseparable component part of human society, with which it is most closely united in growth and from which it continues to draw fresh nourishment. Only within and in relation to society can crime come into being. But if it is really the sore spot on the social body, we are tempted to extend the comparison, and to proceed with the study of criminality in the same way that clinical research is usually undertaken. ^ Corri. " Essai sur la criminality," p. 76. 6 INTRODUCTION [§ 1 The first question to be considered in medicine is the cause and origin of a disease, — the etiology; then the symptoms; from these we form the diagnosis, the distinction from other diseases; and finally we come to therapy. Proceeding in this way, we should first have to investigate the causes of crim- inality; then the different forms under which crime appears. The diagnosis corresponds to the question of the classification of criminals, to the question of the existence of Lombroso's "born criminal." When we are at last in possession of cer- tain knowledge in this direction, when we can survey, as far as possible, the nature of crime and its causes, then we come to consider the most important practical question: How shall we treat this sore on the body of society.'* We shall have to consider and to judge the existing measures, and — if pre- vious methods of treatment should prove to be inadequate — to find out what can be done, — a task as important as it is absorbing. The comparison with natural scientific subjects shows us, not only the direction we should follow, but also the method we should use, — that of objective observation. When we have seen under what external circumstances a crime is com- mitted, we shall have to try to find the relation between the crimes committed and the phenomena of life that are familiar to us. Von Liszt ^ has come forward in a lecture as an exponent of the view that the roots of criminality, in so far as it is not a social symptom of disease, must be looked for in normal social life. I am entirely of his opinion; and I have, therefore, endeavored not to base my explanations on individual cases, which merely show how life and its irritants affect one person, but on the phenomena of masses, the most frequent crimes. ^ "Die gesellschaftlichen Faktoren der Kriminalitat " (ZStW. XXIII, 203). § 1] TASKS AND METHODS 7 With the individual case, absorbing as it may be psychologi- cally, the peculiarity of the individual obscures our view of the universally valid causes, and chances cannot be separated from the regular phenomena. We shall, therefore, without denying the importance of observing individual cases in de- tail, keep in the main to the large numbers that the criminal statistics ^ offer us. But here we meet at once with two great difficulties. One lies in the collection of statistical material,^ the other in the making use of it. It is not feasible to use absolute numbers as a measure for comparison. We shall see, for instance, that in England, during the periods from 1861 to 1863 and from 1879 to 1881, crimes against the person were as 100:102, crimes against property, as 100:110, yet this does not show that these crimes have increased. As a matter of fact, the population has increased by more than 30% in the same period so that it would be a gross error to assume that thefts and cases of assault and battery have increased. It is not even entirely correct to establish an exact parallel between the increase in crime and the increase in the population. The increase in the population is felt chiefly in the swelling of the number of minors, and the percentage of crime among these is greater than among adults. With this restriction — the de- fect cannot be removed by calculation — the method used in the criminal statistics of the German Empire (that is, of relating the crimes committed to the number of inhabitants over twelve years of age) may be regarded as the fairest. ' German criminal statistics appear annually, excellently revised and ar- ranged in one volume, published by the Imperial Statistical Bureau. Putt- kammer und Miihlbrecht, Berlin. ^ Compare, as regards the whole question: von Oettingen, " Moralstatistik," 3d ed., p. 440; von Scheel, "Zur Einflihrung in die Kriminalstatistik, insbe- sondere diejenige des Deutschen Reiches" (Allg. statist. Archiv., I, 185); von Mayr, " Die Nutzbarmachung der Kriminalstatistik " (MSchrKrimPsych. I, 42). 8 INTRODUCTION [§ 1 But even the relative numbers cannot be used as they stand- Above all, it must be considered at what stage of the legal proceedings the census must be taken. Should the crimes, the accused persons, or the convicts be counted? In the crimes we find the act, but not its producer, — the consideration of whom is the most important point for us. In many crimes several persons are involved. Of the punishable acts which were followed by convictions in 1903 in Germany, 45,437 (= 7.5%) were committed by several persons. These cannot be disregarded, especially as they involve at least 100,000 criminal persons. Among the accused, again, there are many innocent per- sons, as well as others whose guilt cannot be proved. The number of persons acquitted amounted in 1909 to not less than 148,211, more than a fifth of all those accused. All these are without significance to us, though not in every re- spect. Acquittals, indeed, are subject in the highest degree to the effect of the general feeling for law, to current popular views. This is shown by a comparison of the administration of justice in different countries; I need only mention the fre- quent acquittals in Latin countries of men driven to crime by the unfaithfulness of their wives. But even with us similar phenomena are not lacking. Every attorney who is defend- ing a person charged with arson objects, in his cUent's interest, to having farmers on the jury, because experience has shown that in doubtful cases they are more likely to find the accused guilty than are men who five in cities; and, on the contrary, when a man is charged with violation of oath, his attorney will prefer peasants as jurors. Even the judge is more influ- enced by popular views than he realizes, and pays tribute to them. This is no reproach; to assume that the judge is not also a child of his age and environment would be to deny the foundations of our whole thought. Looked at from this § 1] TASKS AND METHODS 9 point of view, acquittals are of the greatest interest; they afiford us an insight into the opinions of certain times and cer- tain peoples. Another objection to making use of the number of charges brought is their dependence on the skill of the police; it is largely a matter of the cleverness and activity of the police whether a criminal prosecution is possible. And, finally, the "criminal irritability"^ makes itself felt, which causes the public to claim the aid of the criminal judge in ever increasing degree. Thus we come to the use of the number of convicted persons. In this way we are of course obliged to leave out of account all the numerous cases in which the criminal is unknown. But, on the other hand, in considering the convicts, we are able to ascertain most of the factors that come under con- sideration in seeking out the origin of the crime. Hence it is the number of convicts that seems best adapted for our use. The trivial errors that still cling to these statistics can scarcely be avoided; the advantage of absolute accuracy, which their correction would give, would be far too slight to justify the vast amount of labor that would be necessary. As has been mentioned, the minor offenses are lacking in our Imperial statistics; thus, they leave unnoticed the whole great army of beggars, tramps, and prostitutes. As regards these, we must seek other sources. Some crimes are repre- sented in the statistics by figures that are far below the reality. This is true, for instance, of offenses under § 175, and es- pecially of criminal abortion, of which Lewin ^ rightly says: "Such an open, universally known, and universally disre- * Seuffert, "Die Bewegung im Strafrechte wahrend der letzten dreissig Jahre," Dresden, von Zahn & Jansoh, 1901, p. 64. "^ Levnn und Breuning, "Die Fruchbibtreibung durch Gifte iind andere Mittel," Berlin, 1899, Aug. Hirschwald, p. 7. 10 INTRODUCTION [§ 1 garded, mockery of the law as exists should not be permitted to continue." If, as regards this offense, statistics leave us in the lurch, we must look for aid elsewhere; that this is pos- sible, and how it is so, Lewin's book has shown. In respect to the principal crimes, however, especially theft and assault and battery, the statistics are an inexhaustible resource, giving us new and valuable results on every fresh examination. A further difficulty, to which von Liszt ^ particularly calls attention, is this, that the criminal statistics deal with the technical juristic conceptions of crimes used in the criminal code, which do not coincide with the psychologically efiFectiv^e motives of the act. The Penal Code formulates its conceptions of crimes according to the interests injured or menaced by the act, and from this point of view divides the crimes into groups. In criminal statistics which are intended to show the causes of crime, another method of grouping is necessary. A few examples will show this more clearly. During the years 1892-1895 there was a considerable decrease in the number of thefts, simple thefts (not repeated) diminishing from 107,904 to 86,656, more serious cases from 12,228 to 10,235; thus the decrease amounted to 17% and 20%. Another crime which, with theft, is reckoned among the crimes and oflFenses against property, increased by 15%, namely, malicious mischief. Now, if we look further for crimes which show a similar increase, we come across the convictions for insult and assault and battery. These "crimes against the person" increased in the same period by 18% and 21%. This differ- ence between the course of theft and the course of malicious mischief, which is noticeable at all times, is so striking that certain reasons must exist for it. They appear at once when we compare the psychological processes involved in both crimes. Theft is usually carried out with deliberation ^ von Liszt, loc. cit. p. 474. § 1] TASKS AND METHODS 11 and premeditation, as quietly and secretly as possible, most often at night; malicious mischief is seldom done deceitfully; as a rule it is inflicted in a rough, brutal way, loudly, openly, frequently as the result of alcoholic excesses. This explains the similarity between it and the figures for assault and bat- tery and insults, which usually spring from the same cause. Thus, psychologically, malicious mischief should be grouped with assault and battery, not with thefts. A further example is found among the sexual crimes, which include inducing women to prostitution, as well as rape. Now the former is always based on the lowest kind of avarice. It is an act always carried out with deliberation, more often by women than men, and in many cases by persons who are long past the age of sexual attraction. Rape, however, arises from the brutal and uncontrolled sexual excitement of the moment; it can, of course, only be committed by men. Many cases of insult ("Beleidigung," § 185) would have to be char- acterized psychologically as sexual crimes.^ Crimes that differ so widely psychologically should not be classified in one group, if criminal psychological knowledge is not to be always in danger of being led astray. The Imperial criminal statistics distinguish between four groups : crimes and misdemeanors, 1, against the State, public order, and religion; 2, against the person; 3, against property; 4, crimes and misdemeanors in oflBce ("im Amte"). Seuffert ^ is right in emphasizing that only the last group is of value for the com- prehension of criminality. It cannot fail to be recognized that statistics still leave much to be desired; for improvement in which we cannot hope till the needs of a practical criminal psychology shall have been more exactly determined. But the foregoing makes clear our ^ Aschaffenburg, "Zur Psychologic der Sittlichkeitsverbrechcr" (MSchr- KrimPsych. II, 400). » Seuffert. loc. cU. p. 23. 12 INTRODUCTION [§ 1 second difficulty, that of using the facts estabhshed by crimi- nal statistics. We see in the figures crimes expressed only in the terms of the criminal law. Hence, we must be cautious about drawing far-reaching conclusions from them. An old and proven principle of medical science teaches us to beware, in all examinations, of confusing the post hoc " with the propter hoc." Only, for instance, if we see the same symptoms appear repeatedly after the application of a remedy are we justified in bringing the medicine into causal connection with the result. Hence, the same principle applied to criminal statistics also demands that we should infer an inner connection, only if we repeatedly find the same relations between external cir- cumstances and an act that we are inclined to believe is caused by these circumstances. Whether these causes are sufficient to explain the occurrence of the crime, should be made the subject of the most mature consideration. Repeated exam- ination and careful criticism will prevent our accepting false causes, will guard us from simple errors; from advancing false assertions in which the wish is father to the thought — and these are not so very rare — our scientific honesty must pro- tect us. Only the most careful restraint can prevent our confusing apparent with true causes. If, for instance, we find that the love of pleasure has an unfavorable influence on criminality, it would be incorrect to make love of pleasure responsible for an increase in crimes, especially those against the person. It is only the apparent, outward cause; the true one is the alcohol consumed at places of amusement and on festive occasions. The difficulty of interpretation makes only slow and cautious progress possible. We must never forget that the criminal statistics give only the naked figures; that they take no account of minor offenses, and can, therefore, give no exhaustive picture of the criminal world. §1] TASKS AND METHODS 13 Nevertheless, it is worth while to try to summarize what these figures can teach us, to try to breathe life into the dry numbers. Though some paths may be trodden in vain, and some may prove to be blind, yet the trouble taken is rewarded by the new points of view obtained, from which another may see the goal more clearly and seek to reach it with perhaps greater success. Part I THE SOCIAL CAUSES OF CRIME § 2. Classification In view of the prevailing uncertainty as to whether we are justified in bringing a criminal act into causal connection with the accompanying conditions, the outcome of any attempt to group the causes is dubious from the beginning. Nevertheless, I have divided them into two large groups: social causes, and individual causes. This division, however, is not intended to anticipate the discussion of the causes, nor to assign to those dealt with their ultimate place, but merely to arrange them in a scheme for discussion. We shall soon see that the first group concerns only external conditions the general fluctuations of which influence the commission of a crime; the second group will always lead us, in the examination of the individual's personal inclination to crime, back to the soil from which the individual springs, and thus direct us back along the way to the social causes. For the soil in which crime generates von Mayr has coined the term "external impressional influences," for the individual disposition, "personal impulsional influences." The latter term in particular contains a certain judgment of the individual factor which seems to me to go too far. For we shall see that in most criminals there is no inner impetus towards crime, but merely the inability to withstand the pressure of external driving forces. Hence it seems to me that the old terms correspond best to the real conditions. To what extent the two groups of causes cover each other, and how iO THE SOCL\L CAUSES OF CRIME [§3 often a careful examination makes it necessary to change the gToaping, will appear later. ^ 3. Crime and Some crimes show a striking dependence on the season. DilJerences in their frequency in summer and in winter are noticeable in aU countries; hence, it is not surprising that this phenomoion has long been the subject of special atten- tion. Yet, in spite of this lively interest, we are still rather TABLE I Sexual Ckdcbb rs Rzlatton to Seasox ts PaA3scK. 18S7-1M9 ATteT Ferri. perrenta«res reckon«l by the author.' fur JO. Ckoces rs Fmjjcx. ISiT-i^t- DiT» or C •OUWJ*. »-l871 Uamrm 0» AiMTLrs Amaum VaBOtXTE C~_ 1 =,- Ncnas NrVBBM T,,,,, J 5&4 7.09 1.106 5-57 i.«3 7.84 Vthnmry 563 6>4 1.041 5.24 2.661 8.02 Marek . MS T.Si 1J6« tJ» MIK 7M Aprfl . . 008 739 1,700 S^ 1387 SM M«T . . 904 10 9S il75 10.95 3,060 9.11 Jtsk . . 1.043 12.67 £.585 13.03 3.018 9.08 J^r - . 800 10.45 2.459 12^42 2.911 8.7t 7W 9.54 2.208 11.13 , 2.742 8.25 n^ iMii ll^^|' ' 653 7.93 1.773 8.9S 2.810 8.46 October 5Si 6.46 1.447 7Mi 2.«£5 7.91 NbvcBber 514 6.i4 983 4.95 tjtto 739 DtB^BDer 534 6.49 939 5.0S ' 2.665 8.02 Unknovn 1.4^1 16,160 at a loss as regards the deepest causes of these fluctuations and are scarcely able to get beyond surmises. This, however, does not detract from the importance of the facts themselves. Table I. after Fern,- shows how sexual crimes in France were I Instead of the irrderuit days of birth. - Ffrri, ^Das Veiiwechen in seiner Ahkb^^at yom dea jlfcrfcrhf Tt ii^ma l w irediad" (ZStW. EL 38). §3] CRIME AND SEASON 17 distributed over the different months during the years 1827- 1869. The commission of these offenses becomes more fre- quent from March on. The increase is rapid until the maxi- mum is reached in June, after which it decreases just as rapidly, and from October to February remains at approxi- T-^BLE n The CEncsALiTT or Gehmjl>"t accoeding to the Yeab jlstd Mosth whkv THE Chimes *T;y. committed ("Statistics of the German Empire," N. F. LXXXIII, H, p. 52.) If there are 100 offenses per day in the year, there are per day in the mooth: Knn) OT Chuoes uro Ofteksbs -^ -^ < C I Z Crimes and oSeaaes against national laws Resisting officer Breach of the peace . . . Rape Obscene acts, distribution of obscene literatme . . . Insult ("Beleidigung") . . Infanticide Simple assault and battery . Aggravated assault and bat- tery Crimes against property . . Petit larceny, also when repeated Grand larceny, also when repeated Embezzlement Fraud, also when repeated . Malicious mischief .... 95 97 90 92 99103105109105 103103 98 89 94 89 94 97 104 109 117 112 104 99 90 94 99 96 100 98 101 105 110 106 102 1001 89 64i 66 78103128144149130108, 90 68 69 I ! : ' ■ ' \ 62 74 83 101130150141133 109 84 69 64 83 89 85 9S 108 115 120 122 113 99 93 SO 89 127 127 121 lis 102 95 SO 91 86 82 87 76 80, 79 95 108116124134121102 88 74 I 751 TO] TO 109108 96 113115 98 951081131181331241106 93 90 93 93 92 93 93|104 85 87 88 88 92 92:106117 TO 113117 121 102 107 92 89 94 98 98 94 96 106112111 100 97 94 94 98 100103 101 98 104 105 108 112 lOS 95 88 92 92 92 93 90 88102121 SS 92 9S lOS 109 106 104 104 103 101 99 SS mately the same low point. These differences between the months are much more clearly marked where the objects of the crimes are children, the month of June exceeding the winter months by more than 130*^. The statistical card-records of convicted criminals in Ger- 18 THE SOCIAL CAUSES OF CRIME [§3 PLATE I Crime and Season in Germany (1883-1892) ("Statistics of the German Empire," N. F. LXXXIII, II, pp. 52, 53.) 160% Sexual crimes. Obscene acts. Simple assault and battery. Aggravated assault and battery. Insult. 150% l40°/4 i /> \ 120% ^ 110% V ^ f \ ^ \ 100% 1^ \ \N 90% IS > ^ \ 80% ^ ^^^ \ \. ^ 7D% 1>^ 7 \ V W \ 60% / // V C 50% 40% 30% 20% 10% 0% Jan. Feb. March k^xW May June July Aug. Sept. Oct. Nov. Dec §3] CRIME AND SEASON 19 many also contain a column: "Time when the deed was com- mitted." The results of these records, which have been kept for years, are presented in the criminal statistics for 1894.^ The calculation is based on the period from 1883 to 1892; its value is considerably increased by the fact that the inequali- ties in the length of the months have been corrected by exact calculation. Consequently, the figures given in Table II can be compared without alteration. TABLE III Distributions op the Conceptions in the Difperent Months in Germany (1872-1883) (Statistical Year-Book for the German Empire," 1885, p. 21.) If the average number of cases per day in the year is 100, the number per dav in the different months is: Months Births including Stillbibths January . February March . . April . . May . . June . . July . . . August September October . November December 100 99 99 103 106 104 100 97 95 95 98 105 The increase in sexual crimes begins in Germany in March, just as it does in France; the maximum is reached in July, after which the number quickly decreases; a very similar curve is shown by "obscene acts," except that in this case the maximum is reached in June. The fluctuations are tremen- dous. July exceeds the winter months by more than double ^ " Statistik des Deutschen Reiches," N. F. LXXXIII. 20 THE SOCIAL CAUSES OF CRIME [§ 3 the number of sexual crimes. This is strikingly shown on the preceding plate (I). We come now to the question: What is the significance of this phenomenon, which may be observed in the same way in all other countries as well? As long ago as in 1831, Vil- lerme ^ pointed out that the births are by no means equally distributed over the different months; that, on the contrary, they show perfectly regular fluctuations in frequency. The births are, of course, a matter of indifference to us, but of greater importance is the psychological significance of the time of conception. As Table I, taken from Ferri's work, shows, the increase of the conceptions in May and June in France is unmistakable, although the differences of the single months among themselves are not very great. ^ In Germany the differences in the months of conception are quite independent of the marriages; Lent and the harvest season cause the latter to be postponed to more convenient times, so that the curve of the marriages shows two deep incisions. The variation in the number of births in the differ- ent months is not, at first sight, very great; the days of con- ception culminate at two points, one in December (the holiday season), the other, the highest, in May. This month exceeds the lowest one, September, in ten years, by 142,000 births; this is a proof of how significant in the course of longer periods the variation in the different months becomes. But a matter of special interest is the relation of the legitimate to the illegitimate births. The number of illegiti- 1 VillermS, "De la distribution par mois des conceptions et des naissances de rhomme" (Annales d'hygi^ne publique et de medecine legale, 1831, p. 55). * The preponderance of the conceptions from April to June is most clearly shown in the Swiss statistics for the years 1871-1890. {Bezzola, " Statistische Untersuchungen tiber die Rolle des Alkohols bei der Entstehung des originaren Schwachsinnes," Intemat. Monatsschr. z. Bekampfimg der Trinksitten, XI, 180). § 3] CRIME AND SEASON 21 mate conceptions rises rapidly from March on, reaches its maximum in May, as does the number of legitimate concep- tions, and then sinks again rapidly. From September on, it remains, apart from a slight rise in December, till February, below the average. Thus we see that the differences in the days of conception among the unmarried are much more marked. The comparison of these dates shows the influence of the season in the whole sphere of sexual intercourse. It is less pronounced in the legitimate conceptions, but remarkable enough, because of the size of the numbers under consideration. This phenomenon is more noticeable in the illegitimate con- ceptions, and much more striking in the offenses against chas- tity, and is most marked among these again in those crimes that are most atrocious, namely, those the objects of which are defenseless and immature children. From these facts we must draw the conclusion that some connection exists between sexual excitability and the season of the year. The fact that this influence on sexual life, of which we are usually entirely unconscious, also appears in the sphere of normal and legiti- mate sexual intercourse, and that this dependence on the season is the more striking, the more reprehensible is the manner in which the sexual instinct is gratified, requires an explanation. Other social phenomena also show regular fluctuations in frequency, above all suicide, the curve indicating which takes precisely the same course as that of sexual crimes. In the winter months, at a time, that is, when economic necessity pushes many a man to the verge of despair, relatively few peo- ple die by their own hand; the highest point in the tendency to commit suicide occurs in June, in some countries in May.^ ' von Mayr, "Der Selbstmord" (Allg. statistisches Archiv, 1896, p. 722); Soquet, " Abhangigkeit der Selbstmorde von der Wittenmg in Frankreich von 1827-1880" (Annales medico-psycholog., 1890, p. 41). 22 THE SOCIAL CAUSES OF CRIME [§3 Moreover, this regularity — a rapid rise of the curve in spring and as rapid a sinking in midsummer — is found, not in Ger- many alone, but also, without exception, in all other European countries. TABLE IV Suicide and Temperature (After Durkheim: "Le Suicide," p. 93.) Fbance 1866-1879 Italy 1883-1888 Pbussia 1876-1878, 1880- 1882, 1885-1889 MobthbI Medium Tempeb- Suicides Monthly TO 1000 Medium Tempebatube Suicides MONTHLY TO 1000 Annual Suicides Medium Xempeb- ATUBE Suicides MONTHLY TO 1000 ATUBE Annual Suicides Rome Naples 1848-1877 Annual Suicides January . . 2.4° 68 6.8° 8.4° 69 0.28° 61 February . 4.0° 80 8.2° 9.3° 80 0.73° 67 March . . 6.4° 86 10.4° 10.7° 81 2.74° 78 April . . . 10.1° 102 13.5° 14.0° 98 6.79° 99 May . . . 14.2° 105 18.0° 17.9° 103 10.47° 104 June . . . 17.0° 107 21.9° 21.5° 105 14.05° 105 July ... 18.9° 100 24.9° 24.3° 102 15.22° 99 August . . 18.5° 82 24.3° 24.2° 93 14.60° 90 September . 15.7° 74 21.2° 21.5° 73 11.60° 83 October . . 11.3° 70 16.3° 17.1° 65 7.79° 78 November . 6.5° 66 10.9° 12.2° 63 2.93° 70 December . 3.7° 61 7.9° 9.5° 61 0.60° 61 Morselli ^ seeks the explanation in the temperature. A comparison between the temperature curve and the number of suicides does, indeed, show a remarkable parallelism until June; but, from then on, the suicides rapidly decrease, whereas the heat of summer grows greater. During the heat of August there are considerably fewer suicides than in the cool month of April. Hence the temperature in itself cannot, or at least, cannot alone, produce the remarkable phenomenon. Yet I do not agree with Durkheim,^ who excludes the cosmic influ- 1 All months reckoned as having thirty days. * Morselli, "Der Selbstmord," p. 93. ^ Durkheim, "Le suicide," Paris, Felix Alcan, 1897, p. 82. §3] CRIME AND SEASON 23 ence altogether. After all, it is still possible that the increase in external warmth does at first exert an exciting influence on man, which is followed, when the heat is long continued or increases, by a reaction. Another explanation is much more seductive, that is, that the number of suicides is connected with the length of the days, with the number of hours of light. ^ The length of the days and the frequency of suicides in the different months do, indeed, entirely agree with each other. Nevertheless, the explanation seems to me untenable, because most suicides are not committed in the daytime, but early in the morning or at night. In addition, it is difficult to find in light a psycho- logical motive for putting an end to life. Drowning is not a very common mode of suicide; in Prussia, for instance, in 1893, of 6409 suicides, only 1145 (= 18%) put an end to their lives in this way. Hence the relative infre- quency of suicides in winter cannot be dependent on the mere mechanical difficulty of this manner of death, as has already been suggested. This supposition entirely fails to account for the rapid decrease from the middle of the year, and for the fact that there is the same distribution of suicides in coun- tries where the rivers and lakes do not freeze. All explanations of the frequency of suicide in summer that are based on external influences are unsatisfactory. We must be content with the fact as such. It is important enough, clearly showing, as it does, the existence of periodic fluctua- tions of the psychic balance. At a time when the external conditions of life afford comparative security against want and misery, such far-reaching and deeply felt factors affect man and weaken his power of resistance that he resorts to suicide. In the absence of any other comprehensible cause for this, 1 Chaussinand, "fitude medico-legale sur la statistique criminelle en France," Lyon, 1881. 24 THE SOCIAL CAUSES OF CRIME [§ 3 there remains only the explanation that our organism is subject to acute periodic changes. These periodic fluctuations are well known to us in the sphere of sexual life. The sexual instinct makes itself felt in animals at certain definite times only. The more animals have become accustomed to men, have been domesticated, the less sharply defined is this periodic sexual excitement, which among wild animals leads to desperate struggles for the possession of the female. To superficial observation sexual excitability in man is not subject to fluctuation. But Havelock Ellis ^ has recently en- deavored to show that menstruation in women is analogous to the period when animals are in heat, and also that even men are not entirely free from a regular periodicity of sexual functions. Enticing as is the hypothesis that the sexual life of men is also subject to periodic fluctuations, it still requires further examination and proof. Far more justifiable is the assumption that menstruation is an abortive expression of sexual excite- ment and that it still proves today to how great an extent in the realm of sexual functions periodicity is preserved. This is also shown by experience with some insane persons; during menstruation, also often at the time when it is expected but does not occur, irritabiUty in general, and sexual excitability in particular, increase. The establishment of physiological wave-movements in the life of women ^ surely permits us to assume a similar cause for the proved fluctuations in psychic balance which we found in ' Havelock Ellis, " Geschlechtstrieb und Schamgefuhl." 2d ed., Wiirz- burg, R. Stubers Verlag, 1901. ^ AugtLst Hegar, "Zur Frage der sogenannten Menstruationspsychosen " (Allg. Zeitschrift f. Psych.. LVIII, 357) ; and R. Wallenberg, "Die forensisch- psychlatrische Bedeutung des Menstruationsvorganges" (MSchrKrimPsych., II, 36). §3] CRIME AND SEASON 25 the suicides, and for the increase in sexual excitement shown by the multipHed conceptions and offenses against chastity that occur in the spring. Accordingly, we may express the surmise that the decrease and increase of the sexual instinct, which embrace all the modes of sexual gratification, from con- jugal sexual intercourse to brutal attacks on children, corre- spond, though in a much weaker and altered form, to "heat" in animals. For the commission of sexual crimes this view is of so much more importance, because all other explanations are inade- quate. The simplest explanation of the phenomenon, and the one that first suggests itself, is, that the season multiplies the opportunity. For this reason Gross ^ flatly rejects my view. "In summer people spend much more time outdoors, individuals are found alone much oftener than in winter, when in their houses; work in the fields, walks and other out- door activities, offer numerous occasions for two persons to be alone, and interruptions are much less to be feared. Cries for help (rape) are much less effectual outdoors than in the house." It must be admitted that this is true. But even taking into consideration the excessive drinking that goes on in summer and the increased external warmth, all these co- effective and favorable causes still leave the question unan- swered, why the number of crimes decreases so rapidly in August and September although at that time the external conditions would rather facilitate the commission of offenses. Gross adds further, in refutation: "Any expert could confirm the statement that an incomparably greater number of sexual crimes are committed outdoors than in the house." In 1903, of 10,226 punishable acts against §§ 176-179 (rape and as- saults on children), 8856 (= 87%) were against § 176. Thus we see that this crime determines in the main the annual » Hans Gross, "Arch- Krim. Anthr.," XII, 370. 26 THE SOCL\L CAUSES OF CRIME [§ 3 curve. Of 106 persons who were convicted in accordance with § 176/ 62 had made their attacks on children in the house, 35 outdoors, and 9 both indoors and out. There were 173 separate acts committed indoors, as against 54 outdoors. Hence we see that the multipHcation of opportunity does not weigh as heavily as one would suppose at the first glance. There remains scarcely another supposition than the one discussed. The psychological application of the fact itself is of course independent of the attempted explanation. Whether the latter be right or not — we are all subject to an unusual in- crease in sexual excitability in the spring without being con- scious of it. With the realization of this fact, we gain an insight into motives which, unlike intelligence or proved brutality, and general criminal tendency, are not recognizable in the individual act. Infanticide, the murder of the illegitimate child during or directly after its birth (§ 217, Penal Code), is most fre- quent in the months of February and March. There are 127 cases in each of these months — a number approached only in April and May — as against 80 to 95 in the period from July to January. Births in February, March, and April cor- respond to the conceptions in May, June, and July. Here too, then, the increase in sexual excitement is indirectly felt. It is interesting to find that the desire to get rid of the un- wished-for child is apparently much more closely connected with the number of births in the month than with the thought of how the child is to be provided for. A reason advanced in favor of a milder sentence for infanti- cide was based on the assumption of a desperate frame of mind, a mixture of helplessness, shame, remorse, pain, and worry 1 Asckaffenburg, "Zur Psychologic der Sittlichkeitsverbrecher" (MSchr- KrimPsych., II. 399). §3] CRIME AND SEASON 27 about the future. The figures of the statistics show that the immediate care, at least, has no great influence; otherwise, in the times of need, that is, in the winter months, in which, in addition to all else, there is frequently loss of employment, there would be a greater proportion of infanticides. Instead of this, the number stands in the most direct relation to the number of births, so that one is almost tempted to say: among the same number of mothers of illegitimate children there is always approximately the same number who forcibly rid themselves of their children. A number of other offenses show a curve similar to that of the sexual crimes: simple assault and battery (134), aggravated assault and battery (133), coercion and threats (132), in- sult (122), resisting officers (117), breach of the peace (110). All exceed the monthly average of 100, some of them con- siderably, as the figures in parentheses show. The curve rises steadily till the highest point is reached, in August, then follows a rapid descent, and the minimum is touched in December or January. The months from November till April are, without exception, below the average. The simi- larity of all these curves (compare Plate I), which follow the course of the curve indicating sexual crimes, though about two months later, is so striking that we are compelled to as- sume that the same causes underlie them all, though the legal classification of these crimes is quite different, owing to the multifariousness of the legal rights that are infringed. The manner of commission, brutal violence and revolt against authority, is common to them all. Their course follows that of the mean temperature. Hence it would be daring to exclude altogether the influence of ex- ternal warmth as a cause of the movements of these crimes; but I am more inclined to believe in the indirect effect of the rise in temperature. In summer it facilitates intercourse 28 THE SOCIAL CAUSES OF CRIME [§ 3 with the outside world, increases and enlarges the points of social contact. The danger of conflicts is thus also augmented. Incomes are increased, expenses reduced, and opportunities to spend money in summer are not lacking. The presentation of a new flag, the opening of a new club-house, the unveiling of a monument, the anniversary of a foundation, birthdays and family anniversaries, harvest and church festivals, and other occasions are celebrated. Each of these means alcohoHc excesses, a danger that, in any case, the summer heat entails. The part that drinking plays precisely in the above-mentioned crimes will have to be fully dealt with later. It must suffice here to point out the connection between the increase in brutal crimes and summer festivities. Offenses against property present an entirely different as- pect, malicious mischief alone forming an exception. The latter in its origin is related to assault and battery, and its course is consequently similar to the latter, although the differences between summer and winter are somewhat less pronounced. Theft and fraud, on the contrary, never reach the daily average of 100 from March to September. But, from then on, there is a rapid increase in their frequency, which continues through the whole winter (Plate II). The explanation of this phenomenon is much less difficult to find than in the case of the sexual crimes. With the coming of spring the opportunity for employment increases, and the expenses of heat, light, and warm clothing are reduced, indeed, some of them cease entirely. In fact, it is possible temporarily to dispense with the shelter that is absolutely essential in winter. The pressure of the cold months is relieved. Those who do not want to work, and among them are many who in winter would encroach upon others' property, can manage to exist as tramps on the country roads and thus disappear, if not from the criminal courts. §3] CRIME AND SEASON 29 PLATE n Chime AND Season in Germany. 1883-1892. ("Statistics of the German Empire," N. F. LXXXIII, II, pp. 82, 83.) 160% Larceny (also when repeated). §§ 242, 244. Grand larceny (also when repeated). §§ 243, 244. Fraud (also when repeated). §§ 263-265. ISOVo 140% !30% 1Z0% -o- 1 10% Cn. ^ 100% X^ ^ Si. / f 90% \ k rf ^ 11 ...^ "«>-^ ^ 7 / ^ ^ -^ 80% 70% 60% 50% 40% 30% 20% 10% 0% Jan. Feb. March April May June July Aug. Sept. Oct. Nov. Dec. 30 THE SOCIAL CAUSES OF CRIME [§4 at least from the annals of the government criminal statistics. The menace to property does not begin again until winter. The darkness of the nights in the winter season have undoubt- edly a certain significance in this connection, as being advan- tageous to burglary. Yet the chief reason for the increase must not be sought in them, as is proved by the fact that the fluctuation between summer and winter is greater in the case of small thefts than in that of large ones. With the struggle for daily bread and the hardships that hunger and cold im- pose upon the poor, their resistance against the temptation to steal is weakened. The close connection between social misery and dishonesty can only be touched on here. I will not, however, omit to point out how statistics might contribute to our knowledge of whether, and to what extent, the increase of thefts in winter is connected with the economic situation. If the outward necessity is actually the cause, those that feel it most, that is the women and children, should also show the greatest differences during the different seasons. Thus separate sta- tistics should be kept of them, and also of the cases of theft of food, which has not hitherto been done. On the other hand, certain crimes that are now included might be omitted. Abandonment, murder, manslaughter, illegal imprisonment, robbery, and others, are much too rare offenses; the effect of chance on the times when they are com- mitted may too easily lead to a false conclusion. § 4. Eace and Beligion General opinion would immediately answer in the aflBrma- tive the question whether different peoples show differences in criminal inclination. And yet this is something about which we really know very little. It must be admitted that in no §4] RACE AND RELIGION 31 other field are the diflSculties equally great, the most important being the incomparability of legislation. A classic example, and one that at the same time may serve as an instance of the possibility of making statistics support a theory, is Le- goyt's ^ table, cited by von Oettingen. According to this, from 1850 to 1860 there was one convict to every 81.9 in- habitants in Austria, and one to every 81.8 in Spain; whereas in Prussia there was one to every 22.9, and in Hanover one to every 12.8. Thus, Prussia and Hanover, the Protestant Germanic states, would make a poor showing compared with the Catholic countries. But in Hanover and Prussia the numerous cases of infringement of the forest laws were in- cluded, which Legoyt wisely fails to state. Such errors are avoidable, but not so those that are owing to direct variations in the laws. Sexual intercourse between men, for instance, is a punishable crime ^ in the Slavic and Germanic countries with the exception of Holland and, since recently, of Norway, while in the Latin countries, on the contrary, it is so only under certain conditions; criminal abortion is punished by an extreme penalty in some countries, in others it is judged most mildly; some nations regard even the attempt as punishable, others only the accomplished crime .^ To this difficulty, which lies in the definitions of the of- fenses, are added the differences in the prosecution of crime. Bodio ^ points out that in England 52 of every 100 persons accused of homicide are convicted, and 57 in Scotland, as ^ v(m Oettingen, "Die Moralstatistik in ihrer Bedeutiing fUr die Soziale- thik." 3d ed., Erlangen, 1882, p. 455. ^ Wachenfeld, " Homosexualitat und Strafgesetz," Leipzig, Dieterichsche Verlagsbuch, 1901, p. 59. ' Levnn und Breuning, loc. oil. p. 85. * Bodio, "Gli omicidii in alcuni stati d'Europa" (Bulletin de I'institut intemationale de statistique, IV, p. 205). 32 THE SOCIAL CAUSES OF CRIME [§ 4 against 92 in Germany. This difference is explained by the fact that in Great Britain the verdict of manslaughter must be unanimous, which is not the case in Germany. In a com- parative table Garofalo ^ shows that Austria has a higher criminality in aggravated assault and battery cases than Italy, and that, as regards theft, Germany exceeds his native land by more than 250%. Assuming the correctness of these figures, one is still justified in asking whether the better organization of the police and the courts, perhaps also the greater reliability of the statistics, may not explain this phe- nomenon, rather than the assumption of more brutality in Austria and less honesty in Germany. Lombroso says : ^ "In our civilized world it is much easier and less uncertain (than among savage peoples) to prove that ethnology influences criminality." This is certainly not the case. Apart from the fact that, as regards the term "race," we have not yet come to conclusive results, and further, that we no longer find unmixed races,^ the economic conditions in the different countries vary to such an extent that it is almost impossible to determine what part difference of race plays in criminality. This is not to be understood as meaning that racial peculiarities are without psychological significance; deep psychological study is not necessary to the recognition of the differences between the easily excited Italians and the de- liberate Northern Europeans, between the calm, somewhat phlegmatic, inhabitants of Lower Germany and the merry, boisterous people of the Palatinate. Also in statistics, though in other spheres than that of criminology, such differences ^ Garofalo, "La criminologie," Paris, Felix Alcan, 1895, p. 440. * Lombroso, "Die Ursachen und Bekampfung des Verbrechens," Berlin, 1902. ' Coiapa,Te Petersilie's race investigation, " Untersuchungen iiberdieKriini- nalitat in der Pravinz Sachsen," 1804, p. 69. §4] RACE AND RELIGION 33 are traceable. From this point of view a deviation is not without value. A glance at the frequency of illegitimate births in the coun- tries of Europe shows quite peculiar differences. TABLE V Illegitimate Births in Europe (After Bodio: " Movimento della popolazione," Bulletin de I'lnstitut inter- national de statistique, Rom., 1897, X, p. 118.) COUNTBIES Austria Sweden . . Denmark Hungary Germany Belgium France Scotland Norway Italy Finland Roumania Switzerland England Holland Ireland Russia (excluding Poland) . Servia States the statistics of which can scarcely be relied upon, like Servia with 1%, and Russia with 2.7%, illegitimate chil- dren, may well be omitted from our consideration. Of the others, Austria stands at the head with 14.7%, followed closely by Germany with 9.3%, while Switzerland has only 4.7%, England 4.3%, and Holland 3.1%, illegitimate births. Separate provinces in the same country differ from one another even more decidedly. In Belgium the number of 34 THE SOCIAL CAUSES OF CRBIE [§ 4 illegitimate births varies between 2.6% in Limburg and 14.6% in Brabant. In Germany the figures have remained about the same for many years (1881-1890 9.3%, 1891-1900 9.1%). In 1900 Berlin showed the highest figures, 14.9%; this is partly due to the lying-in hospitals that exist there, as in all the larger cities and university towns. Bavaria, on the right of the Rhine, with 14.3%, is not far behind the capital; it must be admitted that in Bavaria marriage is made somewhat difficult by legislation, yet this cannot be the chief cause, as the Palatinate has only 6.2% of illegitimate births. The minimum number, 2.7%, is found in Westphalia. Most striking of all are the differences in Austria. Accord- ing to Szarlardi,^ in Istria, of 100 children, 2.06% are of ille- gitimate origin, but in Karinthia 44.16%! Moreover, in the territories in which the number of illegitimate births is al- ready low, it seems to be growing lower still, whereas the high percentage in Karinthia, Styria, Lower and Upper Austria, continues to increase. Similar variations among different peoples and in different sections are also found in the statistics of suicide (Table VI). According to von Mayr,^ Monaco (with 301 per million in- habitants) stands, for obvious reasons, at the head of those countries that are especially menaced by suicide; then follows, at no great distance, Denmark with 255 cases, while Italy has only 49, Russia 32, Spain 24, and Bosnia with Herzegovina only 6. Morselli's ^ investigations show that the Germanic race is especially inclined to suicide and, of its sub-divisions, particularly the Northern Germans, while the Slavs and the Western Latin peoples (Spaniards, Central and Southern Italians) show but a slight tendency in that direction. The ^ Szalardi, "Der gegenwartige Stand des Pindelwesens in Enropa," 1896. 2 G. von Mayr, "Der Selbstmord" (Allg. statist. Archiv, 1897, p. 720). * MoTseUi, loc. cit. §4] RACE AND RELIGION 35 differences within the same country are also most character- istic. From 1896 to 1900, in Coburg-Gotha 420 persons per million inhabitants killed themselves, in Prussia 1891 to 1900, 319 in Schleswig-Holstein, 307 in Saxony, while the average for the whole of Germany was only 209; Westphalia and Posen showed the lowest figures, 105 and 91. TABLE VI SinCIDES IN THE CoUNTRIEa OP EuROPE (After von Mayr: "Der Selbstmord" Allg. statist. Archiv, 1896, p. 722.) Number of suicides per 1,000,000 inhabitants. Countries Monaco Denmark Switzerland Germany France Austria Belgium Sweden Hungary, excl. Croatia and Slavonia England and Wales Norway Scotland The Netherlands Croatia-Slavonia Lichtenstein Italy Roumania Finland Servia Russia Luxemburg Spain Ireland Bosnia and Herzegovina 1881-1890 301 255 227 209 207 161 114 107 96 77 68 55 55 55 53 49 41 39 38 32 28 24 23 6 Not for a moment would I seek to explain these peculiar variations in the illegitimate births and suicides by racial differences alone. Religious and economic reasons are also 36 THE SOCIAL CAUSES OF CRIME [§ 4 of equal importance with legislative ones, as Sweden proves. But, without forcing the facts, we cannot exclude the influence of racial characteristics altogether. This is not the place to trace it out in detail, as it would merely serve to show that eth- nological difiPerences are of psychological importance. At first sight the Catholic countries seem to make a better showing than the Protestant ones, but, although the priest's advice may aid many a Catholic in suppressing his thoughts of suicide, religion is nevertheless not determinative, still less is it a "measure of the culture and moral strength of a people"; for, as Gaupp ^ rightly emphasizes, the high suicide figures of France, compared with the low ones of England, show that the causes are far more complicated. I must forego the enticing task of comparing in a similar way the criminality of the different countries, owing to the technical difficulties of which I have spoken. At present the necessary statistical basis is lacking to such an extent that it is scarcely possible to get beyond surmises. The attempt may, however, be made to contrast the different sections of the same country. Here too, however, we find certain limitations. In order to find the racial peculiarities, we should be obliged to inquire the birthplace of the perpetrator of every crime, and even that knowledge would not prove to what race he belonged. Statistics as a rule take into consideration only the place where the crime is committed, and, as I believe, rightly. First, because, as the criminal statistics of the German Em- pire have proved : ^ " the place where the crime is committed and the place of residence are the same, except in an insig- nificant fraction of the crimes committed"; and then, because the social causes are more important than the individual ones. The importance of considering separately the place where 1 Gaupp, "t)ber den Selbstmord," Munich, 1910. 2 N. F. CXXI, II. p. 26. §4] RACE AND RELIGION 37 the crime was committed and the birthplace of the criminal must, however, certainly not be undervalued; in some cases such a separation may serve to explain certain striking phe- nomena. After making such an investigation, Joly ^ found no change in the twenty departments that were criminally best and the twenty that were criminally worst in France; the order of rank remained the same, whether he made the birthplace or the place where the crime was committed the basis of his classification. Corsica, however, showed the highest number within the country, whereas the Corsicans living away from the island occupied only the sixty-fifth place. From this, Joly concluded that the social milieu of Corsica, and not the racial characteristics of the Corsicans themselves, was the cause of the greater inclination towards crime on the island. With this view I cannot agree. While property is seldom endangered in Corsica, and then generally by foreigners, the principal crime of the Corsicans is murder, above all from mo- tives of revenge. For every murder committed in France (calculated according to the present population) there are 11 in Corsica. In spite of all the efforts of the French govern- ment, the blood feud has not quite died out in Corsica, and at the time of Joly's investigations it was in a flourishing state. The Corsican who is living away from his home and from family quarrels lacks this powerful incentive to murder. But in the country itself the effect of the vendetta is still that of a folk-custom. And such customs, especially when they appear in so peculiar a way and are so deeply rooted, have for their deepest source racial characteristics. This view is borne out by the varying distribution of the vendetta in Corsica itself. In some of the districts where it centres the necessity of defending oneself against attack, or ^ Joly, "La France criminelle," Paris, Cerf, 1889. 125531 38 THE SOCIAL CAUSES OF CRIME [§4 of being able to escape into the woods, has actually deter- mined the type of house architecture there. Some of the houses in Sartena, particularly in Bonifacio, resemble little forts, as I have had occasion to see myself. On the other hand, the east coast of the island, where the population is mixed with Italian immigrants, and Calvi on the west coast, which was populated by the Greeks, have remained free from the custom of blood feuds. A very instructive work is that of Niceforo ^ on the crim- inality of Sardinia. It may also serve as a model for further investigations, for the author made a special territory (in which the population received little increase from outside) the subject of his research, and examined on the spot the ele- ments which composed the people, and studied their life and customs. Sardinia has a population that is extremely dis- posed to crime. Murder and manslaughter, for instance, are fourteen times more frequent there than in the best province of Italy, Lombardy. More important still, however, are the characteristic differences of the separate smaller districts on the island. In two adjoining districts the number of cases of robbery and extortion is absolutely different; in Nuoro there are 67.45 such crimes per million inhabitants; in Sassari, 11.92; whereas in Venice there are only 3.13. Niceforo positively establishes the existence of a "zona delinquente" on the island. The population of this criminal territory is descended from the Mediterranean race of Sergi, which at the same time has its home in Asia Minor, Northern Africa, Spain, and Southern Italy, while in the rest of Sardinia the Celtic race predominates. Assuming the statements to be correct — and I must emphasize that the work impresses me as reliable — we should have here a clear proof of the importance of descent. ^ Niceforo, "La delinquenza in Sardegna," Palermo, 1897. §4] RACE AND RELIGION 39 Beurle ^ has collected and classified some interesting figures from the Austrian criminal statistics. In ten districts of the circuit court, Bnix with 94%, three of them with from 82-91%, German population, there were 475 cases of theft per hundred thousand inhabitants; in the district of Laun, with 97% Czechs, there were 1030, In the Budweis circuit there are six districts where from 87 to 99% of the inhabitants are Germans, in the other districts not more than 52%, in some less than 10%, are Germans, In the German districts there were 524 cases of theft, as against 951 in the others. The same thing is shown in Table VII. TABLE VII 1879-1883 PEB 100,000 Persons of Punish- able Age thebe webe All Chimes Theft 114 Aggrava- ted As- sault AND Battery Other Crimes 1882 Theft 1882 Assault AND Battery (a) In districts chiefly German . 204 19 71 518 219 (b) In other districts 224 129 34 61 669 568 Pleasing as is the showing of the German population compared with the Slavic, it would yet be a mistake to draw far-reaching conclusions from it. Herz,^ too, found, in the different states of Austria, fewer cases of theft in the German parts than in those where Germans are in the minority; and the same phenomenon appears in the figures that Kurella ^ has cited, according to which the Baltic Provinces are favor- ably distinguished from the Russian ones. Some of the figures used, however, embrace too short a period of time; moreover, ' Beurle, "Einige Ergebnisse der osterreichischen Kriminaistatistik " (ZStW. VIII. 325). ^ Herz, "Die Kriminalitat in den osterreichischen Kronlandern" (MSchr. KrimPsych. L 551). ' Kurella, " Naturgeschichte des Verbrechens," Stuttgart, Ferdinand Enke, 1893. p. 157. 40 THE SOCIAL CAUSES OF CRIME [§ 4 educational and economic influences must be considered which, perhaps, would sooner lead to an understanding of the phenomenon than does knowledge of the diflFerence in race. Our interest centres, of course, mainly on Germany itself. The reliability of the statistical proofs, on the one hand, and our accurate knowledge of the people's mode of life and of the economic and social situation, on the other, give us the right to examine our home conditions with a view to ascertaining whether, in our country, racial descent is of any significance. It is to be regretted that only in the case of a few crimes has the statistical department ascertained the place of the deed, and then brought the figures into relation with the population living in that particular district. This material, though lim- ited, is valuable for comparison, the more so as it embraces fully fifteen years. A period of this length excludes the danger of chance and temporary influences on criminality. Such a temporary increase in the number of convictions in a district took place, for instance, during the construction of the North- east Canal, owing to the large number of laborers that were brought into a small and usually quiet section. Such errors can be avoided only by collecting statistics covering longer periods of time. The results of the calculations mentioned are given in volume 126 of the "Statistik des Deutschen Reiches," in large tables and five maps. From the tables I reproduce in Table VIII the figures for the provinces and government districts, or circuits only, omitting the small jurisdictions. This in- volves the loss of many important details, but it was essential first to establish the main facts.^ 1 Recently several monographs have appeared dealing with the criminal- ity of small districts: Weidemann, "Die Ursachen der Kriminalitat im Herzog- tum Sachsen-Meiningen "; Blau, " Kriminalstatistische Untersuchung der Kreise Marienwerder mid Thorn"; Petersilie, " Untersuchmigen iiber die Kriminalitat in der Provinz Sachsen." Of these works, the last mentioned has §4] RACE AND RELIGION 41 TABLE Vni Place op the Chimes Committed in Germany from 1883 to 1902 Average number during 1883-1902, per 100,000 civilians of punishable age. All Chimes Resist- Feloni- ous Aggrava- ted As- sault AND PlACE AGAINST National ing Officebs, Assault AND Theft FBAmj Laws ETC. Batteby Batteby Gov. Dist. Kijnigsberg 1526 51 1.84 325 36 245 " " Gumbinnen 1746 35 2.22 419 43 243 " " Danzig . . 1541 77 3.92 348 38 287 " " Marienwerder 1524 42 2.59 393 32 301 City of Berlin .... 1408 47 0.53 249 69 112 Gov. Dist. Potsdam . 1127 47 0.94 202 39 167 " " Frankfort 957 33 1.24 193 34 144 " Stettin . 1214 49 2.16 199 32 213 " " Koslin . . 938 25 2.63 179 22 209 " " Stralsund 867 26 0.96 170 29 138 " " Posen . . 1424 87 1.97 334 31 273 " " Bromberg 1842 46 3.32 464 36 358 " " Breslau 1312 59 0.97 243 54 178 " " Liegnitz . 871 28 0.74 189 49 89 " " Oppeln 1860 72 1.75 317 46 365 " " Magdeburg 1130 43 1.22 188 43 179 " " Merseburg 1054 31 0.78 208 44 142 " Erfurt . . 946 32 0.78 167 47 119 *' " Schleswig 782 54 0.81 138 35 91 " " Hanover . 1096 36 1.03 168 59 154 " " Hildesheim 874 21 0.54 172 46 136 " " Liineburg 847 22 1.11 147 42 129 " Stade . . 848 23 0.92 126 44 152 " " Osnabriick 649 16 1.19 81 24 113 " " Aurich 699 19 1.03 121 38 298 " " Mtinster . 671 33 1.73 95 24 147 " " Minden . 514 18 1.44 79 22 99 " " Arnsberg . 971 33 3.15 138 32 233 " Cassel . . 801 25 1.12 148 29 136 " " Wiesbaden 963 52 1.19 140 46 146 " " Coblenz . 689 29 1.36 99 27 154 " " Dusseldorf 917 40 2.32 139 33 189 " " Cologne . 1003 60 1.59 137 39 199 " Trier . . 811 28 1.77 116 26 224 " " Aachen 718 36 1.01 98 26 148 " " Sigmaringen 589 22 0.42 86 35 115 Prussia 1111 109 1.56 219 S9 188 Gov. Dist. Upper Bavaria 1528 39 3.38 244 109 358 " " Lower 1484 32 6.28 232 72 441 " The Palatinate 1657 36 2.17 187 63 517 " " Upper " 1253 27 3.52 213 64 331 " " UpperFranconia 1164 SO 2.25 189 51 302 " " Central " 1326 87 2.25 221 81 315 " " Lower " 1104 31 1.25 164 67 261 " " Swabia . . . 1118 23 1.93 185 89 238 Bavaria 1380 S3 2.92 209 77 349 Circuit Dresden . . 966 63 0.3 224 62 66 " Leipzig . . . 976 82 0.32 243 63 78 " Zwiclcau . . 921 59 0.45 179 48 100 " Bautzen . . 642 30 0.24 163 41 67 Saxony 919 58 0.3.'-. 205 53 82 42 THE SOCIAL CAUSES OF CRIME TABLE VIII — Continued [§4 Place All Chimes AGAINST National Laws Resist- ing Officers, Etc. Feloni- ous Assault and Battery Theft Fraud Aggrava- ted As- sault AND Battebt Neckar Circuit Schwarzwald Circuit . . Salpt Circuit Danube Circuit .... Wurttemberg 1021 945 801 994 948 52 41 28 42 43 1.71 1.86 1.44 1.41 1.61 163 124 151 152 179 52 47 52 71 56 183 228 133 146 175 District Constance . . . " Freiburg .... " Karlsruhe. . . . " Mannheim . . . Baden 747 832 1014 1211 973 16 25 36 37 29 1.38 1.59 1.86 1.88 1.72 132 146 173 187 166 55 55 59 66 59 133 176 256 316 229 Prov. Starkenburg . . . " Upper Hesse . . . " Rheinhessen . . . Hesse 821 769 1087 889 27 16 27 24 1.46 1.22 1.61 1.44 123 107 151 118 37 31 61 45 267 169 269 220 Mecklenburg -Schwerin Saxe-Weimar Mecklenburg-Strelitz . 823 841 834 26 31 25 1.01 0.92 1.17 169 216 194 40 61 27 142 77 129 Dukedom of Oldenburg . Principality of Liibeck Principality of Birkenfeld Oldenburg 753 1258 789 806 11 34 29 15 1.77 1.41 1.22 1.68 131 250 140 144 48 67 29 50 133 153 158 137 Brunswick Saxe-Meiningen .... Saxe-Altenburg .... Saxe-Coburg-Gotha . . Anhalt Schwarzburg-Sonders- hausen Schwarzburg-Rudolstadt Waldeck Reuss Older Line . . . Reuss Younger Line . . Schaumburg-Lippe . . Lippe Liibeck Bremen Hamburg Dist. Lower Alsace . . " Upper Alsace . . " Lorraine . . Alsace Lorraine .... 1059 1174 820 870 1126 1238 1445 439 901 1018 419 568 991 1732 1459 802 899 751 816 23 38 17 27 39 29 61 11 44 32 13 13 53 73 99 23 29 22 22 0.78 1.35 0.36 1.21 1.33 0.47 1.06 0.89 0.43 0.50 2.02 0.46 1.39 0.91 0.60 1.47 1.94 1.25 1.54 211 189 233 169 217 349 352 97 221 267 72 135 206 297 265 113 134 105 117 51 48 53 44 45 56 75 26 69 80 27 41 66 113 77 28 32 35 31 136 191 88 143 165 152 215 491 114 93 62 66 95 227 104 233 233 176 215 German Empire . . . 1104 41 1.58 201 47 196 From the " Statistik des Deutschen Reiches," Vol. 155, III. §4] RACE AND RELIGION 43 A glance at the maps, which I did not think it necessary to reproduce, shows, first of all, that the whole east of Germany, as well as Upper and Lower Bavaria and the Palatinate, has a large number of convictions. While in the whole of Ger- many there were 1104 convicted persons to every 100,000 persons of punishable age, the number of such convicts in the government districts was: Oppeln 1860, Bromberg 1842, Gumbinnen 1746, Bremen 1732, the Palatinate 1657, Danzig 1541, Upper Bavaria 1528, Konigsberg 1526, Marienwerder 1522, Lower Bavaria 1484, Posen 1424, and Mannheim 1211. On the other hand, Schaumburg-Lippe had only 419, and Waldeck 439 convictions. Waldeck offers an excellent op- portunity for comparison with a section containing approxi- mately the same number of inhabitants. In 1890 Waldeck had a population of 38,986, Pirmasens 38,327. In Waldeck there were annually 172 convictions, while in Pirmasens there were 885 ! A deeper insight into the causes of these differences than can be obtained from a consideration of the criminality as a whole is afforded by an examination of the separate crimes. Of these, four have been chosen, and their statistics given: resistance to officers, aggravated assault and battery, theft, and fraud. Two of these crimes, theft and aggravated assault and battery, are characteristic of the general criminal physi- ognomy of a district, simply because they are much commoner than any others. Nearly half of all convictions are for these two offenses. During fifteen years of observation, among 100,000 pun- ishable persons, aggravated assault and battery led to con- best overcome the difficulties of the methodology spoken of by Dochow "tlber Kriminalstatistische Einzeluntersuchungen" (MSchrKrimPsych. I, 643). Yet we cannot expect really valuable results until a few more similar investi- gations shall make it possible to compare the practicability of the method and the validity of the conclusions. 44 THE SOCIAL CAUSES OF CREME [§ 4 viction 196 times. In comparing this crime with the whole criminality, we are at once struck by the equality with which it is distributed, though, indeed, Bavaria and the Palatinate appear to be somewhat more heavily burdened in this respect. Its centre is the Palatinate with 517 convictions, then follows Lower Bavaria with 441, Bromberg with 358, Mannheim with 316. The district of Dresden, on the other hand, shows only 66, and Schaumburg-Lippe 62. Here, too, Waldeck stands in strong contrast to Pirmasens, which is at the very top of the list. Thus we see that aggravated assault and battery is concen- trated at three points: in Bromberg, in the Palatinate, and in Southeastern Bavaria. Round these three centres are grouped the neighboring districts, scarcely behind them in this respect. The explanation of this geographical distribution immediately suggests itself; the three centres of this brutal crime are also / the three centres of alcoholic indulgence in its various forms: in the east, spirits, in Bavaria, beer, and in the Palatinate, wine. This is undoubtedly the explanation of the geographi- cal distribution. The connection between aggravated assault and battery and alcoholic indulgence is important enough to demand de- tailed treatment. Let me say at the outset that the danger- ousness of the different alcoholic drinks does not correspond to the generally accepted opinion. If we might determine the degree of seriousness from the number of the crimes, the se- quence would be: wine, beer, spirits. Wlassak,^ however, in his investigation of the question in Moravian-Ostrau, found another order: beer, wine, spirits; which more nearly corre- sponds to the quantity of alcohol contained in the different beverages. In any case, we can certainly agree with Foldes^ 1 Wlassak, "Der Alkoholismus im Gebiete von Mahrisch-Ostrau." Bericht auf dem VIII. Intemationalen Kongress gegen den Alkoholismus. * Foldes, "Einige Ergebnisse der neueren Kriminalstatistik" (ZStW. XI, 635). §4] RACE AND RELIGION 45 in thinking that the kind of beverage is unimportant, as com- pared with the eflBcacy of the alcohol it contains. On the occasion of a lecture that I gave in this connection, my state- ments were met with the argument that just the centre of aggravated assault and battery, Pirmasens, refuted my view, little wine being consumed there owing to the poverty of the inhabitants. On making inquiries, I found this to be the case, but learned at the same time that the consumption of spirits in Pirmasen is excessive. In the districts of Mann- heim and Heidelberg, with which I am much more familiar, I can assert with assurance that alcohol in all its forms plays the principal, if not the only, part in the extremely numer- ous cases of aggravated assault and battery that occur there. It is true that the inhabitants of the Palatinate have the reputation of being lively and irritable people, "screechers" ("Kjeischer"), as they are popularly termed. Unfortunately, this excitability shows itself less in words than in deeds; in the number of insults they do not stand much above the average. Moreover, it is very possible that their boisterous demeanor is a result of the regular use of alcohol, like the "fighting lust" of the Upper Bavarians, which, under the influence of Sunday and holiday drinking bouts, has become a recognized folk-custom. It is well known that, in spite of all the efforts that are made, we have not thoroughly succeeded in ascertaining ac- curately the amount of local alcohol consumption. It is quite conceivable that local conditions occasionally, and as an ex- ception, weaken the usual effect of drinking on criminality, as, for instance, when a scattered population is less exposed to the danger of friction. In general, however, in our own country, we may safely assume a direct connection between the geographical distribution of aggravated assault and bat- tery and the custom of indulgence in alcohol. 46 THE SOCIAL CAUSES OF CRIME [§ 4 Such a connection also exists in the case of assaulting and resisting an officer, which, for the most part, takes place when a policeman arrests a drunkard. But, besides this, other causal factors must be taken into consideration. Boundary sections where the inhabitants speak different languages, industrial districts where there is keen, well-founded, or groundless dis- satisfaction among the workmen, lockouts and strikes, large cities with their rowdies; all these have a permanent influence on the frequency of assaults and attacks on the representatives of government authority. This is especially true of all large ports, in which the refuse of all the countries of the world comes together. On shore the seamen, especially those of subordinate rank, such as stokers and trimmers, seek to make up to themselves for the harsh and implacable discipline they experience on board. In a few days, often in a few hours, the entire earnings of a voyage are transferred, and find their way into the hands of saloon-keepers and prostitutes, and intoxication among these rough crowds leads most easily to noisy street scenes. For this reason it is not surprising that in Altona, Hamburg's great amusement resort, the number of convictions, 19 per 10,000 inhabitants, so greatly exceeds the average for all Germany, 4. Many a striking phenomenon, as, for instance, the frequency of this offense in the district of Potsdam (8.6) as against Berlin (4.9), is probably easier for the inhabitants of the place to explain than for those who have no knowledge of the local conditions. I believe that offenses against officers in particu- lar are exclusively, or nearly exclusively, owing to external causes, among which I include the composition of the popula- tion that is due to occupation, not to descent. In the distribution of petit and grand larceny, the east again strongly predominates. All the government districts on the Russian frontier exceed the average of the whole §4] RACE AND RELIGION 47 of Germany (26.9 per 10,000 persons of punishable age), in some cases by a large number. At the head of the government districts stand Bromberg with 62.4, Gumbinnen with 56.4, Marienwerder with 51.6, followed, between 50 and 40, by Danzig, Posen, and Oppeln; outside of the Prussian domains, more than forty thefts occur in Bremen (41.6), Schwarzburg- Sondershausen (46), and Schwarzburg-Rudolstadt (45.4) only. In smaller administrative districts even greater variation is noticeable; the district of Heinsberg (Rhine Province) with 4 stands contrasted to Johannisburg (East Prussia) with 102.8. Except for scattered interspersions, the west is rela- tively free from theft; the figures for whole provinces, as, for instance, Schleswig, Hanover, Westphalia, Hesse-Nassau, Rheinland, the part of Hesse that lies on the right of the Rhine, and Alsace and Lorraine, remain below 20. In the smaller districts, greater numbers always appear where in- dustries are strongly developed. It may be that the tempting opportunity to take possession of raw material and finished products, as well as fuel, is responsible for this. That explana- tion, however, is not applicable to those wide sections in the east that are mainly agricultural in character. The majority of the day-laborers in the east live on a frightfully simple and monotonous diet, in miserable dwellings, and work for in- significant wages. In the industrial districts of the east, too, wages, even in proportion to the lower cost of food there, are much lower than in the west. The economic misery is un- doubtedly partly to blame for the numerous cases of theft in the east, though of course not entirely. The conscience of a rather unintelligent population, living under the poorest con- ditions, easily grows lax as regards the difference between mine and thine; and when once the sharp dividing line between these two is no longer respected, actual necessity is not needed as an incentive to steal. On the other hand, it cannot surprise 48 THE SOCIAL CAUSES OF CRIME [§ 4 us that the prosperous Westphalians and Rhinelanders seldom lay hands on others' property — except m the large cities and industrial centres. This is not intended, however, to be an assertion that the influence of Slavic blood, which our statis- tical department makes partly responsible for the high degree of criminality in the east (Vol. CXLVI, II, 58), is without significance. But before such influence can be accepted as a fact, it must be proved by detailed investigations, and the same is true of von Rohden's ^ opinion, that the "aftermath of serfdom which prevented the development of the moral personality" is an important factor. A remarkable contrast to this condition is presented by the geographical distribution of fraud. The whole of the east, which has been so heavily burdened with the crimes just dis- cussed, — as well as the north and west, — shows a very small number of convictions for fraud, with the exception of theHansa Towns and Berlin. They mount up, on the other hand, in Saxony, Thiiringen, the Palatinate, Baden, Wurttemberg, and Bavaria. Bremen with 12.3, has more than double the aver- age for all Germany (5.1), and Mannheim (11.3) and Upper Bavaria (11.3) are not far behind it. The explanation of this phenomenon is very difficult, and becomes even more so when we go back to the small districts. The maximum (35.4) is reached in the city circuit of Traunstein,^ the minimum (0.63) in Liibeck (Westphalia). Seuffert ^ has given a very important explanation in con- nection with Traunstein. He shows that, during the years » von Rohden, "Von den so2dalen Motiven des Verbrechens" (Zeitschrift fiir Sozialwissenschaft, VII, 523). 2 On the map the district of Ulm (Wurttemberg) is given as ha\ing the maximum 16.3; but on page II, 57, Traunstein with 35.4 is given as having the highest number. This discrepancy is owing to the fact that on the map the city and the district are given as one. 3 Loc. cit. p. 54. §4] RACE AND RELIGION 49 from 1883 to 1887, it was thus heavily burdened (42.1), while its average from 1888 to 1892 was only 21.2. He learned that from 7000 to 8000 young workmen, especially Austrians, pass through Traunstein annually. In 1883 the practice of supplying them with food (" Natural verpflegung") was established, but might only be made use of twice a year. In order to receive this aid oftener, many of the youths altered the dates on their papers. In most cases the offense was simply leaving a public-house without paying the bill. Seuff ert assumes that a similar explanation applies to the other Upper Bavarian towns, and concludes: "A large percentage of the high figures for fraud in Southern Germany should be laid at the doors, not of the permanent, but of the fluctuating, population." Unfortunately I cannot agree with him in this effort to save the honor of the country. First, because the "falsification of journeymen's books and identification papers" is not punishable as fraud, but as an offense against § 363 of the Penal Code, and hence does not appear in the statistics. Secondly, because further observation has shown that the temporary improvement has not been maintained, and now, after a period of fifteen years, the number (35.4) still exceeds sevenfold the average of the Empire. Further, because the vicinity of Traunstein (district T), where the falsification of papers in order to obtain provisions from the town would be useless, still exceeds by ten the average of the whole country in convictions for fraud. In any case, a glance at the map shows us that the great predominance of fraud all over the south of Germany cannot be attributed to the fluctuating population. Fraud, too, is influenced by economic conditions, as the heavy increase during the winter months proves. But the connection between the two is not as close as it is in the case 50 THE SOCIAL CAUSES OF CRIME [§ 4 of larceny. Beurle succeeded in establishing the fact that, in general, 89% of all criminals are without any means what- ever, of the thieves even 94%, while only 0.1% might be called prosperous. Fraud, however, is committed by 1.4% of well- to-do persons and by only 79% of persons without means. I believe that two factors are at the root of the geographi- cal distribution, the first being occupation. In the country, fraud is more difficult than in the city, and the temptation rarer than in business life. The second factor lies in the greater intelligence that the perpetration of a fraud requires. As a rule it needs much more intelligence, above all, more delibera- tion, to swindle a man than to steal his property. Herz ^ also holds this view, and believes that one of the causes of the preponderance of fraud cases in the German jurisdictions over those in the Slavic jurisdictions (4.7 : 25 to 10,000 inhabit- ants) is the higher degree of intelligence and education among the Germans. Yet neither the crowding together of people in the city, and city occupations, nor greater intelligence alone, affords an adequate explanation of the frequency of fraud in the south and in Saxony and Thiiringen. Otherwise the Rhine Provinces and Westphalia would show a greater number of convictions. Hence, everything compels us to see in this phenomenon a character trait of the population in those sections in which the crime predominates. This throws a peculiar light on the proverbial honesty of the Swabians. But, just in order to refute the correctness of this reproach, which of course applies to an even greater extent to Bremen, Upper Bavaria, and Mannheim, it would be desirable to extend the statistical examination during a number of years, so that it would also include the fact whether, in the case of fraud, the birthplace of the criminal, and the place where the crime * Loc. cit. p. 557. §4] RACE AND RELIGION 51 is committed, differ more frequently than in the case of other crimes. Further, consideration should be given to the doubt that Hans Gross ^ has expressed, as to whether fraud is to be regarded as a psychologically uniform offense at all. The results of a geographical consideration are meager as far as differences of race are concerned. Only in the contrast between the frequency of theft and fraud in the east and south is it perhaps possible to see a sign of such differences; I pur- posely say "perhaps," for no absolutely certain proof is to be found in the material at hand. One thing, however, we may definitely assert, that the possibly existing race differences exert an insignificant influence, as compared with the powerful social factors, prosperity and folk-customs. From the fact that the east is strongly represented in the whole criminality of the country, we should not conclude that the state of mo- rality there is low, but rather that the economic conditions are bad. The negative result of the race investigation is highly pleas- ing to the criminologist. Race transformation goes on slowly for centuries and can scarcely be influenced from outside by artificial means; whereas we possess weapons enough against evil economic conditions and the abuse of alcohol. Here we may well go on to the influence of religious denom- ination. Religion, as such, does indeed appear to be entirely without significance in the criminal statistics, for we merely ascertain to which of the existing denominations an individual belongs, but not whether his membership is more than a purely nominal one, not the degree of his religious belief, not the influence of religious teachings on his thought and actions. It might almost be aflSrmed that the commission of any seri- ous crime is a proof that the perpetrator has lost his touch with his religion. ' Loc. cit. p. 371. 52 THE SOCIAL CAUSES OF CRIME [§ 4 But, if we examine the statistics, we are confronted by dif- ferences of such magnitude that we are not justified in passing them over in silence. Especially is this true because, in the quarrels among the denominations, the kind and number of convictions are quoted to show the inferiority of the opposing sect.^ During the years 1892-1901, the average number of persons convicted per 100,000 civilians of the same faith was: TABLE IX 1122 Evangelical Christians 1361 Catholic Christians 1030 Jews The criminality of the Jews, with the exception of Group I in the statistics (crimes and offenses against the State, public order, and religion), is far below that of the Christians. Their predominance in Group I is mainly due to the large number of convictions among them for transgressing against the Lord's Day law. If we regard the offenses separately, we find that, for every 100 cases of usury in which Christians are the offenders, there are 1300 such offenses committed by Jews in proportion to the number of members of every denomination. In considering this fact, two things must not be forgotten: first, that con- victions for usury are very rare. During the period covered by the report, the average annual number of Jews convicted of this offense was 5. Such small figures easily lead our judgment 1 An anonymous pamphlet ("Die konfessionelle Kriminalstatistik in Wiirt- temberg," Halle, Eugen Strien, 1886, with the motto, "By their fruits ye shall know them") contains the following sentence (p. 32): "In contrast to the complaints of the Protestants of decrease in church attendance, indiflFer- ence, and lukewarmness, we see in the Catholic chiu'ch in the last forty years an unequalled growth of church life and — unfavorable moral results." §4] RACE AND RELIGION 53 astray. It is true that the small number is so constant that we cannot deny it every significance. Secondly, we must take into account the fact that usury is a specific offense of trade. From 1885 to 1889 60% of all the persons convicted of usury were engaged in trade and commercial pursuits. Accord- ing to the last statistics of occupation, of the year 1895, among 100 Jews engaged in gainful occupations, 54.56 were engaged in commercial pursuits, as against 9.64 of the entire population; that is, nearly six times as many as the proportion of Jews in the population would lead us to expect. Hence, we should compare not the number of Jews and Christians that are con- victed of usury, but the number of commercially occupied Jews and Christians. This results in a considerable decrease in the predominance of the former, though the Jews still remain in the majority. It would be a mistake to draw any far-reaching conclusion from these facts, if for no other reason than merely because most of the cases of usury do not come before the courts at all, so that the small number of convic- tions is entirely misleading. The same considerations apply to all those crimes the nature of which makes their accomplishment almost impossible ex- cept by those engaged in commercial occupations in the widest sense, such as simple and fraudulent bankruptcy, and offenses against § 147 of the trade regulations. How necessary it is to take the occupation into account, is shown by a considera- tion of the kingdom of Saxony. In 1891, 14.9% of all the fraud- ulent bankruptcies, and 23% of all the convictions for usury, occurred in that realm, whereas the percentage corresponding to the number of inhabitants would have been 7.07. The explanation of this lies in the occupations predominating in Saxony; of 1000 gainfully employed persons in 1895, 122 were engaged in trade. It may be said in passing that the percent- age of Jews in Saxony is only 0.27. 54 THE SOCIAL CAUSES OF CRIME [§4 TABLE XI Cbimes and Offenses against National Laws (Except Avoidance of Militaby Sebvice § 140 OF THE Penal Code) 1. All crimes and ofiFenses against nat. laws 2. Crimes and ofiFenses against the State, public order, and religion 3. Crimes and ofiFenses against the person . 4. Crimes and ofiFenses against property . 5. Resisting an oflBcer, etc 6. Breach of the peace 7. Violating the Lord's Day regulations . 8. Perjury 9. Rape 10. Insult 11. Aggravated assault and battery . . . 12. Petit larceny, also when repeated . . 13. Grand larceny, also when repeated . . 14. Embezzlement 15. Receiving stolen goods 16. Fraud 17. Fraudulent bankruptcy 18. Simple bankruptcy 19. Malicious mischief Convicted Pebsons 1892-1901 peb 100,000 Civilians of the Saue Religious Denomination Evangel- Catholic Jewish ICAL 1122 169 461 489 41.9 55.1 21.4 2.1 11.1 140.4 185.5 218.6 32.1 63.2 19.84 46.3 0.41 1.8 42.7 1361 164 634 659 48.1 69.7 13.4 2.1 13.0 148.1 314.1 264.1 36.2 51.5 23.47 51.8 0.27 1.3 66.1 1030 234 382 410 13.3 32.5 125.6 3.4 9.4 199.9 75.3 80.0 10.3 48.0 16.49 94.2 3.2 26.3 11.3 The number of Jews convicted of dueling is striking — three and a half times greater than it should be. According to Cron,^ 5.4% of the students at the universities in Baden, from 1889 to 1893, were Jews, while they constitute only 1.6% of the population. Hence, the number of them that are convicted of dueling is explained by the large percentage in the student body, and perhaps also by the greater frequency of serious conflicts to which their faith exposes them. All duels in which officers of the reserve are concerned are not included, as they are dealt with by court-martial. This also brings 1 "Statistik des Deutschen Reiches," N. F. LXIV, II, p. 35, and CXLVI, II, p. 60. 2 Ludu-ig Cron, "Der Zugang der Badener zu den badischen Universitaten 1869-1893," J. D. Heidelberg, 1897. §4] RACE AND RELIGION 55 about an artificial increase in the percentage of Jews as com- pared with that of Christians. Occupation does not, however, explain the high number of sentences for insult, which is still more remarkable when we consider how little the Jews are inclined to intemperance, one of the commonest causes of this offense. How often the insult is only the reaction from former irritations cannot be determined, but, whereas, in regard to the other offenses mentioned, I believe that the influence of a race peculiarity is inadequately proved, in this instance it seems to me possible that a connection exists between the offense and racial descent. The vivacity that expresses itself in gesticulation, talkative- ness, loud speech, and excitability is, as we know, much greater in the south than in the north; perhaps the large number of insults may be explained by the relationship with southern peoples, but of course this supposition, too, can hardly be proved. The same view of the importance of occupation appears in our government criminal statistics: "The high number of convictions of Jews for a series of punishable offenses is closely related to their preference for commercial occupations.^ But even if we take their occupation fully into consideration, in certain crimes, above all in simple and fraudulent bank- ruptcy, the number of convictions of Jews considerably exceeds that of Christians (1892-1901: 26.3:1.6 and 32:0.36 per 100,000 persons of the same faith). The unfavorable light thus thrown on the business conduct of many Jews is improved by the fact that the number of convicted Jews is constantly decreasing. This is not true, however, in respect to a few other crimes and offenses, chief among which are fraud, suppression and forgery of public documents, adulteration of food. Here, 1 "Statistik des Deutschen Reiches." N. F. CXLVI, II. p. 59. 56 THE SOCIAL CAUSES OF CRIME [§ 4 too, occupation may have a decisive influence, but, in any case, one thing cannot fail of recognition, that the offenses of which a larger number of Jews are convicted than their pro- portion to the total population would lead one to expect, belong to those crimes that are committed for personal, usually material, gain, and that the explanation is found partly, if not entirely, in the occupation of these people. The Jews, as has been mentioned, are not to any extent habitual frequenters of public-houses, nor do they drink to excess. Whether this restraint is due to their descent or to the effect of the voluntary and involuntary social seclusion that they have undergone, may remain undecided. Certain it is that this factor has the most favorable influence possible in the prevention of crime. The number of Jews concerned in cases of aggravated assault and battery is only one-third of what might be expected, and, as this crime is almost exclusively the consequence of alcoholic excesses, the favorable result is but natural. In general, members of small religious communities or of a scattered race that is surrounded by other races are less in- clined to deviate from the straight way. This is, in part, the effect of the greater attention that is paid to the whole conduct of life. Every crime committed by an individual in a singularly exposed circle or community is more striking and immediately leads to generalization. We all know, for in- stance, how the immoral offenses of a Catholic priest, fraud committed by a nobleman, the brutality of an army oflBcer, are seized on by all opposing parties, stripped of their char- acter as being independent of occupation and descent, and are represented as typical. This sharp criticism has its great advantages. In Prussia, for instance, between 1862 and 1864, 3.58% of the births among the Jews were illegitimate, among certain sects (Men- §4] RACE AND RELIGION 57 nonites, etc.) 3.29%, as against 10% among the rest of the population. In Austria, according to Korosi, 3.2% illegiti- mate Jewish children were born, as against 37.89% Catholic children; in Vienna from 1874 to 1878 there were 11.8% Jewish, 23.1% Protestant, and 44.2% Catholic, illegitimate births. The figures in Russia were similarly divided: 3.06% in the Greek Church, 0.22% among the Jews, 0.16% among the Mohammedans. This somewhat artificial raising of the moral plane is partly due to favorable external conditions; the closeness of union in such communities naturally leads to a much better developed system of mutual aid in poverty. This, together with the greater average prosperity of the Jews, explains the low percentage of thefts among them; in cases of petit larceny they are more than three-fourths, in cases of grand larceny about two-thirds, behind the Christians, and the same rela- tive position may be observed in some other offenses against property. Respect for the family and for the sacredness of marriage has a direct and noticeably favorable effect on criminality, as is shown by the fact that convictions for bigamy, for the abuse of a relationship of trust to commit an offense against chastity ("Unzucht unter Missbrauch eines Vertrauensver- haltnisses"), infanticide, abandonment, never occur among these people, and that convictions for incest are extremely rare. In all the remaining crimes, low criminality, or its absence altogether, may be regarded as due to the advanta- geous economic condition that has already been discussed. The same reasons, but probably strengthened by the fa- natical religiousness which is generally so highly developed among sectarians, are responsible for the rarity of convic- tions in the group classified as "other Christians," in which the government statistics, oddly enough, have included, be- 58 THE SOCIAL CAUSES OF CRIME [§ 4 sides the Mennonites, Baptists, etc., also the "Dissenters" (" Dissidenten ") . In the latest compilation no special infor- mation about this group is given. It is very diflScult to explain the great predominance of the Catholics over the Protestants in crime (Table X). An average for ten years shows their relation to be 1361 : 1122; in the main groups the Protestants predominate only in Group I (169 : 164) ; among the more important of the sub- divisions they are in the majority in embezzlement, 53.2 : 51.5, and in bankruptcy. In considering these wide variations, a connection between them and the geographical distribution immediately suggests itself. Von Scheel considers the ques- tion of religion superfluous, and explains the variations by the fact that in Northwestern and Central Germany, where the Protestant faith predominates, the inhabitants are of more phlegmatic temperament and, to some extent, more prosper- ous, while the Catholic sections embrace the uncultivated districts of Eastern Germany. In the most recently published government statistics ^ relating to religion, it is stated: "The fact that criminality among Catholics is greater is largely due to the preponderance of Catholicism in those districts of the Empire lying on its eastern border, which are partly inhabited by a Slavic population and are culturally not so highly developed, and where the greatest number of convictions occurs." But this is not entirely correct. In the eastern provinces (Eastern Prussia, Posen, and Silesia), where the criminality is so high, there are about one and a half million Catholics, whereas in the cultivated provinces of the Rhine and West- phalia there are nearly two millions. In Eastern Prussia, in fact, only 13.5% of the inhabitants are Catholics. It would also be a mistake, without further research, to hold the Slavs 1 "Statistik des Deutschen Reiches," CLXTV, II, p. 58. §4] RACE AND RELIGION 59 in the east responsible, their inclination towards crime being as yet hardly established. Those districts in which the religious denominations are mixed should afford us a better insight. The government criminal statistics ^ give us a comparison of 25 sections in which at least one-quarter of the population was either Evan- gelical or Catholic. Among these the criminality of the Evan- gelicals exceeded that of the Catholics, per 100,000 inhabitants of the same faith, by 5 in the Danube Circuit, 6 in Minden, 10 in Heidelberg, 30 in Osnobruck, 36 in Offenburg, and 86 in Karlsruhe, — six districts altogether, in which there were, on an average, 28 more convictions, with a total average for the whole of Germany of 1031. On the other hand, in the following nineteen circuits with mixed populations the Catholics committed, on an average, 150 more crimes than their share: Schwarzwald Circuit (49), Mosbach (27), Arnsberg (36), Coblenz (37), Rheinhessen (59), Dusseldorf (88), Danzig (89), Marienwerder (100), the Pa- latinate (120), Jagst Circuit (122), Starkenburg (143), Lower Alsace (166), Breslau (184), Wiesbaden (184), Oberfranken (212), Mannheim (230), Lorrach (232), Bromberg (361), Posen (423). The variation being as great as this, we cannot omit to search for the cause. Auricular confession is frequently held respon- sible, but it is a question whether there is any justification for this opinion. Persons of inferior mentality and confused minds may, indeed, consider that the performance of a pen- ance imposed by the Church lessens their responsibility to the State. This view undoubtedly does exist, but it would scarcely be possible to calculate its frequency and significance. It need not be said that such a misunderstanding of an institu- tion that is of so great importance in the Catholic Church is 1 N. F. LXIV, II, 36. 60 THE SOCIAL CAUSES OF CRIME [§ 4 not to be laid at its doors. I know several cases in which confession led to crimes being made good, either by the restora- tion of stolen property or by the criminal's giving himself up to justice. The frequency of such occurrences cannot be given in figures, but of one thing we may be certain, that confession in itself is much more calculated to repress than to further criminal tendencies. Another fact, however, decidedly deserves consideration, that the material circumstances of Catholics in general are less prosperous than those of Protestants. I have no knowledge of any accurate investigation that proves this fact throughout Germany, but in a small portion of the Empire, in Baden, the whole question has been most carefully studied. Martin Ofifenbacher ^ has been able to prove that, with few excep- tions, the Protestants in Baden fill the more remunerative positions in all occupations. In agriculture, for instance, in which more Catholics than Protestants are engaged, the lucrative branch of supplying good markets with milk, vege- tables, and fruit is largely in the hands of the latter. In industrial pursuits, the majority of the more independent work- men are Protestants; for instance, the art-craftsmen, composi- tors, printers, and photographers. In 1895 the income tax per 1000 Catholics amounted to 589.800, per 1000 Protestants to 954.900, marks. To generalize from the conditions in Baden for the whole of Germany is permissible to a certain extent, for it is known that the student bodies in Bavaria, Wurttemberg, and Prussia show the same phenomenon that is seen in Baden. Every- where a relatively small number of Catholics is found in the "Realschulen" and "Realgymnasien," a somewhat larger number in the "Gymnasien" (students of theology), but 1 Martin Offenbacher, "Konfession und soziale Schichtung," J. C. B. Mohr, Tubingen und Leipzig, 1900. § 5] CITY AND COUNTRY; OCCUPATION 61 always a smaller proportion of Catholics than we should expect. This fact, an enquiry into the cause of which does not lie within the limits of this work, assigns to the Catholics a lower place in the social and therefore, also, usually in the economic scale. With the close connection that exists between economic position and crime, this proportion brings with it the danger of coming into conflict with the law. Less importance should be attached, in my opinion, to the lack of higher education, for too little is known as yet of its influence on criminality. I must be content to point to the possibility of a connection between the greater criminal inclination of the Catholics and their social condition; in view of the importance of the fact itself, further investigation of its causes is essential. It is certainly fitting, however, to emphasize that, the cause still being doubtful, we are not justified in using the higher or lower criminality of members of any faith as a weapon against them, or, worse still, like the anonymous writer mentioned on page 52, to assume that "criminal statistics show the intrin- sic moral value of the various faiths in a really remarkable manner." The government statistical report is right in closing its consideration of the connection between religion and crime with the following words: ^ "We cannot issue too strong a warning against the use of the data for or against this or that faith, to show that its effect on criminality is proved." § 5. City and Country ; Occupation According to von Oettingen,^ the relation of the urban to the rural population in Italy was 32 : 68, but in criminality they approach each other, and the relation is 43 : 57. Condi- 1 "Statistik des Deutschen Reiches," LXIX, II, 37. * von Oetiingen, loc. cit. p. 499. 62 THE SOCIAL CAUSES OF CRIME [§5 tions are similar in France, where the urban and rural inhab- itants were responsible for approximately the same number of crimes; but the urban inhabitants constitute only about 30% of the whole population. In Germany, in the cities and districts with more than 20,000 inhabitants there are 134.2 delinquents per 100,000 adults; in the rural districts only 96.6. But it would be erroneous to conclude from this that morality and virtue are deeper rooted among the peasants than among the dwellers in cities. For good reasons the large city strongly attracts criminals and loafers, who find there a better field for their labors, companionship with congenial spirits, and more opportunity to keep themselves and their booty out of sight. The pleasures of the city are also enticing, and it is just these pleasures that offer themselves daily in all possible forms, chief among which are prostitution and alco- hol, that are fraught with danger to the man of weak character. He succumbs much more easily in the complicated life of the city than under simple rural conditions, to the temptation to steal. If, in addition, he becomes intimate with reckless companions, or, worse, falls into the hands of old prison veter- ans, the first step in a career of crime is soon taken. A summary of the years 1883-1893 in Germany ^ gives the following differences per 10,000 urban and rural inhabitants: TABLE XI Place All Cbimes Resist- ing Offi- CEBS Aggra- vated Assault AND Battebt Theft Fraud Aggregate of 33 cities and districts with more than 20,000 inhabitants . . . Remaining territory, chiefly rural, of the corresponding higher administra- tive districts 134.2 96.6 7.4 3.2 12.3 16.7 37.8 27.3 8.1 3.8 1 "Statistik des Deutschen Reiches," N. F. LXXVII, II, 28. § 5] CITY AND COUNTRY; OCCUPATION 63 Offenses against property, especially fraud, predominate in the city; the numbers of procurers, and of workmen without steady employment, whom I shall try to characterize more fully later, in short, the whole tribe that constantly lives with one foot on the threshold of the penitentiary, clearly appears in the frequency of resistance to the authority of the State. In the country, on the other hand, the drinking that goes on on Sunday ends in a brawl, in which knives play their part; hence the larger number of cases of aggravated assault and battery. But there is also great variation in this respect. In the part of Bavaria that lies on the right of the Rhine there are more cases of such assault and battery in the country districts, while in Rhineland the majority of such cases occur in the towns. ^ In trying to find the reasons for these variations between the city and the country, we must proceed with great caution. Yvernes,^ for instance, established the fact that 75% of all infanticides were committed in the country, and 60% of all criminal abortions in the city. But these are not criminal psychological difiFerences that might be used in characterizing the population. They are merely differences in technique, if I may so express it. Unmarried pregnant girls in the city easily find an experienced friend or unscrupulous midwife to help them; the newspapers teem with advertisements offer- ing "advice in confidential cases." The peasant girl resorts to the use of internal, and, generally, ineffective, doses, to procure abortion, but so seldom with success that such cases rarely reach the ears of the authorities. But if she makes away with the infant after it is born, she seldom escapes prose- cution and conviction; in the city it is more convenient and less risky to let the " baby farmer " attend to the ghastly task. » Prinzing, "Soziale Faktoren der Kriminalitat" (ZStW. XXII, 150). « Cited by Foldes (ZStW. XI, 528). 64 THE SOCIAL CAUSES OF CRIME [§ 5 The connection is not always so transparent. The variations found in different localities often cannot be explained till the occupation is taken into account. There is no doubt that the latter has considerable influence on the kind of offense com- mitted. Apart from superficial connections between the two, a close relation is brought about by the fact that an individual's inclination and talents influence his choice of a profession. It requires a robuster constitution to be a butcher than to be a tailor or waiter; the individual of inferior intelligence will never rise above the grade of the unskilled laborer. Still greater interest is claimed by the well-known fact that, among impersonators of women on the stage, among waiters and ladies' tailors, there are many men with perverted sexual in- stincts, who have doubtless been influenced in their choice of occupation by the abnormal suggestions connected with these kinds of employment. It is to be regretted that so far not much study has been devoted to the psychology of occupation. For this reason the government statistics do not enter a laborious, and at present vain, consideration of the different professions, but deal only with the large groups of occupations. In Table XII the number of adults in each of these groups is given, and the share that each group has in criminality as a whole, as well as in certain of the more important crimes. The group that includes agriculture, forestry, hunting, and fishing is strongly represented in the crimes of arson, perjury, and aggravated assault and battery. The suspicion that in most cases of arson the motive is the desire to obtain the in- surance is refuted by the statistics. Occasionally, it is true, a peasant whose circumstances have deteriorated resorts to this method of getting a fresh start, but, in comparison with other occupations, such cases are rare. Most cases of in- cendiarism are due to revenge on the part of employees, that is through farm laborers, dairy maids, etc. Anger at being §5] CITY AND COUNTRY; OCCUPATION 65 scolded gives the impulse, and the tempting quantities of hay, straw, and grain afford the favorable opportunity. Only as regards perjury does the number of independent farmers who are convicted exceed that of the employees; all the other offenses are committed chiefly by the laborers and maids. The commonest crime of the industrial population is the offering of resistance to an officer. Nearly half of all the convic- tions for this offense fall to the share of workmen in factories, mines, and the building trades, who constitute approximately one-sixth of the total population. The reason probably lies in the large number of youthful factory workers employed. The effect on these immature youths of independence and of the liberty to dispose of their weekly wages as they wish, is most unfavorable. In their self-conceit they look upon them- selves, when they resist the subordinate representatives of the government, as heroes. The immaturity of the workmen is also to blame for the fact that the industrial group is so largely represented in offenses against chastity; the saloon is responsible for the many cases of aggravated assault and battery. The specific crime of the commercial class, which includes also hotel-keepers, is usury. To 100 adults of the total popula- tion there were 2.3 independent landlords, who were responsi- ble for 59.8% of all the cases of usury. The prosperous con- dition of many tradesmen makes it easier for them to lend money than for men in other occupations; the figures would also perhaps justify the conclusion, that many a usurer merely uses trade as a blind in order to cover his dubious business. The criminality of the fourth group is much below its pro- portion of the whole population; it includes, besides public employees and those in the service of the courts, the so-called independent professional men (physicians, teachers, lawyers, 66 THE SOCIAL CAUSES OF CREViE [§5 B O Without Occupation, AND Occu- pation not given i~ ^ « — « lO ■* e t» BaAIxv^a}J »» •-;»»-^-;-);o»>Ort ;■* « d doodoodo • d rH ooo- 00 xNaoNadaoNi ■>j>' 9«».-;dp^p^-;-^o»p^ KJ z z a a a eaAixvia^ 00 •* to — ■* "" d^dd«^*oi-^ -F^ d 1? z oaovoNg i; «<»o;toot--*» .1-1 oj>ooo6>o(»»' « eaAiivTaa o o . o o o o o o : © o» 1^ d d ■ d d d d d d ■ d d oaovoNg o « o o« o< « eo r- .1 ; o « Qm iiaAixoy -^ dindd-*» eaAixvaaa •—I o»ioO'-'.-0!nio^cO>OI>i-it- « d-^dd'-doJd.-id ■«< ANl CE, Hot UDLI 9E8 00 0<»1~;»->J1000'— ©» ^ n§°^§ exNTxeiBsv -^ ■>}< Ho D ^ t^ OD'^^OS'^OOO'^X'f 05 "^ XNacLHadaoNj ■o e'5i^«o«--->i>do6do» oi "*. ■* -^ O 95 •* os_ n 00_ OS 00 * 00 „ 3RICULTUBE, E8TRY, Hunt ING AND Fishing eaAixvaag n 00 ^ » •* •* -s> in •»> U5 00 ". 9< d»idF-icrsp^»o^dco "* OS 00 0S.-<«>0S'*'*00O>0« to SXNVXSIS9V 00 r^-foiuimuiuiadd *o '^ i-io»a»o»«-i « l> 0SX510 — •o-o>n XNaoNadaaNj •"J" oioo^HiooJeNMo*-*.* t-' i; • >s = "3 fe ' o J • S C5 1890-1894 'EB80N8 Convicts BELONGED TO THE INO Occupations ■Si ■s 5 lO *^ 2 C5 1^ ■" 00 _ i> t3 ii ta ^ »-• t3 O -o o to ■3 s ' a "0 "° .S •- '"' ^ a; .2 "0 2 z "^ s. O B O o a J '"So eg •s-l-r fe^-s S i S g t) u e M-a a c 2 « £ tf p, ►S < H W 03 fc P I^H ivasaax iVONOJ^ IN I CO 1 o ^^/^ ^^Bl H^HI^H niHaiin ivaaaivg sm I^B Avaiaj «■ AvasaaHX -■ « ivasajjaaj^ ivasaax s ^m^m ivaNopi 00 ■■ iBHmn _mg^ XTOsaxvs s ^^ ivaiHj 00 ^H^^^B ivaeaQHX 3^^ 80 THE SOCIAL CAUSES OF CRIME [§6 The few figures that I have given speak volumes. They reflect sadly on what is called "Sunday rest." As long as it is impossible for the workman, the young merchant, the day laborer, to spend his Sunday in a suitable way, — in the dis- cussion of the prophylaxis of crime it will be explained what is meant by this, — as long as the public house is the only at- tractive spot open to him, the unfortunate conditions will con- tinue that moved the chaplain of a penal institution. Pastor Heim,^ to exclaim: "The Lord's Day law in its present form is a very doubtful benefit." ^ TABLE XVn Locality 1900 1902 1903 1904 Total % Public-house . . 195 210 174 163 742 66.5 Dwelling-house . 9 23 36 18 86 7.7 Street 9 25 35 29 98 8.8 At work .... 33 22 20 87 87 7.8 Unknown . . . 14 10 21 102 102 9.2 Total . . 260 290 286 279 1115 100 That it is not the workman alone who is imperilled by drink, is proved by the criminality of students, which has twice, in 1893 ^ and in 1899 * been made the subject of special investigation in the government statistics. There is scarcely any class of men that is so advantageously situated as our student body. Coming out of educated families, as most of these students do, brought up under the influence of and fully comprehending ethical conceptions, removed for the most part from all material cares — where are conditions found ' Hugo Heim, "Die jiingsten und altesten Verbrecher," Berlin, Wiegandt und Grieben, 1897, p. 90. ^ Also Krauss (" Der Kampf gegen die Verbrechensursachen," Paderbom, 1905, p. 65), in his capacity as a Catholic priest, agrees with this view. 3 "Statistik des Deutschen Reiches," N. F. LXXVII, II, p. 7. ^ "Statistik des Deutschen Reiches," N. F. CXXXII, II, p. 48. §6] NATIONAL CUSTOMS. ALCOHOL 81 better calculated to prevent conflicts with the penal law? Hence, it is so much the more striking when we find that in 1893, of 42,000 students, 350, in 1899, of 54,000, 435, were convicted. TABLE XVIII All crimes and offenses .... Insult Aggravated assault and battery . Resisting an oflScer Malicious mischief Simple assault and battery . . Breach of peace Theft, also when repeated . . . Fraud, also when repeated . . . PiSB 10,000 Students thebe were Convictions Convictions PER 10,000 Persons of Punish- able Age 83.3 80.6 1899 123.6 Convictions PER 10,000 Men from 21 TO '25 Years 1886-1895 332.7 22.2 17.9 15.0 9.4 14.5 13.9 9.3 10.5 5.5 4.6 4.1 5.6 0.7 1.5 0.5 3.0 14.3 24.5 4.4 4.9 6.9 5.8 21.0 6.3 19.8 95.8 17.4 17.0 24.4 19.1 51.5 16.4 Compared with the criminality of all classes of society, that of the students appears very grave, especially taking into consideration how few of their crimes are offenses against property, which constitute 46% of all the crimes and offenses against the laws of the land.^ We may therefore certainly take into account the fact that the students are just at the age at which, as experience has taught us, the inclination to transgress against the law is especially pronounced. I have, therefore, also given the relative figures for the age between 21 and 25 years. To this age belonged 245 of the convicted students,^ and undoubtedly also the majority of all students. The diflFerences, in contrast to the general criminal inclina- ' " Statistisches Jahrbuch fiir das Deutsche Reich," XVI, Plate V. ^ It is striking that among the convicted students 17 were over 30 yeara of age. 82 THE SOCL\L CAUSES OF CRIME [§ 6 tion of the population, are the more remarkable, especially in the last two kinds of ofiFenses, when we see how they are balanced in all the crimes and off enses in which "the high spirits of youth," as the government statistics courteously express it, cross the legal boundary. Nor may we overlook the fact that cases of insult among the students themselves seldom come before the courts; moreover, breach of the peace ("Hausfriedensbruch"), insult, and simple assault and battery, being offenses prosecuted only at the request of the injured party, are frequently settled out of court. The frequency of cases of resistance to executive officers is especially deplor- able; doubly so when committed by future judges, teachers, and physicians. The necessity of turning to the age most inclined to crime in order to find equally high figures, and the fact that, as regards malicious mischief and insult, the students as a class cannot bear comparison with the total population, do not permit us to view this matter with complacency.^ Insult, breach of the peace, malicious mischief, resisting an officer, assault and battery, — all these offenses bear the same character, that of insubordination and violence. As neither lack of home training nor acquired brutality can be the cause of these acts, no explanation remains but that of excessive alcoholic indulgence. The kind of offense does not vary in the least from the rough acts that are committed by the less cultivated working population. It may well be said that, without alcohol, convictions of students, as we have the right to expect, would be exceedingly rare. Student life shows us a sort of artificial criminality that is due solely to the customary use, or rather abuse, of alcohol. 1 On the whole, the year 1899 seems to show improvement over the year 1893, though not, imfortunately, as regards theft and fraud. The severity of the sentences, too, tells the same story (in 1893 19, in 1899 only 2, were sentenced to prison for aggravated assault and battery). §6] NATIONAL CUSTOMS. ALCOHOL 83 In discussing the geographical distribution of crime, I have already pointed out that the distribution of aggravated assault and battery coincides exactly with the varying amount of alcohol consumption. In a study of criminality in Wiirttem- berg, Rettich ^ speaks of the statistics of assault and battery as indicating the character of the resident population. It is not the hungry apprentice traveling in search of employment, the journeyman, or the habitual thief, that commits such crimes. "But the resident young factory workman, when he has received his wages, is, indeed, often in a quarrelsome frame of mind, and the majority of the fights that follow, judging by experience, take place Saturday or Sunday evening." In my opinion, cases of aggravated assault and battery do not indicate the character of the population, but they un- doubtedly do characterize local and national customs. Ret- tich, however, is, I think, right in saying that the danger lies not in the depravity of the habitual criminal, but in intoxi- cation. Drunkards undoubtedly commit their share of these crimes, but it is not the larger one: with 60.4% of the persons who were convicted of aggravated assault and battery in 1889 it was their first ofiFense! In 1900 the percentage was 51.8; in 1901, 59.3; in 1902, 58.4; 1903, 57.5; 1904, 57.3; thus exactly three-fifths of those convicted are persons of unblemished reputations who pay heavily for their intoxication on Sunday. Our view is well borne out by the surprising sameness of the figures for several years, with approximately 100,000 convic- tions in a year. The characteristic manner of the crimes, which are all stamped as impulsive, shows that it is not the depravity of the drunkard, who lives as a parasite at the ex- pense of society, that is so dangerous, as the occasional excess of the workman, the craftsman, the student. * Rettich, "Die wiirttembergische Kriminalitat " (Wiirttembergische Jahr- biicher fiir Statistik und Landeskunde, Jahrgang 1899, I, p. 409). 84 THE SOCIAL CAUSES OF CRIME [§ 6 In the army and navy quite different, but psychologically related, crimes appear: from 1894 to 1899 in 88 (2%) of the cases of military insubordination, in 75.4 of the cases of fatal as- sault, intoxication was officially determined. The conclusive- ness of all the subjective experience of judges, of all statistical data, still leaves a gap, in failing to show in what way the connection between excessive alcoholic indulgence and assault and battery can be explained. We must turn first to the ques- tion of the psychic effect of alcohol. Not until within the last decade have exhaustive investigations been made, by Kraepelin ^ and his pupils, of the effect of larger and smaller quantities of alcohol on intellectual attainments. Even quantities that are entirely insufficient to produce intoxication, and that would correspond to the amount con- tained in from a half to a whole litre of beer, bring about a distinct slackening of intellectual power, evidence of which appears in difficulty in remembering, and in retardation of simple psychic processes; as, for instance, in the addition of simple figures, or, in experiments with compositors, in a de- crease in the amount of work performed. The sequence of ideas, also, is disturbed, the conceptual relation of words to one another is loosened. All these affections do more towards explaining the depravity and obtuseness of the drunkard than the explosions due to intoxication. Rather, the proven de- terioration in the perception of external impressions might help us to an understanding of criminal actions; it gives rise to a misunderstanding of gestures and words. But, in my 1 Kraepelin, " Beeinflussung einfacher psychischer Vorgange durch einige Arzneimittel." Fischer, Jena, 1892; ^sc^a/entur^, "PsychologischeArbeiten." I, published by E. Kraepelin, Leipzig, Engelmann; Kiirz und Kraepelin, Ibid., Ill, p. 417; Martin Meyer, Ibid., Ill, p. 535; Oseretzkoitsky und Kraepelin, Ibid., Ill, p. 587; ErnM Rudin, Ibid., IV, p. 1; Smith, "Die Alkoholfrage," Tubingen, Osiander, 1895; Fiirer, "Bericht iiber den internationalen Kongresa zur Bekampfung des Alkoholmissbrauchs," Basel, 1894, p. 369. §6] NATIONAL CUSTOMS. ALCOHOL 85 opinion, no extensive influence can be attributed even to this efiFect. On the other hand, we know of another effect of alcohol that is of the greatest interest. In experimental psychology a certain movement that responds to a certain irritation is called the reaction; by movements, not only those of the hands being understood, of course, but also those of the tongue and vocal muscles. Between the irritation and the beginning of the responsive movement a period of time, that is measur- able by delicate instruments to within one one-thousandth of a second, elapses. This is the time occupied by the psychic process. It is, of course, very short when the work that the mind has to do is very simple, as, for instance, in experiments where the reaction consists of a formerly agreed-on, easy movement of the finger responding to a sound. Under the influence of even very small doses of alcohol this period is shortened still more; but this acceleration is not to be regarded as an improvement in the performance, for, as experiments have shown, it takes place at the cost of reliability. The psy- chic process induced by the irritation is either superficial or is omitted altogether; the reaction represents nothing but an involuntary movement as a response to an irritation, or to an anticipated irritation. The instant when the irritation takes place, which can be fairly accurately foreseen, is antici- pated; the responsive movement occurs at the moment when the irritation is expected, not after it has been actually carried out; somewhat in the same way as a soldier in his first at- tempts at target practice, or under special stress, can no longer control his eagerness and pulls the trigger before he has done taking aim. This kind of response to an irritation is called a "premature reaction"; if the mind had to choose between two or more movements, the premature reaction becomes a "false reac- 86 THE SOCIAL CAUSES OF CRIME [§ 6 tion." The occurrence of these premature and false reactions- after indulgence in alcohol, are obviously due to a condition of increased excitability precisely in executing movements. The psychic process of deliberation is slighted, owing to the increased motorial tension. Whether the actual irritation was the one expected, and whether the response corresponded to it and was purposeful, does not usually become clear to the criticism that follows, until the error has been made and cannot be recalled. This eflPect of alcohol on the activity of psychic functions is applicable to the events of everyday life. And it enables us to see the connection between intoxication and crime in the proper light. In the public-house, and afterwards in the street, the same qualities of alcohol are effective. The irrita- tion consists of an utterance, an abusive word, a threatening gesture, an accidental knock; the reaction is an insult, a blow with the fist, with a stick, with a beer glass, a stab with a knife. If the normal course of the reaction were not affected by the alcohol consumed, the afterthought might exercise its authority, and the most practical form of defense be found against the attack, which is so often only an imaginary one. But, just as in the experiments performed in the laboratory, the psychic process is hindered or prevented by the liquor that has been drunk; the response to the irritation follows prematurely; by the time the mind has done its work, the increased motorial excitability has delivered the blow. The judgment of the reason comes limping along after the hasty action.^ "The increased facility of motorial reaction is the '■ It may be pointed out here how very important the results of these ex- periments are for the problem of "free determination of will." The reaction is a simple act of the will. As small a quantity of alcohol as 10 gr., corresponding approximately to only about 3 of an oxmce of brandy, a tenth of a litre of wine, or a quarter of a litre of beer, alters the reaction. Thus, even such small doses. §6] NATIONAL CUSTOMS. ALCOHOL 87 source of all those unpremeditated and purposeless, because impulsive and violent, actions, which have made alcohol so notorious, not only in the history of the foolish and audacious, but especially in the annals of crimes of passion." The knowledge of the psychological effect of alcohol gives us a full understanding of the crimes that are committed under its influence. We might calculate what kind of offenses they would be, even without the aid of constant observation and statistics. In its very first stages, motorial excitability shows itself in loud talkativeness, screaming, singing — dis- turbing the peace; then the impulse to make purposeless mo- tions finds occupation in handling inanimate objects, the color and shape, often the mere existence, of which, act as an irri- tation — damaging property; there follow altercations with persons, which lead, in rapid sequence, to insult, to breach of the peace, to resistance to officers, to assault and battery, both simple and aggravated. They are always the same acts, taking their course accord- ing to the scheme of premature, unpremeditated, exaggerated reactions responding to an external irritation. Thus, too, it becomes comprehensible that the crimes are not the result of habitual drinking, but of occasional intoxication. Of course, the chronic inebriate, too, will sometimes succumb to the acute effect of alcohol, and, when intoxicated, will commit an assault, perhaps sooner than the usually sober workman. But in this case, too, it is the alcoholic excess of the evening that is entirely insufficient to produce intoxication, disturb the action of the will. This gradually increases up to the point where the action of the will ceases altogether, the state of intoxication recognized in § 51 of the penal code. It follows: 1, that the lack of an intermediate step between the freedom of decision and complete cessation of the will's action is based on insufficient psychological preliminary knowledge; 2, that responsibility for an act per- formed under the influence of liquor must be made exclusively dependent on the degree of intoxication. 88 THE SOCIAL CAUSES OF CRIME [§ 7 the immediate cause. To how much greater an extent does this apply to the numerous workmen, young clerks, and stu- dents who, while intoxicated, commit some crime, and pay for the excess of a moment with imprisonment, disgrace, and the ruin of their whole career. We cannot overestimate the significance of these facts for the prophylaxis of crime, especially in view of the extent to which the crimes of alcohol, aggravated assault and battery in particular, predominate. The certain knowledge of this im- portant cause of a large group of crimes, opening up to us the possibility of adopting really effective measures in regard to it, is our only consolation in considering the misery produced in our country by the custom of drinking. § 7. Other Forms of Indulgence With us in Germany the abuse of other luxuries is a very small factor in criminality. Lombroso's ^ assertion that the habit of taking snuff among prostitutes and criminals, and of smoking among recidivists, proves the existence of an "etio- logical tie between tobacco and crime," is wdthout any solid foundation. When we consider the kind of psychological effect that tobacco has, it is diflScult to understand how a crime could be produced by its use. The same applies to tea and coffee. Their effect on the processes of the mind is so entirely different from that of alcohol, that it cannot surprise us if no crime can be attributed even to their misuse. In recent years, however, alcohol has had to compete in the east of Germany with a dangerous rival, ether. After an intoxicating effect of very short duration, ether produces a condition of numbness and paralysis, so that it is not so likely to lead to crime as alcohol. We do not as yet know what de- generative effects it may have on the children of those who ^ Lombroso, loc. cit. p. 90. §7] OTHER FORMS OF INDULGENCE 89 indulge in it, but it is certain that its habitual use, by destroy- ing family life and undermining the economic balance, creates conditions that are favorable to the growth of crime. It behooves us, therefore, to keep an eye on this social menace, and to take steps to prevent the misuse of ether before it be- comes a rooted custom. The opium habit is of no importance in Germany, or any- where in Europe, and need only be mentioned because of its prevalence in Asia, especially in China, and the same is true of the hasheesh habit, which is found to such an extent in Northern Africa and Egypt. The effect of both is so paralyzing on the motorial centres especially, that it is next to impossible for the users of the drug to move about in public while under its influence, so that no danger to people in the streets can follow. Morphine has an effect similar to that of opium. It can never become a national poison in the true sense, owing, for- tunately, to its high price. It is used mainly by educated people, especially by those belonging to the professions in which it is easily procurable. According to Rodet,^ among 650 men addicted to its use, 287 were physicians and 21 druggists. It has this disadvantage in comparison with alcohol, that those who are accustomed to it find it more difficult to do without it, and very seldom succeed in breaking themselves of the habit. The first signs of degeneration due to morphine soon appear, — neglect of appearance, of family, of duty. The desire for the drug becomes more and more irresistible, and when the legal way of procuring it, by a physician's prescription, or the illegal but easy method of purchasing it from a druggist, fails, the victim frequently resorts to the for- gery of a prescription, to fraud and theft, and, if it be a woman, ^ Rodd, "AUgemeine Wiener medizinische Zcitung," 1897, No. 27. 90 THE SOCIAL CAUSES OF CRIME [§ 8 to prostitution, in order to obtain it. When, as quite often happens, the same person is addicted to the use of both mor- phine and alcohol, the case is, indeed, grave. The use of cocaine is a rarer cause of crime than is the use of morphine. When, however, cocaine is responsible, it has always led to an acute psychosis, accompanied by the halluci- nations that are usually produced, generally in a few months, by indulgence in this drug for even a relatively short time. Such crimes must therefore — I personally have known a case of uxoricide by a physician — be regarded as the acts of insane persons. § 8. Prostitution Prostitution, that is, self-surrender for payment, originally instituted by priests for the honor of the divinity and the^ benefit of the temple, and later put into practical form by statesmen like Solon, has existed in all ages and will always continue to exist. The most ancient historical documents ^ speak of it; but they also tell us — a fact that is important for legislation — that all conceivable means of repressing it had already been tried. In vain! With the weapons of reli- gion and Christian love Louis XI of France, for instance, attempted to abolish it altogether and founded places of refuge for fallen women. On his return from Palestine he ordered it to be completely exterminated. The concealed prostitution that immediately began to flourish everywhere, however, compelled him, before a year had elapsed, to repeal the order and to assign certain streets to the use of prostitutes. The harshest measures (flogging, the pillory, and capital punishment) proved of no avail in repressing the evil, which continued to spread and thrive only in a more secret and dan- gerous form, and they were always given up after a time. ^ Eugen Miller, "Die Prostitution." J. F. Lehmann, Munich, 1898. § 8] PROSTITUTION 91 Thus, in all countries, legislation has oscillated between ex- tremes, turning from the method of herding prostitutes to- gether in barracks to allowing them unlimited freedom, from occasional superintendence to the strict supervision of every individual. The tendency to respect the rights of the individ- ual and to place them above those of society, on the one hand, and, on the other, the moral fear of sanctioning the evil by legally allowing it, have always led to the repeal of regulative measures. This has been followed by such a spread of prosti- tution in its most dangerous, clandestine form, that it later became necessary to recognize and regulate it again. We may regret, but we must not ignore, the fact, that the tendency to immorality cannot be exterminated by laws. The man who had the most extensive knowledge of prosti- tution. Parent du Chatelet,^ said that, wherever people con- gregated, it was as unavoidable as sewers or cess-pools. But, because it seems to be impossible to abolish this evil, it does not follow that it should be allowed to grow and spread in all directions. Its repression should be striven for as far as pos- sible, and for that, it is essential, above all, that its danger- ousness should be thoroughly understood. We may leave the danger to health undiscussed; I will merely mention that the annual number of cases of venereal diseases in the German army, which is better off than that of France or Austria in this respect, equals a third of the number of men who were wounded during the Franco-Prussian war,^ and that in the German hospitals,^ from 1889 to 1891, 4.4% of all the patients were suffering from such diseases; that is, almost as many as those suffering from the scourge tubercu- ' Parent du Chatelet, "De la prostitution dans la ville de Paris," 1857. * Toply, "Die venerischen Erkrankungen in den Armeen" (Archiv fiir Dermatologie, 1890). ' " Medizinische statistische MitteilungcD aus dem kaiserlichen Gesund- heitsamt," III, p. 45. 92 THE SOCIAL CAUSES OF CRIME [§ 8 losis (4,8%). In considering these figures, we must not over- look the fact that only a relatively small number of persons suffering from sexual diseases (according to Guttstaft, per- haps 5%) go to hospitals. Important as the prevalence of such diseases is to the physician and the sociologist, it would take us too far afield to discuss this phase of the problem of prostitution. But the extent to which prostitution exists and its effect on criminality must be dealt with at length. The number of prostitutes can scarcely be given in figures. Those that are registered by the police as "Kartenmadchen," "Kontrolldirnen, " etc., represent but a small percentage, especially in large cities. In Berlin, for instance, there are about 3000 under police supervision, but the whole number of such women in that city is placed at from 40,000 to 50,000.^ Conditions are not very different elsewhere; whole armies of girls live entirely or largely on the money they earn by prostitution. Where do all these women come from, and what presses them into this calling? There are two views as to this, and they are rather harshly and directly opposed to each other. According to the one, prostitutes are the victims of our social conditions, which make it so difficult for a woman to get on honestly; Bebel ^ and Hirsch ^ may be mentioned as its typical exponents. Lombroso and Ferrero,^ Tarnow- skaja ^ and Strohmberg,^ however, think that necessity plays but a small part in forcing women into prostitution. They * Number 173 "der amtlichen Drucksachen des Reichstages," p. 931. 2 August Bebel, "Die Frau und der Sozialismus," Stuttgart, 1897, 27th ed., p. 176. 3 Hirsch, "Verbrechen und Prostitution als soziale Krankheitserscheinun- gen," Berlin, 1897, Th. Glocke. * Lombroso und Ferrero, "Das Weib als Verbrecherin und Prostituierte." ^ Tarnowskaja, P., "fitude anthropometrique sur les prostituees et les voleuses," Paris, 1889; tranlsated by Kurella, Hamburg, 1894. 6 Sirohmberg. "Die Prostitution," Stuttgart, 1899, Ferd. Enke. §8] PROSTITUTION 93 look upon the prostitute as a degenerate, and regard prosti- tution as the equivalent of the male world of crime, the form of criminality peculiar to women. We cannot fail to recognize that prostitution does absorb a considerable percentage of criminally inclined women. Every prostitute lives without working, at the expense of society; she corresponds in a measure to the male beggar and the vagabond. In a period of three years Baumgarten ^ found only 32, 30, and 41 convictions among 2400 prosti- tutes, and altogether only 21 cases of theft. He accounts for this by the prostitute's absolute lack of energy. Those few prostitutes who make a practice of robbing, he believes to be, first of all, thieves who have turned to prostitution because it affords easy opportunities of stealing from men. Strohmberg contrasts the prostitutes of the passive, indolent type, with another group that consists of those who have some secondary occupation as well. But only in very rare cases is it honest work; generally it is thieving. Of the 462 pros- titutes that Strohmberg examined, 175 were thieves, of which 32 came from notorious families of thieves. His figures, which, though dealing with small groups, are, nevertheless, note- worthy because they are so reliable, show that prostitution is neither a contrast nor an equivalent to crime, but rather that the two are often united. It must, however, be admitted that a large percentage of prostitutes, in spite of their passiveness, would turn to crime if the possibility of living by prostitution did not exist. On the other hand, it cannot be denied that the necessity that sometimes makes a man a thief may as easily drive a woman to prostitution. The low pay received by certain classes of working women, especially waitresses, second-rate * Baumgarten, "Die Beziehung der Prostitution zum Verbrechen" (Arch. KrimAnthr. XI. 10). 94 THE SOCIAL CAUSES OF CRIME [§ 8 actresses, and dressmakers' assistants, makes it necessary for many a girl to supplement her wages in some way. But we must not forget that a large number are led to adopt these dangerous occupations, instead of becoming domestic serv- ants, for instance, by their strong sexual impulses and their love of dress and an apparently comfortable life. Just the figures that Bebel, Blaschko, and others give in support of the view that it is poverty that drives women to prostitution seem to me to prove the contrary. It is true that working women, saleswomen, dressmakers, and, above all, former domestic servants, predominate, but they also form an unusually large part of the population; Behrend's proofs that 5.3% of all prostitutes live with their parents must make us suspicious. These better situated women belong to the not inconsiderable number who have not oflBcially turned to prostitution, but they differ from the girls who are under police supervision only in the manner in which they carry on their occupation. Strohmberg found poverty given as the cause of prostitution only in one case, and in that particular instance he ascertained that it was absolutely untrue. I would not, however, deny the significance of economic wretchedness. Girls that come from the very lowest proleta- rian classes, the daughters of drunkards and prostitutes for instance, never, of course, learn to look upon prostitution as anything degrading.^ Still graver in its consequences is the present custom that prevents prostitutes from being restricted to certain localities. They now live, as a rule, in workingmen's families. From their earliest childhood onward the children in the house see the practice of this occupation, and it is the outward brilliance that often impresses them, rather than the underlying misery; daily they see work, hunger, and scanty 1 Bettmann, "Die arztliche tlberwachung der Prostituierten," Jena, 1905, p. 257. § 8] PROSTITUTION 95 clothing in their own families in crass contrast to the life of idleness, theatres, concerts, balls, and luxury in dress that the prostitutes enjoy. These impressions remain and facili- tate the first step towards vice. If, later, necessity or temp- tation, love of adventure, and envy of a friend's smarter clothes, confront a young girl, the force of habit, and knowl- edge of the life, have dulled her sensibilities in that direction to such an extent that resistance is possible only to an un- usually strong character. This, it seems to me, is the course of development in most cases, and on it my opinion is founded. Undoubtedly our social conditions — miserable economic circumstances and the fact that prostitutes are not restricted to certain localities — are the cause of prostitution, but these factors are efiFective only when descent and training, and, above all, natural dis- position, prepare the ground for them. And natural disposi- tion or temperament is, indeed, of the most importance; not so much, pronounced sexual instincts, for just among prostitutes they are often lacking, but general inferiority of the mind. "In many cases prostitution is to be regarded solely as a symptom of a defective psychic condition," says Bonhoffer,^ who, among 180 prostitutes, found that only one- third were without psychic anomalies. Just as the weak are the first victims of great epidemics, so, too, in the struggle for existence, it is the many defective natures that first sink into the morass of prostitution. There are next to no statistics regarding the share that prostitutes have in criminality. Offenses against police ordi- nances are not included in our criminal statistics. They are the torment of our lower courts. It is not rare for the same prostitute to be sentenced 50 times and more, accord- 1 Bonhoffer. " Prostituierte " (ZStW. XXIII. 119). 96 THE SOCIAL CAUSES OF CRIME [§ 8 ing to the strictness of the supervision and her own skill in evading it. An accumulation of offenses from time to time results in her being turned over to the higher court. This means a sojourn in the workhouse for a period that is increased by three or six months at every subsequent convic- tion by this court, but, on regaining her liberty, she immedi- ately returns to her former life. Two factors that are inseparable from prostitution are largely instrumental in causing her relapse — the traffic in prostitutes and the activity of the men who live on the earnings of prostitutes, commonly known as pan- derers or cadets. Section 180 of our Penal Code is prob- ably quite unique. The renting of rooms to prostitutes is classed as traffic in prostitutes; none the less, all prostitutes must have dwellings somewhere, or, if they carry on their occupation away from home, they must have at least a lodg- ing. As has been mentioned, about 3000 prostitutes are offi- cially known to the poUce in Berlin, who also know where and in whose houses they live. This fact must somehow be reconciled to another, that for some years past in Germany the number of convictions for traffic in prostitutes has never exceeded 4000 annually, in the whole country ! In all the larger cities, and often, too, in smaller towns, — I need name only Hamburg, Altona, Kiel, Cologne, Mainz, Strassburg, Heidel- berg, Mannheim, Karlsruhe, Freiburg, Nuremberg, Munich, Leipzig, Dresden, Halle, and Magdeburg, — there exist official brothels known to the police as such, — often, in fact, whole streets of brothels. The fine distinction that bestows the name of brothel in the "technical police sense" only on those houses that are hcensed to sell liquor, that have a com- mon entertainment room, and in which the proprietor wrings large profits from the prostitutes, has no existence in reality. With or without a license, the keepers of such houses sell § 8] PROSTITUTION 97 wine and spirits, and, with or without a concession, they treat the girls like slaves. The actual meaning of "Kuppelei" is ters^y contained in the simple definition, "affording the opportunity for prosti- tution"; do the authorities then know nothing of the way in which the prostitutes are looted and robbed by the extor- tionate methods of their landladies? Whether they live in common dwellings or alone, it is only the owner of the house that profits by their occupation, and, as a rule, the prostitute leaves the brothel poorer than when she entered it. But this does not pronounce the death sentence of the brothel, for the prostitute who lives alone suffers even worse treatment, as she is robbed by both the landlady and her "cadet." It can safely be asserted that there is no more abominable form of crime than that practised by these men who act as go-betweens for prostitutes. It is inseparable from clandes- tine prostitution, and, at the same time, is very difficult for criminal justice to get hold of. Every judge will confirm the fact that many obstacles intervene to prevent conviction for this offense; partly because of her affection, partly because of her loyalty, but mainly because of her fear, it is not easily possible to induce a prostitute to testify against such a man, and it is not rare for her to commit perjury in order to get him out of his difficulty. In many cases, especially at the beginning of their career, prostitutes might turn to some other mode of life, were it not for their unfortunate dependence on these so-called "protectors." The extent of their other crimes, robbing the men who visit their prostitutes, and assaults with and without dangerous weapons, is beyond exact knowledge, for we are seldom able to recognize officially such a panderer in the man who is arrested for some other offense. All these dangers to society thrive the more rankly, the stricter the police is in its repression of all houses resembling 98 THE SOCIAL CAUSES OF CRIME [§ 8 brothels, — for the prostitutes are thus driven into the hidden corners of the city, into the low public-houses, and the public parks, — and the more the fear of arrest causes them to draw the veil of night over their dark doings. There is only one evil that it is difficult to separate from the brothel system, and that is the traffic in prostitutes. And yet the best remedy, even for this, is an efficient system of segregation. If, as in Bremen, it is made impossible for keepers of brothels, and lodgings for prostitutes, to overcharge and rob these women, the traffic in prostitutes becomes unprofitable, and thus the chief motive is removed. There is also less temptation for prostitutes in brothels to rob the men who visit them. In many cases no complaint is made if a theft is committed by a prostitute, as the victim would rather suffer his loss than allow the matter to become public. The same is true of the not infrequent attempts to blackmail, of threats to sue for maintenance, or of de- nunciation for attempting to procure abortion, and also of the carefully planned scenes in which the pretended husband discovers the pair and has to be pacified with money. But where there are well-supervised brothels, the danger of such crimes is greatly diminished. The improve- ment of the sorry conditions under which, owing to the treat- ment they receive, prostitutes now live will also contribute to greater legal security. It is well known that there is a movement on foot to abolish brothels, and, indeed, to put an end to all state supervision. The reasons for this so-called "abolitionist movement" are entirely of a sentimental nature; greatly as we admire its ideal tendency, we must none the less deplore the com- plete lack of understanding of the matter that its advocate? manifest. The abolition of prostitution, as history shows, cannot be \ § 8] PROSTITUTION 99 accomplished. Its dangers, especially for public health and the morality of the people, are so great that the State is bound to keep, within certain limits, the evil that it cannot extermi- nate. Measures adopted to this end have as little to do with the approval or support of prostitution as the legal steps taken to repress crime have to do with its recognition as a pro- fession. But, even if this were not so, we might point to such examples as Solon, Louis the Saint, the Popes ^ Benedict IX, Paul II, Sixtus IV, Julius II, Leo X, and St. Augustin. If it were possible to put an end to prostitution, its sufferance and regulation by the State would certainly undermine the morals of the people. Now, however, the State does not countenance prostitution (§ 180), though it does recognize it through the penal law and police ordinances (§361, 6). It provides a penalty for an offense that it can and will prose- cute only in very rare cases. This undoubtedly works greater harm to the people's sense of right and justice than would a statute, any offense against which would be energetically followed up and punished. Advantages to be gained by the institution of brothels, or, better, the barrack system now used in Bremen, are the protection of the public health, the removal of the prostitutes from the streets and public places, and the diminution of public scandal that would thus be attained. Above all, if certain houses and streets are set apart for prostitutes and made subject to State supervision, especially if the paragraphs relating to traffic in prostitutes are made severer, thus pre- venting the plundering and overcharging of prostitutes, the business of the procurer will be practically done away with, and that is a benefit to which public legal security is certainly entitled. ' Krauss, loc. cit. p. 277. 100 THE SOCIAL CAUSES OF CRIME [§ 9 § 9. Gambling and Superstition Gambling is of comparatively slight criminal significance with us in Germany. The number of those who ruin themselves by games of chance is not large in proportion to the total criminality. It is much greater in countries like Austria and Italy, where even the poorest persons take part in the so-called "little lottery." Though it is difficult to determine accu- rately the number of thefts and embezzlements that are in- directly due to the passion for gambling, and the losses it entails, yet it can scarcely be doubted that there is a connec- tion between the two. The hope of escaping from all financial care by one lucky stroke, which feeds the passion for gambling of many an educated man and many an officer, and which eventually brings about their downfall, must of course become the more enticing the lower the classes of the population are that engage in gambling. The feverish excitement with which in Italy everyone waits for the numbers to be drawn each week, is a very grave sign in the eyes of the sociologist, and, if he observes the figures of those who venture their last few coins on this hazard, he will not underestimate the temptation to dishonesty. In addition, superstition has no stronger support than the passion for gambling. Not a few persons in Italy live by prophesying the outcome of the lottery and giving advice in regard to it. For a number of years the tendency to gamble, and the deceptive hope of winning great gains easily, have been in- creasing to an undesirable extent. It is just as impossible to ascertain the large sums that are gambled away at the races as it is to determine the number of thefts and frauds that are committed to provide money with which to bet on the horses. It has been attempted to prevent all these doings by closing the betting-rooms, but with doubtful success. In §9] GAMBLING AND SUPERSTITION 101 spite of all efforts, it has not been possible, up to now, to pre- vent the activity of the bookmakers, and the money of the poor and the youthful will continue to find its way to them. I cannot help fearing that this opens up a new and plenteous source of crime, with which we shall have to reckon in future. Superstition ceases to play a part in the commission of crimes as soon as the average education of a people has reached a certain height, though it may still occasionally happen that a shrewd fellow takes advantage of a simple-minded person's superstition, especially in the sphere of religion. I do not fail to recognize what Hans Gross in particular has done for our knowledge in tracing certain crimes to a superstitious source. It certainly sometimes gives us the key to otherwise incomprehensible crimes, and oftener enables us to interpret some of their attendant phenomena. But, fortunately, such cases are rare. I do not think that we shall often meet, hence- forward, in cultured countries with crimes that are based on superstition, except, of course, those committed by insane persons. In Russia, however, judging by Lowenstimm's ^ in- vestigations, the number of offenses that are due to the belief in witches is greater. He mentions the sacrifice of human beings in times of famine and pestilence, the murder of magi- cians and witches, and of children with physical deformities (changelings), the opening of graves for the purpose of ob- taining talismen and to prevent the return of vampires, the rape of innocent girls, and sodomy committed in order to cure gonorrhoea. In Italy, too, especially in the southern provinces, super- stition prevails even in the very highest classes. Bulls' horns, amulets, mystic signs, such as the extension of the index and little fingers ("gettatura"), used to ward off the evil eye ^ Lowenstimm, " Aberglaube und Strafrecht," Berlin, 1897, Johannes Rade; Lowensiimm, "Der Fanatismus als Quelle der Verbrechen," Berlin, 1899. 102 THE SOCIAL CAUSES OF CRIME [§10 ("mal' occhio"),^ are, indeed, harmless evidences of supersti- tion, but they prove how little enlightened the southern Ital- ians in general are. Many a puzzling penal ofiFense is probably rooted in super- stitious ideas. Gradually, as the people become more enlight- ened, this danger will grow less. Yet we really have no reason to look down too haughtily on Russia and Italy. The regret- table fact that even so-called educated people allowed them- selves to be deceived in the most brazen manner by the spiritistic flower medium, Mrs. Rothe, the ignorant wife of a tinker, shows how deeply rooted the inclination to superstition is. We should also be preserved from over-estimation of our- selves when we recall the hundreds of thousands of lives that were sacrificed in the persecutions of witches, the last of which was not longer ago, in Germany, than the end of the 1700s; while, in Mexico, such persecutions continued up to the end of the 1800s. / § 10. Economic and Social Condition The man who stands on a height to view a landscape can discern the character of the country, the positions of the mountains and valleys, more clearly than one who, standing in the valley, finds the distant view shut off. So, too, a glance backwards over many years discloses the heights and depths of social life, and penetrates to their causes more easily and distinctly than can the consideration of a single year. The last twenty years of German criminality are especially suitable for such an analysis, because no transfiguring up- heavals have taken place; the years havmg been marked by a great economic and cultural advance. Yet, notwithstand- 1 It is told openly in Rome that pious Italians, while they were being blessed by Pope Pius IX, who was supposed to have the "evil eye," used to make the sign of the "gettatura" behind their backs! §10] ECONOMIC AND SOCIAL CONDITION 103 goS »» ^_, O OS OO' "fl CO t- cs o- 00 OS OO ;;is 1 00 H 03 J> ■* U5 ■* OO cc at 1 r~t 1—1 QJ 1 - 1 -; ~^T»^I Ol (N OS «3 O or- OS OS a> -H a F- 1 OO 1 00 CO -^ •o •<1 •o ■4< l> OO CO a» f-i 1 - 00 CO C1 1 00 l> ■* ■* ■>J •o ■* OS OO CO a* o< 1 ^ »- o» CO !X ~^ 1 o a m o CO 00 t~ OS a» os' IX 1 ^ 1 00 I- m «5 1 o» •* OS t- CO 00 ■* o» oo' « •* 2 •o •«< 00 OO CO o» i-< »» I-* 1 - 1 «5 OS 00 CO « 1 OS 1 OS (« "* 00 CO •o •o 0« OO co' C» 1 •<)» 1 00 t- * ■* ■>fl rt CO t^ "^.1^1 OS (X >o 'J' •o •* OS OO CD a» 1 5 1 -- 1 CO CO o* l> "^ 1 ». 1 OS o os >o CD -* o •* o o CD e» ■o r1 a- o 00 CO t- 1* f O OO U5 V •-' OS er> "*. "^ t~ 00 OS 00 X 00 00 00 — OO -* a X 00 CO ■«^ a ■* 0(5 I— OO ■o o <5* 00 fx 1-; ~5 X OS «5 »o o OO ■* » ■* o 00 a -f »o cc •o on 00 o 00 OO l~ a X 00 ■o ■* a •* "Jl O OO ■ •a •* o OS OS e •o o a X CO ■o ce ■* 0^ OO •-" CO •* o »» ■"" ud OS <» ~^ a* 00 00 00 O! a» CO CO o •* >o OO <3> CO 00 »o ir- •* 0) •* ■* CO 1* o »» *^ •* to o» ■~c o 00 00 OS o o» or- 00 OS o» t- OO a) X 00 •o ■c •* Q^ ■* eo OO 00 •* o IX '"* oo «s_ »> ~a -r 00 CO ■* 00 o S o» •o 00 o a 23 00 »o a -Jl •* 00 Tf OO f o ly •"■ 04 o "j; "~aJ o 00 OS Q4 n 1* » e 00 OS or -f 00 *o » •* » -Jl 00 »r OO OO o a) _ -" — a p. 05 , >. 'V o o V ^ a o b o g o u o o 2 "3 i a -a a a a o 0, 3 O ■o -a a a % "H. B -a i 1 ? 0! V) > a « o C3 c M "o 1 3 o •3 1 E K t a .a v u "a, B en a i 8 § g 3 lO "a s > : 1 o ■o a CO s a . '5 5 104 THE SOCIAL CAUSES OF CRIME [§ 10 ing, the number of convicted persons has been steadily increas- ing every year, even allowing for the growth of the population. New legislation is but very slightly responsible for this. The chief changes are found just in those crimes that, by their frequency, determine the whole aspect of the subject. In looking over the most important crimes, the principal statistics relating to which are given in part in Table XIX, we notice four types of frequency. Some crimes occur almost equally often. Such are, for instance: false accusation, incest, sodomy, criminal negligence resulting in manslaughter, rob- bery and extortion, illegal imprisonment. Others, like usury, perjury, murder, and infanticide, evading military service, crimes and offenses in office decrease; they shed rays of light, especially when contrasted with the gloomy picture that the third group presents. It consists, apart from a few offenses which have for their object the procuring of certain ad- vantages in connection with property (fraud and forgery), of crimes of violence, aiding prisoners to escape, resisting an officer, breach of the peace, indecent offenses, simple and aggravated assault and battery, rape, insult, and malicious mischief. All these crimes are increasing from year to year, some of them at a positively alarming rate. Finally, in the fourth group of offenses I include those that show the greatest variation in frequency. The causes of this are multifarious. Thus, for instance, the numerous misdeeds of "procurers" called forth such an outcry against these wretched fellows that the courts found it expedient to proceed against them with somewhat greater severity; unfortunately this energy seems to be evaporating already. Tense political conditions increase temporarily the number of convictions for "lese-majeste," the "year of attacks," 1878, in which the number of prosecutions for this offense increased thirteenfold, is particularly well remembered. These prose- § 10] ECONOMIC AND SOCIAL CONDITION 105 cutions took place, not, of course, because the desire to insult the sovereign grew so marvelously, but because the "criminal irritability of the public," as Seuffert ^ calls this supersensi- tiveness, and, we might add, of the courts, in such a period of political excitement, saw some danger to the State lurking behind every reckless remark. The extent to which external circumstances sometimes in- fluence criminality has been shown by Seuffert in the statis- tics of causing fires by negligence. During the years 1892- 1899 from 1.5 to 2.1 persons per 100,000 adults were convicted of this offense. The only exceptions were the years 1892 with 3.3 and 1893 with 3.2 convictions. From the publications of the Royal Prussian Meteorological Institute, Seuffert was able to ascertain that these two years were particularly dry nearly everywhere. This would, of course, increase the danger of starting fires by carelessness. More important than all these relatively rare crimes are the convictions for theft. Their fluctuations weigh the more heavily because the frequency of this offense is rivaled only by that of aggravated assault and battery. How important the variation in the different years is, appears in the fact that the number of convictions for this crime and for embezzle- ment in 1892 exceeded that of 1888 by 28,409. It is impossible that in four years about 30,000 persons can have so deteri- orated morally that without weighty external reasons they turn to crime. The sudden return to honesty is almost more striking, for, in the following year, the number of persons convicted of theft decreased by 14,757. What causes these fluctuations? Theft is the appropriation of others' property, that for some reason rouses the desire for possession in the person who com- mits the offense. If a man's material circumstances allow him ' Seuffert, loc. cit. p. 31. 106 THE SOCIAL CAUSES OF CRIME [§10 to gratify all his wishes, he will scarcely yield to the tempta- tion to take what belongs to another. But this is not the case with the poor man, who, in times of need and higher cost of living, sufiFers from a lack of everything. The mode of life of our working classes is by no means prac- tical and economical. The money that is spent in the public- house would be far better laid out for food, for larger and airier dwellings, or put by for times of emergency. But we must reckon with this, just as with the fact that illness and mis- fortune may reduce even the most industrious workman to beggary. Moreover, it is true that a large part of the popula- tion never earns more than enough for the necessaries of life, even in times of prosperity. Every increase in the cost of living must therefore make the conditions of life more difficult, and this is felt the more keenly, the closer the family lives to the minimum cost of existence; hunger and misery looming ahead will unsettle even the firmest principles. Attempts to prove this by statistics are not lacking. Thus, von Mayr,^ after comparing the fluctuation in the offenses against property and in the price of grain, came to the fol- lowing conclusion: "In the period from 1835 to 1861, in the Bavarian territory this side of the Rhine, about every half groschen added to the price of grain called forth one theft more per 100,000 inhabitants, while every half groschen that grain declined in price prevented one theft." This comparison is based on the assumption that the eco- nomic conditions that prevail in a given year are indicated by the price of grain. This has always been assumed, until, re- cently, Heinrich Muller,^ under the guidance of Conrad, has * von Mayr, "Die Gesetzmassigkeit im Gesellschaftsleben," Munich, 1877, p. 346. ^ Heinrich Miiller, " Untersuchungen iiber die Bewegung der Kriminalitat in ihrem Zusammenhange mit den wirtschaftlichen Verhaltnissen," I.-D, Halle, 1899, Kammerer. § 10] ECONOMIC AND SOCIAL CONDITION 107 tried to show that the economic significance of the price of grain in the production of crime has disappeared. Instead, he contends, the general industrial situation is becoming of more and more importance in its effect on the status of criminality. It may readily be admitted that, in times of industrial pros- perity, wages rise, and the workman has more to spend for food; this rise in wages may even balance an increase in the price of bread, just as the latter is more disastrous in its con- sequences in times of dullness and lack of employment. Hence the attempt of Fornasari di Verce ^ to consider the status of industry, and the fluctuations in the cost of food, in relation to each other, is worthy of special note. He calculates how many hours of labor in each year, at an average wage, are necessary to buy a certain amount of grain (100 kg.). The comparison of these figures with the number of simple and aggravated thefts for the years 1875 to 1885 showed a distinct parallel between the two. Kurella^ found the same result for the years 1880 to 1888. It is, unfortunately, not always possible to make these comparisons; I have tried in vain to obtain the necessary figures for Germany. The " Zentralblatt fiir das Deutsche Reich" publishes wage-tables, but they cover too short a period of time and, in addition, show tremendous local differ- ences. Consequently it is impossible to use them for this purpose, unless the comparison be made only for very small districts, when the smallness of the figures would greatly detract from the usefulness of the result. The objections that Miiller has raised to the adoption of food prices as a measure of prosperity might make further consideration of the relation between the two seem super- * Fornasari di Verce, "La criminality e le vicende economiche d'ltalia." * Kurella, "Der neue ZoUtarif und die Lebenshaltung dos Arboiters," Berlin, 1902, .Julius Springer, j). 27. 108 THE SOCIAL CAUSES OF CRIME [§10 fluous. If the relation between the economic situation and theft were indistinct, we might, indeed, dispense with a further discussion of this question. But we shall see that this is not TABLE XX Economic Situation and Chdiinality in France (After Lafargue: "Die neue Zeit," 1890, pp. 20. 21.) Ykabs 5 fc a S •< O E M Fbaucs Sacpi-E Theft Fraud Embez- zlement Cbiues AGAINST THE Pebsos Indecent Assaults AND Rape op Adults Cmi.DBEN 1840 67.56 19,531 1374 1126 1622 157 284 1841 52.02 17,377 1297 1177 1765 181 381 1842 58.35 18,383 1270 1232 1669 161 308 1843 55.14 19,900 1399 1269 1771 180 339 1844 58.24 21,010 1504 1299 1612 149 392 1845 55.38 20,633 1407 1316 1658 198 274 1846 69.04 24.753 1489 1544 1696 145 379 1847 90.58 31,596 1883 1698 1622 141 374 1848 41.48 20,120 1294 1360 1616 154 356 1849 46.31 22,070 1375 1450 2015 222 467 1850 43.54 23,121 1475 1651 2146 254 524 1851 43.47 24,516 1652 1653 2161 242 615 1852 52.15 28,090 1980 1997 2013 228 611 1853 67.12 33,940 2284 2204 1921 212 573 1854 87.86 39,484 2629 2420 1691 174 581 1855 90.84 37,883 2733 2471 1613 160 582 1856 91.16 36,848 2519 2669 1702 181 650 1857 67.02 35,737 2703 2690 1657 188 617 1858 48.10 29,374 2790 2501 1947 238 784 1859 46.91 27,792 2666 2542 1851 226 718 1860 59.60 30,331 3128 2680 1607 180 650 1861 75.42 32,729 3524 2850 1696 217 695 1862 65.88 32,131 3842 2929 1762 213 728 1863 59.21 29.155 2431 2655 1673 171 750 the case. Moreover, special emphasis must be given to the fact that at present the price of bread turns the scales, as regards the workman's expenses. §10] ECONOMIC AND SOCIAL CONDITION 109 The consumption of bread is unusually large in the working classes. According to Max May's ^ workmen's housekeeping plans the total annual expenditure for this necessary article TABLE XX — Continued Economic Situation and Criminality in Fbance (After Lafargue: "Die neue Zeit," 1890, pp. 20. 21.) Years Price of Bag of 150 Kilos of Floor in the Paris Market Simple Theft Fraud 'Embez- zlement Crimes against THE Person Indecent Assaults AND Rape op Francs Adults Childbem 1864 51.43 28,345 3341 2752 1703 176 764 1865 49.60 28,078 2432 2813 1750 178 820 1866 60.62 29.623 2422 2799 1777 160 883 1867 80.92 33.097 2806 3143 1704 124 805 1868 81.22 35,035 2990 3183 1697 161 726 1869 58.10 31.613 2750 3292 1658 146 710 1870 63.81 20,531 1628 1563 1297 54 558 1871 86.59 27,662 1684 1912 1561 112 526 1872 72.99 34,961 2705 3110 1669 124 682 1873 79.92 35,289 2913 3390 1708 97 783 1874 71.10 34,170 3008 3079 1731 139 825 1875 57.08 30,020 2880 3122 1765 140 813 1876 61.31 31.781 2710 3195 1849 140 875 1877 68.78 33,351 2968 3309 1653 108 804 1878 67.82 31,802 2845 3288 1614 84 788 1879 63.75 32,943 2997 3468 1677 130 812 1880 65.09 37,029 3445 3621 1512 80 676 1881 65.94 35.757 3674 3747 1608 90 718 1882 63.87 35,930 3434 3679 1660 95 752 1883 59.96 35,959 3449 3795 1582 108 675 1884 51,11 35.845 3281 3545 1629 83 705 1885 49.45 34.239 3673 3679 1518 65 622 1886 50.94 34,457 3595 3824 1507 78 634 is more than a sixth of the workman's whole income. The price of bread, however, does not depend on the excellence • Max May, "Wie der Arbeiter lebt," Berlin, 1897. no THE SOCIAL CAUSES OF CRIME [§10 of the grain crop, but on the bourse, as Hirschberg ^ has shown. Consequently, every increase in the price of grain must affect severely just that part of the population that stands lowest in the economic scale. As a standard by which to measure the price of food, La- f argue ^ adopted the price of a sack of flour weighing 150 kg., which was fixed by the municipal authorities, in this case in Paris, and was entered in the annual records of the baking trade. A comparison of the figures shows that every rise in the price of bread was followed by an increase in the number of thefts, embezzlements, and frauds, while a decHne in the price lessened the number of crimes (Table XX). German statistics also show the close relation between the fluctuations in the cost of grain and the number of thefts (Table XXI). It is true, however, that both in France and Germany it is not the absolute height of the prices that is decisive, but their rise and fall. The year 1882, for instance, shows the highest percentage of thefts in the last 17 years, while the price of rye, in the same year, was moderate. It was very high, however, during 1880 and 1881, and the effect was still felt, or rather first felt, in 1882. The same condi- tions are noticeable in the following years. The highest and lowest points touched by the price of grain do not occur simul- taneously with the highest and lowest number of thefts; the effect of the former is not felt tUl a year later (Plate IV) .^ This is partly due to an external cause, which Albert Meyer* 1 C. Hirschberg, "Conrads Jahrbucher 1899," III Folge, XVII, p. 255. Compare also the figures in Table XXI. ' Paul Laf argue, "Die Kriminalitat in Frankreich. Untersuchungen Uber ihre Entwicklung und ihre Ursachen. Die neue Zeit," 1890, p. 20. ^ Bonger gives a very similar table for the Netherlands in " Criminalite et conditions ^conomiques" (Amsterdam, 1905, p. 623), a work that also con- tains many valuable statistics relating to the same problem. * Albert Meyer, "Die Verbrechen in ihrem Zusammenhange mit den wirt- schaftlichen und sozialen Verhaltnissen im Kanton Ziirich," I.-D. Jena, 1895, Gustav Fischer, p. 31. §10] ECONOMIC AND SOCIAL CONDITION 111 TABLE XXI Gb.'UN Prices axd CRrwiNALiTT in Germany 1 2 3 4 5 Rye Pbice peb 1000 Kg. IN Beblin Markh Rte Bbead PEB 1 Kg. IN Beblin MARgH Wheat PEB 1000 Kg. MARgH Feb 100,000 Civilians op Pc.visHABLE Age theb"!; webe Pebsons Convicted of a Yeabs o ill 2 z 5 - s g ^ 2 m S« Q Ms v. H a u a o a rrvSo 1880 187.9 1881 196.2 1882 152.3 287 38 27 284 1883 144.7 279 33 25 271 1884 143.3 269 33 24 275 1885 140.0 249 37 23 256 1886 130.6 20.8 151.3 244 28 21 259 1887 120.9 20.65 164.4 231 28 21 258 1888 134.5 21.22 172.2 225 27 21 255 1889 155.5 24.69 187.7 244 31 22 281 1890 170.0 27.18 195.4 237 32 22 296 1891 211.2 31.66 224.2 249 32 22 296 1892 176.3 29.52 176.4 272 39 26 323 1893 133.7 21.89 151.5 236 34 23 276 1894 117.8 20.43 136.1 231 35 22 289 1895 119.8 20.63 142.5 224 32 21 278 1896 118.8 20.93 156.2 216 32 20 271 1897 130.1 22.30 173.7 220 31 19 287 1898 146.3 25.15 185.6 224 33 20 293 1899 146.0 24.21 155.3 210 31 19 279 1900 142.6 32.96 151.8 212 30 19 290 1901 170.7 24.23 163.6 223 33 19 284 1902 144.2 24.21 163.1 222 36 20 1903 132.3 23.83 161.1 214 34 19 1904 133.1 23.50 174.4 227 32 18 1905 151.9 24.30 174.8 205 32 18 1906 160.6 27.06 179.6 210 35 19 1907 193.2 30.82 206.3 209 35 19 1908 186.5 31.78 211.2 222 44 20 1909 176.5 30.21 233.9 214 43 20 Price of rye: "Stat. Jahrbuch Deutsches Reich," 1900, p. 266; Ibid., 1903, p. 188. Rye bread: "El.ster: Souderabdruck aus dem Wbrterbuch der Volks- wirtschaft, " Jena, 1910. Youthful offenders: "Stat, des Deutschen R. B.," 237, II, 2. Theft, receiving stolen goods: Ibid., II, 6. 112 THE SOCIAL CAUSES OF CRIME [§10 PLATE IV Theft and Grain Prices since 1882 Price of 1000 kg. rye in Berlin. Price of 1-kilo loaf of rye bread in Berlin. Simple theft of youthful offenders to 100,000 of the total population. Simple theft, also when repeated, to 100,000 inhabitants of punish- able age. r 320 1 / \\ f \ 310 1 \/ 11 /' / ^ 300 /■ \ 1 1 / LL 1 \ 1 1 / 1 290 1 1 ,/ 1 1 1 I / S. / i^ K / / diiO ' / / \ ' I ■ N / 1 \' / s / 1 1 270 \ X ■ 1 \ / 1 1 / \ / 1 1 1 260 A /' 1 i (\ /• N /■ 1 / 250 / 1 1 I / \ / V i / / 240 / ^ / 1 — s t \ 7 \ i |N / S /' 230 \ .'/ 1 \ / \ \ 1 220 / i 1 ,' ^■- - / \ / , .f \ / \ \ 1 \ 210 \ 1 ^ y \ 1 \ ^' ^ / 200 ' \ 190 / \ / / \ i 180 \ : / \ 1 / \ 170 1 / 1 / 160 1 / / / / ISO \ 140 N ^. ^/ \ 1 \ \ 1 130 / \ y' / \ 1 120 / \ 1 ^ -^ no 100 o OO 00 OO CO INi CO 00 rn OO 00 00 00 CO OO ID 00 00 00 00 00 00 00 01 CO CO o 00 CD 00 fM CO en CO oi 00 00 to OO CO CO CO OJC CT)C 00 c 3 — 3 O no o 05 O O in o o> e. The corrective-edu- cation law (" Fiirsorgeerziehungsgesetz ") of the indixddual States — which it is to be hoped will soon give way to a law for the whole Empire — gives the State and the authorities (parents can scarcely be considered), a welcome means of preventing endangered and dangerous juveniles from living at large and uncontrolled in society. If all the authorities 1 hoc. cU. p. 27. § 14] AGE 153 concerned do their duty, and provide for every child that has come into conflict with the criminal law, and whose home offers no guarantee for improvement, a tremendous external im- provement in the criminality of our boys and girls will be attained; if, in addition, all those children are included who are in danger of falling, we can be sure of success. How far this success will go, the future alone can show. Its perfect completeness, that is, the real improvement of these children, that will make of a neglected child a useful member of human society, will probably often remain a "pium deside- rium." But the gain is still great if all these dubious elements are only rendered innocuous for a few years, in particular for those years in which criminal perils are particularly strong. Youth resembles a very sensitive instrument, the functions of which suffer from even the gentlest external touch. That is true not alone for juveniles of the Penal Code: even older boys and girls of from 18 to 21 show but little ability to resist temptations of all sorts. Table XXX shows the share of each age in relation to the total number of responsible persons of the same age. It is worth while, in this respect, to consider the two sexes separately. Among young men of from 18 to 21, the most frequent crimes are: offenses against chastity, petit and grand larceny, receiving stolen goods and forgery, robbery and extortion, and, oftenest of all, malicious mischief, — the same crimes, that is, as those committed by juveniles. The years from 21 to 25 show the greatest participation in crimes altogether, manslaughter, breach of the peace, simple assault and battery, fraud and embezzlement. Thus we see that at this age, to the emotional crimes and dishonesty are added, in growing numbers, the crimes requiring deliberation, like fraud and embezzlement; the character of the crimes of violence, if one may say so, becomes somewhat more harm- 154 THE INDIVIDUAL CAUSES OF CRIME [§ 14 less, breach of the peace taking the place of mahcious mis- chief, and simple assault and battery that of aggravated assault and battery. Between 25 and 30 the climax is reached for murder, for coercion and threats, and also for procuring women for prostitution; at this age the procurer thrives. With advancing age deeds of violence grow less, and, probably in connection with the occupation, the offenses that come into the foreground between 30 and 40 are break- ing out of jail and insult, while between 40 and 50 it is \dola- tion of oath that becomes prominent. '^The weakening body becomes unfit for all those crimes in which physical strength and skill are necessary; there is less energy, and finally, in advanced age, but little crime occurs. Thus, for instance, while grand larceny reaches its highest point between the ages of 18 to 21, after the seventieth year it sinks back to the 150th part, in relation to the same number of responsible persons of the same age. So much the more striking is the high number of convictions for in- decency and rape, which at this age nearly equals the fourth part of the convictions of young men in the most vigorous age (18-21)., It should be distinctly emphasized here, that, with few exceptions, such cases are due to pathological con- ditions. In our climate sexual desires usually cease at sixty years; it is very rare for them to be found at a great age. Every man over seventy who is guilty of such an offense should be made the subject of a psychiatrical report; in that case most of them would not find their way into prison, but into the insane asylum or home for the aged, where they rightly belong. Among all those whom I have come across I have not found one who was mentally sound; in every case there was pronounced senile decay. ^ This view is also supported by the ^ Aschaffenburg, "Zur Psychologic der Sittlichkeitsverbrecher" (MSchr. Krim. Psych. II, 404). §14] AGE 155 CO >— I I— ( S i-H HH b >^ O >< 01 X hJ a P^ .^ ^ '-' « rH 13 n M >^ 4-» o .JfJ .3 cc c « o u aaiHOsim eaoionvj^ 80.37 70.56 207.90 170.89 118.89 76.92 48.04 26.80 13.51 7.27 ■ot-Tjoooioe-tDeooj oo»eoi>o»t-'-'>J''>'»> .*- o» vj lo «o flo •*- a* © oaxvaja'g uaHAi 081V 'aavHj 88.06 33.79 134.98 164.82 119.43 83.27 49.71 24.05 9.04 19.50 17.69 39.93 88.02 26.38 20.64 10.54 9.85 4.07 1.85 oaivaaag Naau osnv 'saoog saqoxg DtoAiaoaa 28.21 28.62 39.69 35.61 34.09 32.54 28.24 20.61 11.56 3.88 16.83 4.10 8.98 12.40 16.60 26.74 31J)6 19.69 7.98 2.77 iNareaizzaaug 80.97 46.66 138.49 142.80 134.83 105.77 71.82 41.82 20.67 7.27 ooosoeo0 00 » •QOOOOOIHOOUJOO-'HO IH GO QO OS OS 00 to to >-H 0»-Hr.irfl'*a--<><001- i> d -^ •* d ■^ 00 t-- 00 ajvg 'Baina3 Tvaxag OOCO'«CO»tOtO ooos»<«i6o»oo'>» coot^o6o>o>e>co->QJ 77.46 8.12 120.90 173.69 161.84 111.02 68.83 86.57 15.64 5.33 ©CO>OtO-»>O»tO©003» *. "^ '^ "? ^ •? '^. "'. °. <". •od-^i>do»o6«©- aoiAHag iavxnijv ao 1101SVA3 xaaoxg smvi avkoixvf^ XBNivov easNajJO "•'^ sama^ 1847.03 1032.72 3291.04 3327.28 2928.12 2259.13 1651.22 1068.39 571.75 227.25 380.42 229.56 443.59 443.58 482.41 622.66 489.40 314.74 153.03 68.25 1 - Male convicts 12 to 18 years 18 " 21 " 21 " 25 " . 25 " 30 " . 30 •' 40 " . 40 " 50 " . 50 "60 " . 60 " 70 " . 70 years and ove Female convicts 12 to 18 years 18 " 21 " . 21 "25 " . 25 " 80 " . SO " 40 " . 40 " 50 " . 60 "60 " . 60 " 70 " . 70 years and ove 156 THE INDIVIDUAL CAUSES OF CRIME [§ 14 fact, that most of these old men have led blameless lives. Among the 303 men of 70 years and over who were convicted between 1897 and 1899, 216 had never before been punished! Among women the conditions are slightly shifted; a very dangerous age with them is between 18 and 21, when all kinds of crimes arising from dishonesty, especially petit and grand larceny, embezzlement, fraud, and forgery are committed. Between the thirtieth and the fortieth year violence reaches its climax, especially assault and battery, resisting an oflficer, malicious mischief, and inducing women to prostitution. In- stead of the men-procurers, we have the women keepers of brothels, and landladies, who maintain the number of con- victions almost at the same height even for the next decade. To these, however, are added, also, the insults and breaches of the peace that frequently result from quarrels in tene- ment houses, violation of oath, coercion, and, finally, re- ceiving stolen goods. Whereas, among boys, it is generally a comrade who acts as the receiver, among girls it is often an aged woman who makes a business of the practice, and — unfortunately — it is frequently the mother who receives the goods and supports her children in their thieving. According to Quetelet,^ "the inclination to steal is earliest developed, and, in a manner, controls the man all his life. It is first active in the family circle, and thus thievery in the household is developed. Then the youth also turns his atten- tion to other spheres, sometimes resorts to violence, and does not even stop at murder. This latter phase, however, is pre- ceded by the inclination to carnal crimes, that is so strong in youth, and that goes hand in hand with the heat of desire and the excesses that accompany it. The youthful criminal first seeks his victim among those least capable of resistance. 1 Quetelet, "Physique sociale ou essai sur le developpement des facultes de rhomme," 1869, II, p. 306. § 14] AGE 157 He then comes to the crimes that are committed with calm deliberation. The man who has become cooler simply de- stroys his victims by murder and poison; the last phase is characterized by deceit and cunning, which take the place of strength. Avarice awakes anew and leads the criminal to falsifications; now he seeks to strike his enemy in the dark. If sexual desires still exist, such men seek their victims among weak children; to this extent there is a certain similarity between the first and the last steps in the career of crime." This description does not entirely agree with German statistics and is apt to produce a false impression, inasmuch as it is very rare to find an individual who has led the whole, or even a part, of this criminal career. The distribution over the different ages corresponds much more to the different stages of physical and mental development and the way in which they are influenced by the external conditions of life. A young fellow, when he steals, is much more likely to depend on his physical agility than an older man is, and the latter, therefore, prefers to steal only when opportunity offers, or to depend more on fraud and embezzlement. For the same reason, when he quarrels, he will rather rest satisfied with mere verbal abuse than try his strength with the other; in this connection it must also be taken into consideration that alcoholic excesses, except where habitual drunkards are con- cerned, decrease with advancing age. The whole method of considering ages does not, neverthe- less, afford us a deep insight into the etiology of crime, except in the case of the very young, and, to a certain extent, the very old. But what experience with juveniles teaches us is so much the more important and instructive, because it shows us what dangers attend the age of adolescence, and where the lever must be applied in order to keep the annual crowd of juveniles from the first step in a criminal career. 158 THE INDIVIDUAL CAUSES OF CRIME [§ 15 §15. Sex The criminality of men and women shows remarkable diflFer- ences (Table XXXI). Certain ofiFenses, except as regards being an accessory, which is relatively rare, are only possible for one of the two sexes because of their nature, as, for instance, infanticide (§ 217) with women, dueling, illegal marriage, rape, avoiding military service, with men. The abandonment of children and criminal abortion are also, for obvious reasons, more frequent among women. Apart from the fact that in most cases it is the woman who has to bear the greater care of the new or unborn, generally illegitimate, child, it is prob- ably much easier to prove a woman's participation in a case of abortion than a man's. On one point we must not deceive ourselves: the number of convictions for this crime bears no relation whatever to the frequency of the offense; it merely shows, as Lewin ^ says, " the greater or lesser skill with which abortion is concealed." Convictions for procuring women for prostitution are strik- ingly frequent among women. This is partly due to the fact that prostitutes are much more inclined to help their men companions out of a dilemma in court than they are to aid the women who keep brothels or rent rooms. But we are not justified in taking this offense all too seriously. Frequently the women concerned keep houses for registered prostitutes, — hence, with the consent of the police. If such a woman offends a neighbor, who is probably no better herself, the latter may report the case, and the public prosecutor is then obliged to proceed, and the court to convict! As regards this offense, too, it need scarcely be repeated (compare p. 96) that the rarity of conviction is out of all proportion to the frequency of the crime. ^ Lewin, loc. cit. p. 20. § 15] SEX 159 In all other oflfenses women's criminality is far below that of men. The woman thief and receiver of stolen goods is comparatively frequent. Apparently that is the kind of dis- honesty that their nature and manner of life make most easily possible to them. They lack the physical skill and the TABLE XXXI Number of Adult Women Convicted in 1909 per 100 Adult Men Convicted Inducing women to prostitution (for the year 1907) .... 75.6 Receiving stolen goods 46.9 Prison breach 37.8 Perjury 36.1 Insult 36.1 Petit larceny 31.4 Embezzlement 19.3 Forgery 19.2 Murder 18.6 Fraud 17.0 Extortion 15.9 Arson 15.9 Manslaughter 14.5 Simple assault and battery 10.7 Breach of the peace 9.9 Aggravated assault and battery 8.3 Grand larceny 7.3 Malicious mischief 6.0 Coercion and threats 5.6 Resisting officers 5.4 Robbery and extortion 2.0 Indecent assaults on children, etc 0.48 courage to break and enter; embezzlement and fraud prosper better in commercial pursuits, in which women are relatively less engaged than are men. The infrequency of assault and battery and malicious mischief is due less to their lack of physical strength than to the fact that they are less given to drinking than men, A drunken woman, too, is more apt to express her fury in verbal abuse than in a direct attack. I hesitate, however, to trace the frequency of insults to this rare source. The cau.se is 160 THE INDRTDUAL CAUSES OF CRBIE [§15 rather to be found in the greater sensitiveness of the woman, who is only too apt to think that some unfriendly remark casts a reflection on her honor, and replies with an insult; the constant friction between the inmates of large tenement houses is also partly to blame. Finally, another specifically feminine oflFense is false accusa- tion. Though the number of such offenses committed by men is greater than that of those committed by women, yet we must not overlook the fact that women are kept from conflicts to a much larger extent because of their work at home and their domestic seclusion. The act of which persons are often falsely accused is a sexual attack, and the victims of such false accusations are frequently clergymen and physicians. The accusation is not always a pure invention; sometimes hysterical delusions and misunderstood pathological sensa- tions are at the bottom of it. It occasionally happens that such an accusation is made after narcosis or hypnotism, when only the presence of a second person can protect the physician. On the whole, it may be said that women's crimes bear rather the character of insincerity, those of men of brutality. We have reason to be glad that the number of convictions, compared with the total number of responsible women, shows but an inconsiderable increase, 15% less, in fact, than the increase in the convictions of male individuals in two decades (Table XXXII). The importance of this stagnation in women's criminality must not be underestimated; above all, because of the eco- nomic significance that an accumulation of female convic- tions would have. This fact seems to me still more telling as a proof that women's greater participation in economic compe- tition does not mean greater criminal danger. Embezzlement, fraud, receiving stolen goods, have all decreased, in spite of the fact that more and more women are engaged in industrial § 15] SEX 161 and commercial life or as working women. The geographical distribution also shows us that the industrial districts are, for the most part, below the average, as regards women's criminality.^ It is not the work in factories and shops that produces crime, but its accompaniments, especially the taking part in amusements and carousals. The increase in crime among men and minors, and its stagnation among women, can only be explained by this difference in the mode of life of the two sexes. TABLE XXXII 2 Convictions per 100,000 Adults of the Same Sex Yeabs Men Women 1882-1891 1746 2091 375 1892-1901 394 Total percentage 19.5% 5% A few words must be said in regard to the question whether the lesser criminality of women is not perhaps explicable by the fact that prostitution claims a large number of criminal women. Lombroso ^ positively asserts: "If cases of prosti- tution are included in the criminal statistics, the two sexes are at once placed on an equality, or the preponderance may even be thrown on the side of women." He himself, indeed, contradicts this sentence when he speaks of the large number of convicted juvenile girls (only 2% in Germany, by the way) as being derived from the "prostitutes not yet of age," and further, when he emphasizes the high criminality of prostitutes. 1 Compare in this connection Map IF in the Statistics of the German Empire, N. F. CXLVI. 2 Taken from the Statistics of the German Empire, N. F. CXLVI, II, 37. ' "Crime: its Cau-ses and Remedies,' p. 186, "Modern Criminal Science Series"; Hortcn, trans. 162 THE INDIVIDUAL CAUSES OF CRIME [§ 16 I also believe it is true that we may sometimes see in the prostitute the equivalent of the criminal. Many a young girl would resort to stealing and embezzlement in order to gratify her desire for pleasure and dress, if prostitution did not afiford her an easier and more profitable means of satisfying her wishes. Nevertheless, I do not beheve that it is the male thief, street robber, or forger that corresponds to the prostitute, but the beggar and the vagrant. Only in a very slight degree do prostitutes possess the qualities that are essential to the carrying out of graver crimes, to deliberate, purposeful action (p. 93). In general, they are apathetic persons, lacking in energy and frequently somewhat weak-minded, who would not, indeed, stop at crime if occasion should offer in a tempting form, just as the tramp does not disdain at times to lay hands on others' property. But on the whole, beggars and vaga- bonds, as well as prostitutes, shirk energetic action. At present, then, I can see no reason for regarding prosti- tution as a kind of criminal safety valve which allows the active dangerous inclinations of women to find another outlet; it is rather a substitute for the relatively harmless beggar and tramp. § 16. Domestic Status Judging by von Oettingen's ^ experience, the number of con- victed persons is nearly everywhere greater among the unmar- ried than among the married. He sees in this "a proof of the elevating power of family life, in spite of the fact that the cares of occupation and of providing for the family are more numerous in this case. But within the sphere of regulated domestic and business life such cares have a beneficial influ- ence; they prevent excesses." In contrast to this, the crim- ' Loc. cit. p. 524. § 16] DOMESTIC STATUS 163 inal statistics of the German Empire point out that "great caution must be used in deducing anything from the influence of domestic status on criminality." ^ Our statistics divide criminals, according to their ages, into three groups only: from 21 to 40, from 40 to 60, and 60 and over. In the first group, in 1901, the unmarried, widowed, and divorced predominated as regards most ofiFenses, those excepted being prison breach, insult, simple assault and battery, coercion, embezzlement, receiving stolen goods, extortion, and forgery. Between the ages of 40 and 60, robbery and violent extortion are the only exceptions in favor of the unmarried. Otherwise, the criminality of the married is considerably higher. Finally, among old people, married criminals predominate over unmarried, except as regards indecent offenses, grand larceny, fraud and arson. We get an entirely different result if we divide these groups according to sex; I give the most important figures, taken from Prinzing's ^ calculations, in Table XXXIII. The bringing of the figures into relation with 100,000 persons of each cate- gory, and the adoption of a twelve-year period, guarantee the reliability of the conclusions. Thus considered, the figures show undeniably that marriage has a favorable influence on men. This does not apply to those who marry as early as under 25 years; they commit a large share of all crimes. One of the external causes is undoubtedly the poverty that so often ac- companies early, heedless marriages. In such cases a young and immature fellow, who is scarcely able to earn his own sup- port, takes upon himself the care of a wife. Often numerous children are born, who add to his burden, and the direct result is that he lays hands on others' property. Moreover, 1 "Statistik des Deutschen Reiches," N. F. LVIII, II, p. 18. ^ Priming, "Die Erhohung der Kriminalitiit des Weibes durch die Ehe" (" Zeitschrift fiir Sozialwissenschaft," 1900,111, p. 433); "Der Einfluss der Ehe auf die Kriminalitat des Mannes," Ibid., 1899, II, p. 37. 164 THE INDIVIDUAL CAUSES OF CRIME [§16 at this age men are not apt to stay at home with their wives and children instead of going to the pubHc-house, as the large number of them that are convicted of simple and aggravated assault and battery shows. TABLE XXXIII (After Pbinzing) Convictions in Gennany 1882-1893 per 100,000 men and women of each category: All Crimes AND Offenses Breach of the Peace Insult Assault and Battebt AOE P3 O a o § a O g 2 ° 2 =* I ° 2 ° 3 o g OS < Men 12-15 years 661.1 15-18 " 1319.2 1»-21 " 2994.5 6413.0 141.7 296.4 111.1 444.5 960.6 1309.3 ... 1 21-25 " 3107.0 3566.3 179.4 192.4 _ 173.3 279.0 448.0 949.1 808.2 1102.1 25-30 " 2950.9 2504.7 4273.7 175.6 144.8 235.6 222.9 270.6 381.4 729.6 518 9 735.5 30-40 " 2880.9 1961.2 3797.3 150.6 105.8 197.7 277.3 316.2 377.3 424.8 298.1 411.8 40-50 " 2205.7 1487.8 2626.3 93.0 75.1 132.9 240.7 311.3 317.3 202.8 180.8 225.5 60-60 •' 1241.9 1009.8 1267.8 39.0 45.7 51.9 158.1 237.7 187.5 91.7 115.1 107.6 Over 60 " 494.6 490.1 342.7 11.0 19.3 11.2 66.4 122.9 66.6 31.5 48.9 29.8 Women 12-15 years 149.5 15-18 " 320.5 18-21 " 415.2 602.6 5.4 16.9 24.3 88.5 20.4 67.5 21-25 " 417.5 469.9 1339.3 6.9 13.3 28.6 34.9 85.7 157.1 24.9 61.1 96.4 25-30 " 440.7 454.5 1149.2 8.6 15.2 28.2 44.2 94.8 137.1 29.8 58.7 88.9 30-40 " 446.2 500.0 1029.9 11.1 21.2 32.7 57.3 116.7 138.4 29.9 61.0 70.2 40-50 " 334.7 468.2 709.9 10.6 23.9 27.2 58.4 121.4 121.7 21.3 55.3 46.8 60-60 " 221.5 299.5 369.2 6.2 15.3 15.9 43.6 84.8 77.1 13.9 33.9 25.7 Over 60 " 102.2 133.4 111.2 3.0 6.0 42 22.4 38.3 26.7 7.0 14.2 8.6 With increasing age, however, the criminality of married men decreases. Partly, perhaps, because improvident mar- riages are rarer among older people, and a larger percentage of the married belongs to the well-to-do and educated class. Another reason is, that older men are more likely to stay at home, partly because they lack the means for unnecessary expenses, partly because the pleasure they take in their own §16] DOMESTIC STATUS 165 homes and their own families compensates them for staying away from the pubHc-house. Another fact that probably contributes to the significance of this change is, that their criminal past and their preference for the life of a thief, a TABLE XXXIII — (Continued) (After Prinzing) Convictions in Germany 1881-1893 per 100,000 men and women of each category : 1 Petit Labcent Gk.^nd Larceny i Aiding, and [ Receiving Stolen Goods Fbaud and DEF.iiCATION Maliciods Mischief Age 3S o § § OS o S3 H a o a a a a < a 3 s 2; 1 s s) m a •< > ^ s a a a < n 2 > M § ^a m 2 ^e cc S ^Q Cfi S p:5 aa S ^a Men 12-15 years 15-18 " 18-21 " 551.7 1418.3 117.4 . . 42.0 .. 117.4 254.0 188.4 296.4 21-25 " 427.7 685.9 6-27.2 80.0 77.7 36.2 70.1 144.9 156.0 168.6 136.1 241.9 25-30 " 38-2.6 412.6572.1 60.8 41.0 78.5 35.5 43.8! 49.4 39.8 37.2 63.6 170.2 109.0 336.5 144.6 83.5 200.7 30-40 " 4II.9 296.9i550.0 48.0:24.9 68.2 206.4 91.9 340.9 139.4 58.9 136.4 40-50 " 365.0 216.2 420.0 28.8' 13.7 38.3 28.3 33.1 56.2 172.0 68.0 212.0 97.8 39.5 86.2 50-60 " 233.1 151.6j231.1 14.0 6.7 13.8 15.4 26.0 27.6 92.7 43.1 88.6 43.4 23.7 34.6 Over 60" 109.2 84.0 67.2 3.4! 2.3 2.1 5.8 13.4 7.8 33.6 18.2 17.5 12.2 11.9 9.0 Women 12-15 years 110.3 6.7' .. 15-18 " 194.9 12.3 .. 18-21 " 210.6 209.3 13.0il4.1 9.2 33.7 37.8 36.6 4.7 7.1 21-25 " 177.1 147.8 385.7 11.3 8.0 28.6 10.6 26.3148.2 35.6 23.4 94.6 5.4 6.1 21.4 25-30 " 158.5 132.0 318.5 9.3 6.5 12.lll2 6 23.9 52.4 35.0 18.7 80.7 5.8 5.7 14.5 30-40 " 136.6 127.1 265.9 6.2 5.4 12.5 17.2 32.6i 61.3 31.1 17.7 58.5 7.4 6.3 11.2 40-50 " 92.2 104.0 175.9 3.7 3.5 5.9il6.1 36 4 56.4 20.9 15.5 33.8 5.1 6.1 8.9 50-60 " 61.2 64.4 88.6 1.9 1.7 2.5 11.422.6 29.6 11.9 9.5 15.7 3.8 4.2 4.7 Over 60 " 32.0 31.1 28.0 0.4 0.6 0.4 4.5j 8.8 7.4 6.1 4.7 3.7 1.8 1.9 1.5 tramp, or a drunkard, is in many cases the reason that the unmarried never marry, and thus they influence unfavorably the number of unmarried criminals. That a man is neces- sarily, as Prinzing believes, favorably influenced by living with a member of the female sex, in which criminality is much lower, does not seem to me so certain. When we see how much higher the criminality of married 166 THE INDIVIDUAL CAUSES OF CREVIE [§ 16 women is than that of unmarried, it almost seems as if this were due to the intimacy of the married woman with the man, whose criminal inclinations are more pronounced. We might naturally assume that the married woman, who is supposed to be "provided for," would be less liable to engage in criminal activity. But this is not the case, above all as regards young women, who up to their twenty-first year are responsible for a large number of the thefts committed. Later, however, theft, in particular, is rarer among married than among unmarried women. Partly, probably, because in later years a married woman is generally able to depend on her husband for her daily bread, and because older women of the poorest classes are often able to live on astonishingly little. WTien a mature married woman transgresses, it is generally as an accessory, a receiver of stolen goods, or an offender against trade regulations. Convictions for assault and battery, for breach of the peace, for insult, increase among married women. Prinzing connects this with the practice of drinking. " In many places it is customary for a woman to accompany her husband on Sunday when he goes to the public-house, and, although this is often the best way of preventing his drinking to excess, yet it sometimes happens that the woman is drawn into the dreadful vortex." I admit this, but would lay much greater stress on another source of these crimes. Almost without exception I have found that insult and breach of the peace were the result of two or more women's living together. In the large tenement house, the use of common passages, gardens, yards, cellars, and storerooms is the source of endless disputes and friction. The relations between the parties gradually become more strained, until some trifle, frequently an act of one of the children, gives rise to a scene that often ends in insults and an assault. § 16] DOMESTIC STATUS 167 The proof that it is not the gravest crimes for which married women are responsible is consoling, but not so the fact that, on the whole, the criminality of married women is increasing while that of unmarried women is not. This increase of crime among married women corresponds to the spread of the causes of their principal offenses. The more women frequent public- houses, and the more large families are packed together in small spaces, the greater is the danger of conflicts. If we could prevent women from becoming more and more regular patrons of public-houses, and if we could introduce single, instead of large, tenement houses, the criminality of the mar- ried would soon fall below that of the unmarried, and the beneficial influence of family life would appear. I wish es- pecially to emphasize, however, that, even if these external conditions were favorable, it would still be necessary for us to do everything possible to prevent too early marriages. The greatest danger lies in them; unfortunately, the law does not permit us to hinder the marriage of those who are physi- cally and mentally immature and of those who are econom- ically incompetent. The reduction by the Civil Code of the age up to which the parent's consent is necessary, from 25 to 21, was a great error from the standpoint of criminal policy. A remarkable phenomenon is the high criminality of the widowed and divorced, which is lower only among those over 60 years. I must confess that I know of no explanation of this. Prinzing thinks,^ "the loss of the husband or wife often produces a mental disturbance in the other spouse; we may also suppose that many widowers find it difficult not to lose their moral balance." It is not clear why this latter should be so, particularly as we find the same high criminality among widowed and divorced women. It would seem more probable that some marriages are dissolved because of crim- * Loc. cit. p. 125. 168 THE INDIVIDUAL CAUSES OF CRIME [§ 17 inal acts, so that later crimes are only a continuance of the former mode of life. It is an error, however, to beheve that a widower (why not also a widow?) frequently becomes insane owing to " grief." If this does occur — I personally have never known of such a case — it must be only as an exception, without any bearing on criminal statistics. No explanation can be given at present. Light might per- haps be thrown on the subject if the widowed and divorced were considered separately. § 17. The Physical Characteristics of the Criminal The question whether psychic qualities appear in exter- nally visible phenomena has always attracted thinking men. The temptation to seek for such external signs increases with the consciousness of how difficult it is to decipher a man's character. Common experience of the ease with which we mistake others' thoughts and feelings positively cries out for objective signs to supplement our subjective judgment. The problem is still unsolved. The names of Lavater, Gall,^ Spurzheim, and Lombroso, as well as the interpretation of handwriting, represent efforts that are as various as they are different in value for finding such signs. Nevertheless, we are far from knowing reliable external signs of qualities of character. Hitherto all efforts in this direction have been in vain; they failed because the value of the few details they discovered was always exaggerated. Lombroso 's teachings have always been defended with more heat than objectivity, and it may be asserted of many of his opponents, that they have carried on a bitter fight against ' Gall is by no means merely a \'isionary or a swindler as many represent him to be. In fact, much credit is due him for his study of the anatomy of the brain, credit that has been forgotten in the justified attacks on his phren- ology. Compare Mobius, "Uber die Anlage zur Mathematik," Leipzig, 1900. Joh. Ambr. Barth, p. 197. § 17] PHYSICAL CHARACTERISTICS OF CRIMINALS 169 him wnthout having an absolutely clear idea of his doctrines. It is not so easy to form a clear idea, because in course of time he changed many of his original assertions. But to reproach him with having done so, seems to me entirely with- out justification; some of his untenable earlier statements gave way to better knowledge. Of one failing, however, Lombroso cannot be acquitted, of a surprising lack of critical faculty. He makes use of accurate and careful measurements, anecdotes and proverbs, statistical data and subjective im- pressions, inscriptions written on prison walls from monotony, observations of individuals and phenomena of masses, with- out distinguishing sharply between what is important and what is unimportant. In his later editions numerous statistics are repeated which are undeniably erroneous. This lack of reliability is due, in part, to the multifariousness of his pub- lications, which made deeper and thorough study impossible, but it is probably owing to natural superficiality. It would be unjust, however, to judge him only by his faults. They have simply made it easy for his opponents to stamp him and his doctrines as unscientific. I consider Lombroso's the- ory of the born criminal erroneous, nor do I agree with many of his assertions, but, just because I count myself among his opponents, I think it necessary to declare that, without him, criminal psychology would never have made the advance the fruitful results of which we are now gathering. I must acknowledge that Gaupp ^ is right when he says: "The researcher (Lombroso), with his wealth of ideas and his intuition, is a scientific phenomenon in whom much light and shade are united; the genuine kernel of his doctrines will long outlive the achievements of many of his sharpest opponents." * Gaupp, "Ober den heutigen Stand der Lehre vom 'geborenen Ver- brecher'" (MSchrKrimPsych. I, 33). 170 THE INDIVIDUAL CAUSES OF CRIME [§17 Kurella/ Lombroso's most faithful adherent in Germany, thus sums up the latter's doctrine of the "born criminal": "This hypothesis supposes that all true criminals possess a definite causally connected series of physical characteristics, anthropologically provable, and psychic characteristics, psy- cho-physiologically provable, which show them to be a partic- ular variety, a special anthropological type. This series of characteristics necessarily makes its possessor a — perhaps undiscovered — criminal, quite independent of all the social and individual conditions of life." Lombroso denies neither the significance of the individual's acquired characteristics nor that of social influences, he does not dispute the existence, either of criminals of passion, or of occasional and habitual criminals. In his last work ^ the dis- cussion of external causes even occupies by far the most space; the anatomical characteristics of the "delinquente nato" are almost entirely lacking. Yet he tenaciously holds to his theory that about 35% of all criminals ^ are born crim- inals, and that they bear numerous marks that differ from the normal. Before we proceed to examine the correctness of these views, especially in their further development, which represents the "uomo delinquente" as a peculiar, atavistic type, we must review what we know of the body and mind of the criminal. This is more difficult than it seems. Precisely in this field of investigation a tremendous amount has been produced; dilettantism works side by side with careful and critical re- search, and it is the more difficult to obtain a clear view be- cause we are concerned with the most complicated questions imaginable. We have no canon of the normal man by which * Kurella, " Naturgeschichte des Verbrechers," p. 2. * Lombroso, "Die Ursachen und Bekampfung des Verbrechena." » Ibid., p. 326. § 17] PHYSICAL CHARACTERISTICS OF CRIMINALS 171 to measure all deviations. We cannot simply compare the German with the Italian, the Northerner with the Southerner, for it needs but a glance to convince us that the average type of the Lombards or of the tall and vigorous people of the Romagna is far removed from that of the small Southern Italian. On the other hand, intermarriage between the races has resulted in a vast decline of the pure national type. This makes it even more difficult to adopt a type with which the criminal can be compared. A further obstacle lies in this, that we cannot easily obtain indisputably normal material for comparison. For, with a regiment of soldiers, for instance, even if we leave out all who have already come into conflict with the law, and all of ques- tionable mentahty — who are not lacking in the army — it is still a question whether, among those that remain, some are not criminally inclined. Many a man whose evil deeds are by no means slight has escaped criminal prosecution, and many another has only external and fortunate circumstances to thank for it that his criminal tendencies are active in a sphere that lies outside the criminal code.^ Most serious of all is the fact that we are unable exactly to define what must be recognized as a mark of degeneration. Kraepelin's ^ definition reads: "We are accustomed to regard certain defects in development which occur with some fre- quency among those of unfortunate heredity as physical signs of hereditary degeneration ('stigmata hereditatis')." But it is difficult to define the sphere within which all deviations in development must be regarded as still normal. Naecke^ is quite right in pointing out that we cannot ^ Ferriani, "Delinquenti scaltri e fortunati," Como, 1897. * Kraepelin, "Psychiatric," 7th ed., 1903, Joh. Ambr. Barth., Leipzig, L 122. ' Naecke, "Degeneration, Degenerationszeichen und Atavismus" (Arch. Krim. Anthr. I, 202). 172 THE INDIVIDUAL CAUSES OF CRIME [§17 regard as a sign of the degeneration of the nation in question anything that is ethnically conditioned. The conception "mark of degeneration" must always be determined in relation to time, place, age, and sex, and a certain margin for devi- ation from the average must always be allowed. It is less important for us whether the deviations from the average structure of the body, and defects in the development of its organs, are really to be looked upon as degenerative phenomena or as anatomical variations, as Stieda asserts. Among insane persons, criminals, and healthy persons, we find a varying number of anomahes, some of which bring about a considerable functional disturbance in the organs affected. We see that such malformations and deviations from the average type are rare among healthy persons and numerous among insane ones. We find, further, that they are most pronounced where injurious influences, alcoholic excesses of parents, for instance, have affected the children; and finally, experience teaches us that persons in whom several of such anomalies are found are thereby rendered inferior and less capable of resistance. All this justifies us in calling these disturbances in the organism marks of degeneration, in the clinical sense. ^ In 1899 Lombroso^ asserted that in the course of a few years the criminal-anthropological school had examined 54,131 in- sane, criminal, and normal persons. It is particularly diffi- cult to select the useful material from this abundance, because the results are often sharply and irreconcilably contradictory. Precisely in the sphere of physical examinations I have no systematic investigations of my own at my disposal. I be- ^ Naecke, "Uber den Wert der sogenannten Degenerationszeichen" (MSchrKrimPsych. I, 202). 2 Lombroso, "Neue Fortschritte in den Verbrecherstudien"; translated by Merian, Gera, 1899, C. B. Griesbach. § 17] PHYSICAL CHARACTERISTICS OF CRIMINALS 173 lieve, however, that it is possible, without quoting too many details and figures, to give a summary of the present status of such research. The brain and the skull claim our chief interest, the brain as the seat of the psychic functions, the skull because it is the key to the size and appearance of the brain. The latter is so complicated in structure that it is undoubtedly difficult to determine the boundaries of the normal. Even its most ex- ternal quality, weight, varies greatly. Welcker established a weight of 1388 grams as the limit of the normal. A later investigation undertaken by Handmann ("Archiv fiir Ana- tomic und Physiologic," 1906, p. 1) also established 1370 grams as the average weight of a grown man's brain. But while many eminent men had considerably heavier brains (Cromwell, Cuvier, Turgenieff, Byron, Schiller, Volta, and others) many who were not less gifted had brains weighing considerably less (for instance, Dante, the anatomist Dollinger, Gambetta, Gall) . The heaviest brains that Bischoff ^ himself observed belonged to ordinary and unknown workmen, and, lately, a brain weighing even well over 2000 grams has been found in an idiot. This is the best proof that it is not the outside measurements and weighable qualities, like size and heaviness of the brain, that are of importance, but its structure.^ Within the margin of the normal, the structure of the brain differs to such an extent that it is difficult to judge of the value of striking deviations. Moreover, a perfectly regular formation of the brain is no proof of mental health. Outwardly the brain may appear to be perfectly normal, but we may occasionally find serious changes in its cortex which cannot be combined ^ Bischoff, "Das Himgewicht des Menschen," Bonn, 1880, p. 136. * Draeseke, "Gehirngewicht und Intelligenz" (Archiv fiir Rassen- und Gesellschaftsbiologie, 1906, p. 518). 174 THE INDIVIDUAL CAUSES OF CRIME [§ 17 with mental health.^ Often neither a macroscopic nor a microscopic examination will disclose defects, although the possessor of the brain unquestionably suffered from a serious mental disorder. I mention this especially, because errone- ous ideas about the results of post mortem examinations often exist. They sometimes enable us, especially microscopic examinations of the cortex of the brain, to say definitely that disease existed, but never to affirm with certainty that the brain was healthy. According to Benedikt, Mingazzini, and others, the signifi- cance of the deviations in the configuration of the brain should lie in this, that within the margin of variation the brain convolutions found in criminals show atypical and atavistic formations much more frequently than do those found in normal individuals. A Russian anatomist, Sernoff,^ has lately made a special study of these deviations; his explanations deserve to be held in the highest esteem, because he has long devoted himself to the subject of the brain. He rejects most of the anomalies described, because he shows that, although they do, indeed, occur somewhat more frequently in criminals than in others, yet they are to be regarded as variations of the normal type of convolution. There was one exception to this rule: the separation of the calcarine fissure from the occipito-parietal fissure was found in 1% of the brains of normal persons, in 8% of those of criminals. Sernoff admits that this combination of convolutions "forcibly reminds one of the relations in microcephalic individuals and certain repre- 1 According to Kraepelin ("Psychiatrie," 7th ed., II, 823), "In two cases of congenital obtuse lack of feeling, which in both cases led to murder and the guillotine, Nissl found unquestionable chronic changes in the cells of the cortex, a proof that in people who, like these two, are not regarded as insane but as morally corrupt, a pathological condition of the brain may be found." * Sernoff, "Die Lehre Lombroso's und ihre anatomischen Grundlagen im Lichte moderner Forschung" (Biologisches Zentralblatt, XIV, 305). § 17] PHYSICAL CHARACTERISTICS OF CRIMINALS 175 sentatives of the animal kingdom, and that it has long been regarded as an atavistic phenomenon." All other deviations in the brain and skull SemoflF either denies outright or strips of their significance. This applies, above all, to the relative smallness of the frontal bone, or, rather, of that part of the frontal bone that covers the frontal lobes of the brain. The fact that the average value of this part of the skull is lower in criminals than in non-criminals is confirmed by Sernoff ; but at the same time he points out that there is no fixed relation between the size of the frontal bone and the brain lobes, that, on the contrary, a small fore- head often contained a frontal brain above the average in size and vice versa. TABLE XXXIV Pbogna- THISM Pbom. Obbi. Cdbve Receding fobeheab Kurella (3641 cases) Baer (968 cases) . . 12.6% 20.4% 11.8% 3.2% 7.9% 4.7% Still another assertion of the Lombroso school is recognized by Sernoff as correct. "The relatively strong development of the skeleton of the face with the resultant prognathism (protrusion of the facial part of the skull) and the receding forehead." These deviations are clearly shown in the two drawings taken from Kurella's book. In Table XXXIV Kurella's summary of the frequency with which these deviations are found is compared with Baer's calculations. I have purposely compared precisely these two authors with each other: Kurella who for years has been an eager and gifted adherent of Lombroso, possessing an unusual knowledge of the literature bearing on the subject, and who 176 THE INDIVIDUAL CAUSES OF CREVIE [§17 represents Lombroso's teachings in Germany, and Baer/ who, as an opponent of the theory of the born criminal, has based his view on particularly careful investigations of his own. Baer, also, as we see, confirms the fact that these deviations occur frequently. (Drawings from Kurella.) The angle hfg is used to measure to slope of the forehead, the angle hHn to measure the prognathism, which is seen externally in the pronounced pro- jection of the upper jaw and in the protruding teeth. These anomalies are usually combined with prominence of the orbital curve. The size of the skull has been the object of many detailed investigations. Kjiecht's ^ figures and Baer's do, indeed, diflfer, but they enable us to perceive that unusually small and strikingly large heads are not rare among criminals. Among 1214 convicts Knecht found as many as 2% with * A. Baer, "Der Verbrecher in anthropologischer Beziehung," Leipzig, Georg Thieme, 1893. 2 Knecht, "Uber die Verbreitung physischer Degeneration bei Verbrechem und die Beziehungen zwischen Degenerationszeichen und Neuropathien " (Allg. Zeitschrift fiir Psychiatrie, XL, 589). § 17] PHYSICAL CHARACTERISTICS OF CRIMINALS 177 pronounced hydrocephalic head formations, indicating path- ological processes in the earhest period of development. As often as a new field of criminal anthropological inves- tigations has been attacked, the same thing has been repeated. First, the assertion is made that a certain form of deviation is characteristic of the criminal. Then it is proved that the same phenomena are found in non-criminals, and finally, it is shown that these anomalies are somewhat more frequent in criminals. Hence, it would lead only to useless repetitions if I should take up each of the marks of degeneration in turn and speak of what has been found to contradict them. The most important physical signs of degeneration, such as ill- formed ears, extra fingers and toes, the abnormal position and formation of the teeth, abnormal formations of the sexual organs and the mammary glands, unequal development of the body, etc., are all found in healthy people as well. They are the more numerous, the nearer we approach to the de- generate insane. Between the two stands the criminal. Even Lombroso's most eager and decided opponents do not deny that degenerative signs are found particularly often in criminals. Thus Naecke ^ says: "We can only refer to a possible, perhaps probable, inferiority of those who bear the stigmata of degeneration, no more; even that, however, may be valuable in foro ' or to corroborate a diagnosis." And recently he has gone farther:^ "The longer and the more accurately we investigate, the more do we value the doctrine of degeneration, without, however, trusting to it blindly, as do some of the Italians." I should not care to go as far as Naecke in the forensic * Naecke, "Degeneration, Degenerationszeichen unci Atavismus" (Arch. Krim. Anthr. I, 216). ^ Naecke, "Uber den Wert dor sogenannten Degenerationszeichen" (MSchrKrimPsych. I, 108). 178 THE INDIVIDUAL CAUSES OF CRIME [§18 judgment of a criminal; I consider it inadmissible to make even the slightest use of the existence of marks of degeneration, even in the most pronounced form, to tip the scale in a case of questionable guilt. Nevertheless, what cannot be applied to the individual criminal may yet have general validity. I share this view with Baer, who, in spite of his cautious criticism, is obUged to admit: "Abnormalities of a simple or graver kind are often found in criminals singly, or in larger numbers, and although there is nothing specific in them, yet they are signs of the inferior value of the criminal's organization." ^ In reality, we should not wonder at finding so many crim- inals physically inferior; the contrary might well excite surprise. By far the largest number of criminals come out of classes in which poverty and wretchedness are common, in which underfed women during pregnancy must often use up their strength in hard work; the unborn child is often poisoned in the germ by the drunkenness and disease of its parents. This cannot be met with the statement that our poorer classes are still able to provide a physically fit army. Not all those degenerate, who are subject to the conditions of degeneration; not all, but many. The descent of criminals (compare p. 124) proves that the recruits of the criminal world are most often found among the children of drunkards and the insane, among the poorest of the poor; in view of this, the existence of signs of degeneration ceases to be striking, and the signs themselves cease to bear the specific character of a phenomenon peculiar to crime, § 18. The Mental Characteristics of the Criminal In considering these mental characteristics we are on firm ground as long as we keep to the intellectual abilities. The ' Baer, he. cit. p. 117. § 18] MENTAL CHARACTERISTICS OF CRIMINALS 179 degree of knowledge and the power of judgment that a man possesses can be ascertained. On the other hand, we at once enter upon an uncertain field as soon as we examine the emotional life, the passions, the moral sense; then we turn from objective facts to subjective impressions. The fact that the intellectual capacity of the criminal is far below the average has already been made the subject of a detailed discussion. The experience of teachers and over- seers in penal institutions fully confirms it. The subjects in which the teacher instructs the prisoners are extremely elementary, and yet the results of his efforts are pitifully small. Undoubtedly the dislike of learning plays a part, but it is certainly not all-important. A superficial examination of 405 prisoners with sentences of over six months showed me that, apart from 31, whose mental state I shall speak of later, 67 were more or less feeble-minded, certainly far below normal in their intelligence; 8 of them were decided imbeciles, almost idiots. Both Baer ^ and Kirn ^ have tried to combat Lombroso's teachings, and Baer in particular has spent infinite pains in examining the assertions of the Italian school, with a view to corroborating or refuting them; both, however, have empha- sized the low plane of the criminal's intellectual development, Baer expressly pointing out that "social environment and educational conditions cannot be held accountable for it." Hence Sommer ^ is undoubtedly justified in saying: "In the general rejoicing at the refutation of Lombroso in detail, the positive facts were entirely overlooked, which he [Baer] contributed to the doctrine that there are inherent momenta that lead to crime." > Baer, loc. cit. p. 246. * Kim, " Geistesstbrung und Verbrechen. Festschrift der Anstalt Elenau," Heidelberg, 1902, p. 97. * Sommer, "Kriminalpsychologie," Leipzig, 1904, p. 313. 180 THE INDIVIDUAL CAUSES OF CRIME [§ 18 I purposely emphasize so strongly the low mental status of criminals, for it explains, without the aid of unprovable the- ories, why, with many criminals, the ethical perceptions are so strikingly distinguished from those of the average man. The weak-minded are generally children of the moment. Everything makes a deep impression on them for the minute; often, indeed, the mental response is particularly vivid; but this momentary leaping up of the intelligence subsides again as quickly. The lessons of experience, which serve normal persons as a guide in later events, soon fade, because they cannot be fitted into the existing condition of the ideas. The inability to understand, much less to form general points of view, is the direct result of mental weakness. This is the picture that many criminals present to us. I must confess that, after reading the papers in the case, I was often prepared to see a rough, brutal man, when, in reahty, I found a quiet, docile, and even good-natured, feeble-minded fellow. This is true not only of those who are sentenced for the first time; precisely among people with long criminal records I often found such quiet, feeble-minded persons; by this I do not mean imbeciles of such defective mentality that our existing laws would classify them as irresponsible. These people — and this applies also to a large number with average intelligence — are often strikingly unstable, — not in the penal institutions, where they often submit to the regulations of the house without any difficulty, where they work industriously under pressure, but when at liberty, when, in spite of the best resolutions, they give way to the first temptation. At present we are not able to describe the psychology of the criminal. In the first place, because the material from the details of which we should construct a complete image is too varied. All attempts to determine the main characteristics § 18] MENTAL CHARACTERISTICS OF CRIMINALS 181 fail on account of the difficulty of exactly defining these char- acteristics, and on account of the danger of generalizing from particularly striking individual observations, I do not wish to underestimate the value of the careful analysis of the especially striking phenomena of crime, when I assert that, on the whole, we can learn little by it at present. Every case certainly has its peculiarity, and practice in observation alone makes the pains spent on it worth while. But we must not forget that it is not the murderers, not the swindlers on a larger scale, not the assassins of people in high places, and not the sexual murderers, that determine the criminal physiognomy of our day, but the thieves and pickpockets, the swindlers and abusers of children, the tramps and prostitutes. These are the criminals that first demand our attention. The very fact that all these ofiFenses are so frequent, makes it possible slowly and cautiously to draw conclusions from the analysis of individual cases, conclusions that may lay claim to univer- sal validity. As long as we are satisfied to examine the most external phenomena, to ascertain the intellectual capacity, the error that consists in valuing simultaneously the most different kinds of criminality is not so great. But as soon as we go deeper and begin to study the passions, the moral perceptions, the degree of altruistic thought, remorse, and similar qualities, we must restrict ourselves to a few psychologically similar crimes. Otherwise we make the same mistake that we rightly object to in the works of some of the Italian school. Let us, however, go on collecting material and studying a few par- ticularly interesting cases. The day will come, in time, when we can draw our conclusions from them. But we have not yet reached this point. What has been written of the characteristics of criminals must be used with great caution, except where the most elementary qualities are concerned. I think it a mistake to 182 THE INDIVIDUAL CAUSES OF CRIME [§ 18 regard most of the experiences, or rather general impressions, that have been collected, as typical characteristics of crim- inals. It, therefore, seems to me unjustifiable to speak of them in general, as has been done, as brutal. We find senti- mental inclinations opposed to the most outspoken brutality in some cases, utter deceitfulness contrasted with naive frankness in others, and, what is still more striking, we find the most contradictory qualities united in the same individual. This is another sign of the instabihty mentioned above; carried away by the mood of the moment, the same individual is sometimes devotedly unselfish, sometimes purely egoistic. One characteristic must be spoken of especially: the criminal's own judgment of his act. I should like to avoid the word "remorse," because the sorrow that is often displayed for what has happened frequently does not correspond to an inner feeling, because pretense, in order to stand well, is too easily bred, according to the tone of the penal institution. In the course of many conversations with criminals of all kinds and all classes, I have most frequently been struck with the superficiality of the criminal's comprehension of the gravity of his crime. Almost never did he grasp the repre- hensibleness of his deed with sufficient force to give rise to the thought whether he could not make good the damage he had done. As a rule, his understanding was directed more towards the future than towards the past. Thus, he might firmly resolve not to relapse again, but would scarcely be tortured by thoughts of the past, beyond regretting that he would be marked as having served a sentence. The conviction that the present penalty is the last that they will undergo is often heard, even from those criminals who have always been only temporarily at liberty; on the other hand, criminals have often told me that they fear it will not be long before they again relapse into crime. Very rarely, on the § 18] MENTAL CHAEACTERISTICS OF CRIMINALS 183 contrary, and only in those intimate moments that occur often enough between the physician and the convict, particu- larly when the latter is ill, have I heard a man express the intention to resume his criminal career as soon as his sentence shall have expired. I do not mean to infer that this idea is remote from the criminal's mind; the contrary is proved by the fact that, even within the prison walls, plans are often enough discovered for the carrying out of new thefts. Never- theless, I think I am justified in concluding that the criminal is not so often anxious to take up his old life as is commonly supposed. It must not be forgotten, however, that I speak mainly of convicts in prisons, who are the only ones that I have been able to observe more carefully. Undoubtedly, more professional thieves and swindlers are found in the peni- tentiaries. The groups of prisoners in the centres of culture, too, may display other traits. Among the psychological characteristics of the criminal, Lombroso also includes the thieves' slang and the desire to be tattooed. He sees in these tattooings the bridge that leads to the savages, who also ornament their bodies in this way. It is true that criminals are often tattooed with all kinds of designs, from the simplest marks to the most intricate, often, even, really pretty representations of animals and plants, in- cluding trade and vocational signs, and human figures of all kinds, especially those of acrobats, contortionists, etc., as well as names and verses of all sorts. But this ornamentation is not a sign of the criminal world nor of psychic degeneration, but merely a regrettable custom that happens to be very popular in Germany at present. It shows local differences very distinctly. Tattooing is extremely common among seamen, and not rare, but with local differences, among factory workmen and soldiers. A man who knows how to tattoo pretty pictures often persuades whole regiments to let him 184 THE INDIVIDUAL CAUSES OF CRIME [§18 try his art. Hence, tattooings are altogether valueless as psychological data. But perhaps we might infer something about a man from the subject of the designs he bears. This is certainly the case in so far as obscene images are concerned. WTiere we find tattooings on the genital parts, unusually vulgar figures, or those that suggest perverse sexual inclinations, we know that the individual who bears them is not given to prudery. A large number of girls' names, too, characterize a man better than a "dissipated appearance" would. Fortunately, here in Germany, images of unmistakable sexual significance are rare. On the whole, we must be most cautious in inferring criminal peculiarities from such marks. I consider the proverbs and sayings that seem to indicate a whole tragedy utterly without significance. Lacassagne ^ found, for instance, the mottoes: "fils du malheur, " "le passe me trompe," "I'avenir m'epouvante," "le present me tourmente"; but, among 700 individuals, the first saying was borne by eight, the last by three, persons. The fact that the words were repeated more than once would lead me to suspect that the man who tattooed them, rather than the individual who bore them, was responsible for the choice, and that they indicated, at most, merely an inclination to pose. And even that seems to me to be assigning too great a psychological significance to them; at least, several times when I asked a man why he had chosen certain proverbs, such as "learn to suffer without complaint," or "born to mis- fortune," I was told that the professional tattooist had recom- mended them as "particularly beautiful." Thus, tattooing loses much of its significance as a sign of criminal tendencies. But, because of its practical importance, I must not omit to mention the fact that many tattooed per- ^ Lacassagne, "Les tatouages," Lyon, 1887. § 18] MENTAL CHARACTERISTICS OF CREVIINALS 185 sons have been thus adorned while in prison awaiting trial, as I and various other observers were able to ascertain.^ Thieves' slang was formerly an extremely characteristic mark of the criminal. Just as every class, every profession, is inclined to use certain expressions with secondary meanings, to coin special, peculiar terms — think, for instance, of stu- dents' slang — so, too, it is in the criminal world. Formerly a great deal of attention was paid to the different variations of this thieves' slang, to the "Rotwelschen," Romany, and foreign language, especially Hebrew, elements.^ Even today in pro- fessional criminal circles, numbers of specific expressions are undoubtedly current, but German words with a humorous tinge are rapidly taking the place of foreign terms, especially among tramps. There is still undoubtedly some difference in the terms used by the different kinds of criminals, and this sometimes makes it possible for the man of experience to distinguish the common tramp from the individual who makes a business of swindling peasants, the habitual thief from the procurer. But I do not think that Stumme ^ is right in calling thieves' slang a secret language; it is rather a vocational language, and proves nothing but that the person who speaks it has had the opportunity of learning it; at most, it shows with what class of people he has associated. The study of thieves' slang is still justified today. But not as a contribution to the psychology of the present-day criminal world. Ellis * probably best characterizes the situation when 1 Berger, "Tatowierung bei Verbrechem" (Vierteljahrsschrift f iir gericht- liche Medizin, XXXII, p. 56). 2 Ave-Lallemant, "Das deutsche Gaimertum," Leipzig, 1862, F. A. Brock- haus, IV. ^ Hans Stumme, "t)ber die deutsche Gaunersprache und andere Geheim- sprachen." * Havclock Ellis, "Verbrecher und Verbrechen," Leipzig, 1895, Georg H. Wigand's Verlag, p. 183. 186 THE INDIVIDUAL CAUSES OF CRIME [§19 he says: "The modern professional criminal avoids it just as he avoids tattooing." On the whole, no traits can be recognized in the psychology of the criminal that are characteristic of him, nor could this be expected when we consider the general way in which the ques- tion has hitherto been treated. We might rather hope for success if we studied certain kinds of criminals separately. I believe that certain criminal specialists, as, for example, the "high flyers," the pickpockets, certain sexually immoral criminals, procurers, prostitutes, and tramps would show special peculiarities. I do not believe, however, that these characteristics will ever permit us, without knowing the person's past, to infer criminal tendencies, that they mean more than a certain menace in a definite direction. § 19. Mental Diseases among Criminals Our penal code does not call those transgressions of the legal order that are committed while the perpetrator is insane or unconscious, crimes (§ 51). Official statistics, therefore, leave us entirely in the lurch when we consult them as to the frequency of those crimes which could not be punished because of mental disease. We are altogether dependent on the scattered records of alienists. In Dalldorf, among 1706 insane persons, Sander ^ admitted 112 (6.6%) directly after they had come in conflict with the criminal law. In counting the patients in the Heidelberg clinic for the insane, I found much higher numbers. On three days, in three diflFerent years, I found,2 Qnce 37^^ once 43%, once 57%, of the male patients who, at some time before their admission, had offended seri- 1 Sander und Richter, "Die Bezlehungen zwischea Geistesstonmg iind Verbrechen," Berlin. 1886. 2 "t)ber gefahrliche Geisteskranke " (Allg. Zeitschrift fiir Psychiatric, LVII. p. 138). § 19] MENTAL DISEASES AMONG CRIMINALS 187 ously against the criminal laws. It is true that a consider- able number were prisoners awaiting trial, whose mental condition was being observed, and tramps, so that my figures are probably well above the usual average. A description of the crimes that are committed by insane persons does not lie within the scope of this book; it belongs in the text-books on judicial psychiatry.^ Nevertheless, stress must be laid on the fact that the mentally diseased are a menace to legal security, as the newspapers daily show us. The immeasurable misery that insane persons cause can only be avoided by their early admission into sanataria and asy- lums. Hence, every attempt to require the establishment of insanity and danger to the community at large by some kind of legal procedure before the patient can be sent to a suit- able hospital, is superfluous, if not injurious to the insane person, and a blow in the face of public safety. It is also difficult to ascertain the number of the insane in penal institutions. Partly because there is no sharp dividing line between health and disease. This is true, principally, in the large sphere of congenital and acquired feeble-minded- ness. The alienist who, in daily contact with such patients, has the opportunity of observing carefully the phenomena of idiocy and imbecility will include among the mentally dis- eased many feeble-minded persons that the layman, the prison warden, and the judge consider normal. It is difficult to con- vince either of them of the contrary opinion, because many feeble-minded persons conduct themselves blamelessly within the prison walls, where the system of the institution and their work relieves them of the task of thought, and where the temptations of the outside world are lacking. ' Hoche, "Handbuch der gerichtlichen Paychiatrie," Hirschwald, Berlin, 1901; Cramer, " Gerichtliche Psychiatric," 3rd ed., Gustav Gischer, Jena, 1903; Delbriick, "Gerichtliche Psychopathologie," Ambr. Barth, Leipzig, 1897. 188 THE INDIVIDUAL CAUSES OF CRIME [§19 Not all the feeble-minded, however, are numbered among the docile, quiet members of the prisons. Sometimes they come to grief on the demands that are made of their power of comprehension; then their foolish obstinacy is aroused, their emotional excitability is increased, and this leads to the most unpleasant scenes, to senseless raving and screaming, to abusive language, and assaults on attendants. Still more frequent are scenes with epileptics in which it seems as if the fury that has been accumulating for a long time and has been restrained with diflBculty, suddenly breaks out. The conception of this disease includes periodicity, the change from completely normal behavior — assuming that epileptic idiocy has not already occurred — to pathological disturb- ances of the consciousness. On this soil, especially, the very slightest cause is often sufficient to kindle an irritability that is expressed in wild raving. The contrast between the per- son's usual quiet demeanor and these sudden outbreaks makes it very difficult for the layman to recognize their pathological origin. They are injurious, not only to the patient, who is, of course, subjected to the most severe disciplinary measures, but also to the discipline of the institution. In the interests of the execution of the penalty, as well as from a medical standpoint, it is imperative that these and other pathological conditions should be immediately recognized for what they are, that they may be prevented in the future. Many physicians, unfortunately, are hampered by a lack of psychiatrical knowledge. In addition, the time that is at the disposal of most physicians in which to make their own observations is generally insufficient, the reports of the offi- cials in the institution are incomplete and frequently influenced by the unfortunate tendency to regard many symptoms as simulated. All this makes it difficult to see the case clearly and dispassionately, and thus it happens that what for years § 19] MENTAL DISEASES AMONG CRIMINALS 189 has been considered due to malice and criminal qualities sometimes is later recognized as the expression of a psychic disease. The difficulties of ascertaining how many insane persons are serving sentences are reflected again in the variation of the figures that represent the diflFerent institutions in the statis- tics of penal institutions and prisons published by the Prus- sian Ministry of the Interior. As a whole average for the last three years, I have reckoned, from the figures for peni- tentiaries, 1%, from those for prisons, 0.24%, insane persons. In itself, this low percentage is not surprising, although in the prisons, at least, the numbers do not reach 4 to 1000, which, according to the general opinion, is the proportion of the in- sane to the whole population. According to the laws, the gates of penal institutions should, indeed, be closed to the insane; thus there would remain only those who become insane while they are serving their sentences. In reality, however, the situation is very different. Those persons who have committed a crime during or in consequence of their mental disease have been classified as "criminal insane." Krohne ^ has taken exception to this term because it "tears away the foundations of all penal justice, which is expressed, both in the rule of the Sachsenspiegel : 'the real fool and the senseless man shall not be judged,' and in the Code Penal: 'II n'y a ni crime ni delit en cas de demence.'" Every psychiatrist certainly represents this point of view, but, unfortunately, not every judge. As a matter of fact, we find real fools and senseless men enough in all penal institutions, some of whom have been sentenced even in spite of an alienist's report. Hence, the term "criminal insane" must only be understood in the sense of insane persons who have committed some act ' Krohne, loc. cit. p. 273. 190 THE INDIVIDUAL CAUSES OF CRIME [§ 19 that is punishable according to law. It is not easy to ascer- tain afterwards how large their number is among the convicted; at least, the judgment is not so reliable later, as when the effort is made to separate them as soon as they are committed. Yet I should mention that, of all the insane women in the Hubertusburg institution, Naecke ^ reckons that from 20% to 25% were mentally diseased when sentenced. Scheven ^ found that, of 114 criminally insane persons in Mecklenburg who were admitted to the insane asylum, either from penal institutions while awaiting trial, or while at liberty, 49 had been unjustly punished. Also, among the criminals who, while serving their sentences, were transferred to the hospital for the insane because of a psychosis, that is, among the so- called "insane criminals," there were probably many who did not become insane during imprisonment, but whose disease was recognized then; accordingly, Scheven estimates the percentage of insane persons who were convicted in spite of their condition to be about 34% of all the insane persons who come into conflict with the criminal code. These miscarriages of justice are distributed over many years; nevertheless, the proportion of such errors is not in- considerable. I can corroborate this by the result of my own investigation.^ For more than three years I have examined systematically and indiscriminately into the mental condition of every criminal committed to the penal prison in Halle for an offense against sexual morality, after having learned as much as possible of the person's past from the documents and records of the local authorities. Of the 200 such criminals 1 Naecke, "Verbrechen und Wahnsinn beim Weibe" (Allg. Zeitschrift fiir Psychiatric, XLIX). * Scheven, " Geistesstorung und Verbrechen in Mecklenburg-Schwerin" (Arch. Krim. Anthr., IV, 266). ' Aschaffenburg, "Zur Psychologic der Sittlichkeitsverbrecher" (MSchr. Krim. Psych. II, 399). § 19] MENTAL DISEASES AMONG CRIMINALS 191 that I examined, only 45 were entirely normal, and, even of these, alcohol had been the provocative agent of the crim- inal action in twelve cases. Ten suffered from senile decay (all sentenced for indecent assaults on children), 2 from dementia due to calcification of the arteries, 4 from other kinds of psychoses, 1 from dipsomania, 1 from severe hysteria. Fourteen were idiots; 3 feeble-minded persons and 9 epileptics had to be counted irresponsible, because their diseases were combined with drunkenness or other detrimental momenta. Thus 44, nearly one-quarter, un- questionably belonged in an asylum for the insane, for idiots, or for the aged, instead of in prison. But even the others, who were not considered irresponsible, showed more or less serious psychic anomalies, especially feeble-mindedness, epi- lepsy, chronic alcoholism, etc., so that only 45 could be pronounced unquestionably normal. There were only 99 whom I should have reported to be entirely responsible, or very slightly affected in their responsibility, if I had been called upon to examine them as an expert. Fritz Leppmann's ^ examination of the inmates of the peni- tentiary in Moabit produced a similar result. He found only 30 normal men among 90 convicted of rape or of assaulting children, and in Moabit there are no men over 40 com- mitted for offenses against chastity, above all no aged men, who may all be considered psychically defective, even if not entirely irresponsible. Among the beggars and tramps that he examined, Bon- hoffer ^ found 12% who were insane to such a degree that § 51 of the Penal Code would apply to them. "Much larger, as would naturally follow, was the number of those who, ' Fritz Leppmann, "Die Sittlichkeitsverbrecher, eine kriminal-psycholo- gische Studie" (Vierteljahrsschrift f. gerichtl. Medizin, N. Folge, XXIX, 2). ^ Bonhoffer, loc. cit. p. 56. 192 THE INDIVIDUAL CAUSES OF CRIME [§19 from a psychiatrical point of view, would be classified as having 'decreased responsibility.' If we should include all those with slighter acquired or congenital psychic defects, all imbeciles, epileptics, inebriates, senile individuals, and those that were pathologically irritable, the number would exceed 75% of the whole." The mental condition of other criminals is probably not as bad as that of tramps and criminals against sexual morality. But from the foregoing it may well be concluded that the alienist should be more frequently consulted, especially where offenses against chastity are concerned, and his report taken more into account. If this were done, many of the cases of Ulness in penal institutions would disappear. A small number of the psychoses that break out in prison is due to the alcoholism that is so common among criminals, a number to epilepsy. Some delinquents, however, show the first signs of disease during their imprisonment, and the most careful examination reveals nothing that would justify us in assuming that the first symptoms were present before the criminal act was committed. The peculiar symptoms of this psychosis, which is generally characterized by auditory hallu- cinations while the mind is otherwise quite rational, has led to the recognition of a special form of disease, "prison de- lirium. " This is of importance, inasmuch as the frequency of this condition was often attributed to the cell system, solitary confinement, and isolation, and a dangerous enemy to this so beneficial institution of our penal system was thus created. Subsequent experiences, however, have proven that this fear, if not entirely groundless, was at least of small significance. Riidin ^ found that, among 94 diseased prisoners, " confine- 1 Riidin, "Die klinischen Formen der Gef angnispsychosen " (AUg. Zeitschrift f. Psychiatric, LVIII. 497). § 19] MENTAL DISEASES AMONG CRIMINALS 193 ment symptoms" appeared in 28 cases. Of these, 22 were psychoses of which the symptoms had merely been given a peculiar tinge by imprisonment, and the other 6 too were probably identical with diseases that also occur outside prisons. The symptoms appeared 18 times in solitary con- finement, 10 times in common confinement. One thing may be said with certainty: in general, the diseases that occur during imprisonment are identical with those that occur in persons who are at liberty, and all that can be attributed to confinement is the predominance of certain symptoms. In any case, "convict's insanity," if it exists at all as an in- dependent psychosis, is extremely rare. My own experiences lead me to agree entirely with this view of Riidin's. The idea that solitariaess awakens in the criminal feelings of remorse, that the shades of his victims surround him threateningly, that despair overwhelms him, till he is no longer able to think clearly and collapses under the torments of his conscience — all these fine ideas cannot stand in the face of sober observation. Prison or penitentiary may, indeed, hasten the criminal's lapse into insanity occa- sionally, — in rare cases, perhaps, even cause it; but, as a rule, the penal institution merely happens to be the dwelling, at the moment, of the person in whom the disease breaks out. When we consider that most convicts are encumbered by heredity and have not lived in accordance with the laws of health, we cannot wonder that they often develop mental disease. In the penitentiary of Waldheim, Knecht ^ found that 7% of the individuals were so burdened with psychic defects, or so disposed to psychoses, that they developed mental disease either before or during their imprisonment. Baer ^ ' Loc. cit. p. 595. ^ "Lehrbuch der Gefangniskunde," Ferdinand Enke, 1889, p. 260. 194 THE INDIVIDUAL CAUSES OF CRIME [§19 found a somewhat lower percentage: of every 100 prisoners, at least 5 had mental defects, and of these, 2 had pronounced mental diseases. As I have mentioned, on one day, of the 405 prisoners with sentences over six months that I examined, 67 were distinctly sub-normal. Of these, 8 were feeble-minded to such a degree that they absolutely deserved the protection of § 51 of the Penal Code. Eleven men suffered from the most various forms of mental disease, some of them from senile insanity. Besides these 19, I found hysteria in 1 case, epilepsy in 10, and nervous disturbances of a serious nature in 9 others. From my own experience I must add that even grave psychoses often for a long time elude the eye of even a prac- ticed observer, unless they afiFect the person's outward de- meanor. The longer and the more frequently the physician sees such patients, the more certain, of course, will his diag- nosis be. Hence, the observations of convicts that have been made during long years in the penitentiary are the most valu- able. Most significant is Krohne's ^ judgment, for he cannot be reproached, as alienists so often are, with being prejudiced in favor of insane persons by his profession. He says: "Ac- cording to my careful investigations, made with the co-opera- tion of the institution's physician. Dr. Werner, and the two specialists. Dr. Richter and Dr. Langreuter, both of whom are certainly experienced in this field, the number of the men- tally deficient in the penal institution Moabit amounted on an average to 10%, and yet the inmates of this institution are all penitentiary prisoners with sentences ranging up to 4 years, those under 25 having been committed, whether or not there was any former conviction against them, and those over that age and under 40 being men who have not already repeatedly served prison or penitentiary sentences. Thus ^ "Lehrbuch der Gefangniskunde," Ferdinand Enke, 1889, p. 260. § 19] MENTAL DISEASES AMONG CRIMINALS 195 the institution does not harbor any completely depraved habitual criminals, nor any aged and weak-minded ones." The suspicion is involuntarily forced upon the layman that a large number of these apparent cases of illness may be boldly simulated. In reply, one thing may be definitely as- serted, the simulation of psychoses is as difficult as it is rare. Attempts to "play the raving madman" do, indeed, occur occasionally, especially in large cities like Berlin, where the opportunity to study the subject is easier to find. But all such attempts are strangled at once if the prisoner knows that he is confronted by a specialist; usually a quiet serious demeanor suffices to cause the symptoms to disappear. Then it is that the difficult task still lies before the alienist of finding out whether the individual is not really insane after all, for experience teaches that simulation is generally tried by insane persons. Hence, I will only mention my own ex- periences. Among the unusually large number of prisoners held for examination whom I have seen in the course of my psychiatrical practice, there were only 4, if I except some acting that lasted for a day or two, who showed symptoms for a lengthy period which we thought were simulated. Of these, 2 later proved to be incurably insane, and I do not hesitate to pronounce our diagnosis as erroneous in at least one of the other eases, although perhaps it was un- avoidable. In two other cases, besides the simulated symptoms, there was pronounced feeble-mindedness, although in neither was it of such a high degree that I could apply § 51 of the Penal Code. Quite striking are Longard's remarks (on moral insanity, "Archiv fiir Psychiatric," XLIV, No. 1), in which he says that in no case where, together with the physicians of public insane asylums for instance, he diagnosed simulation, was he successful. In every case, even in one in which the 196 THE INDIVIDUAL CAUSES OF CRIME [§ 19 criminal himself confessed that he was simulating, the individ- uals proved to be insane after all. The fact that I have met with no simulant who was un- mistakably normal, and with very few in any case, is cer- tainly due to chance, for other psychiatrists of cautious and experienced judgment have occasionally found simulants;^ nevertheless, cases of pure simulation without any patho- logical basis are isolated exceptions. Brief attacks of pretending to be insane, particularly to be imbecile, are more frequent, both before the examining judge and while serving sentence. But they are rarely long or consistently carried out. The criminal judge and the prison official ought gradually to recognize this. If an un- fortunate prejudice did not exist, and if, whenever a striking symptom appears, the suspicion did not arise that it is merely simulated, examination by a specialist would more often be demanded, and thus many an individual who, according to our laws, must be regarded as innocent, would be delivered from the prison and the penitentiary. The officials in penal institutions, too, who are inclined by their daily contact with criminals to think the worst of prisoners, should be more influenced by the general experience of specialists. If they were, persons who are psychically unbalanced would not so often have to taste the extreme severity of disciplinary pun- ishments, and all possible methods would not be employed to break the obstinacy of a supposed simulant. Such measures are all in vain, for they are directed against a symptom that does not exist, against simulation, and because it is attempted to influence a man who cannot be influenced because he is insane. This cannot be remedied until the distrust of the physician disappears, and the institution officials are familiar with at least the first principles of psychiatry. The earliest * Bresler, "Die Simulation von Geistesstorung und Epilepsie," Halle, 1904. § 19] MENTAL DISEASES AMONG CRIMINALS 197 possible recognition of the prisoner's condition will then spare him unnecessary punishment, and the discipline and order of the institution will only gain, because the patient will soon be removed from his unsuitable surroundings. The enormous frequency among criminals of mental disturbances and aberrations in the widest sense of the word suggests the question, what relations exist between the ab- normal mode of thought of the insane and that of the crim- inal? Past experiences forbid us to draw a sharp dividing line , between the two. I will only mention as the example of a psychosis, softening of the brain, the symptoms of which, known in part also to the layman, most easily admit of the proof that we are concerned with a serious and incurable dis- ease. Clinically, we have known this disease only since 1826. How many diseased persons before that must have been mis- understood and, with their inclination to criminal actions, have been delivered over to the criminal judge! What we have experienced in regard to softening of the brain and some other diseases may be repeated at any time. Certain symptoms may combine in a certain aspect of disease that is as yet un- known to us, and thus the boundary of mental health would again be removed. A sharp separation of the mentally normal from the psy- chically diseased criminals also hinders the knowledge of what are called "borderland conditions." ^ One flank of the whole army of the feeble-minded, the hysterical, the epileptic, of those who suffer from persistent hallucinations and from neurasthenia, of those who are injured by the habitual abuse of alcohol or morphine, stands beyond the boundary of crim- inal responsibility; but where only the very slightest degree exists, the person must be pronounced responsible. I shall return to the importance of these "borderland states" in ' Hoche, loc. cit. p. 533. 19S THE INDIVIDIWL CAUSES OF CRBIE [§20 criminal prosecution; here their significance is merely that of a bridge from the dangerous insane to the dangerous criminal. Both, criminality and mental disease, are plants that draw their nourishment from the same soil, physical and mental degeneration. The fact that this soil is not able to produce better fruit must be attributed to intemperance and wretched- ness, to the marriage of mentally deficient persons, iu short, to unfortunate social conditions. VThy it is that one child of a drunkard will be epileptic, idiotic, or insane, and another, with no discernible psychic defect, but irritable and unstable, will become a criminal; why one of a depraved family's badly brought up children will turn drunkard and end in the insane asylum, while another finds his way to prison, we do not and never shall know. S 20. The Classification of Criminals In spite of some alterations in his classification of crim- inals, Lombroso ^ continued to maintain that perhaps one- third of all criminals represented a special type distinguished by common physical and mental qualities. He considered the proof of these physical and psychic anomahes of particu- larly great value, because to him they were signs that the "delinquente nato" was an ata\'istic step in the development of mankind. This assertion is, at present certainly, entirely unfounded. The dividing line between the really atavistic formations and the anomahes that arise in earhest youth, or during foetal development in consequence of pathological processes, is just as difficult to draw as that between the anomalies themselves and the variations that still lie within 1 Lombroso, "L'anthropologie criminelle et ses recents progres," Paris, 1S96, Felix Alcan, p. 92: "Ursacben und Bekampfung des Verbrechens," 190i, p. 326. §20] CLASSIFICATION OF CRIMINALS 199 the margin of normality. The most able judges in this sphere, the anatomists, and among these, above all, SernoflF, reject the atavistic significance of most of the variations found by Lombroso and his followers. Similarity in anatomy and mental qualities to savages and the peoples of former ages has been used to support the theory that the criminal signifies a relapse which may lead "beyond the savage, to the animal itself." This hypothesis stands on very uncertain feet; the life and doings of primitive peoples are often very different from the rough and unchecked brutality, cruelty, and other characteristics which are ad- vanced as the basis of the likeness between savages and criminals. Entirely mistaken is the comparison between crime and epilepsy. The "epileptic background, from which the clinical and anatomical picture of the morally insane person and of the born criminal is projected, acts as a medium for the com- prehension of the directness, the periodicity, and the para- doxical contrast of their symptoms, which, without doubt, are their most prominent characteristics." This view is based on an entire misunderstanding of epilepsy. A criminal never shows epileptic characteristics unless he is suffering from this disease. This is common enough and is easily explicable, if we know the frequency of epilepsy among drunkards and the children of drunkards. But the only thing that crime has in common with epilepsy is the common soil of degeneration. All of Lombroso 's attempts to separate the born criminal from the normal man by bringing him into connection, partly with atavistic, partly with pathological, states, have come to grief; and so has the endeavor to characterize the criminal "clinically and anatomically." We must never infer criminal tendencies from the existence of all kinds of stigmata 200 THE INDIVIDUAL CAUSES OF CRIME [§20 of degeneration, just as the fact that an individual is de- scended from insane parents and bears numerous stigmata does not justify us in assuming that we have to do with a psychically diseased person. The decided rejection of any pathognomonic value of crim- inal anomalies, in which almost all German scientists without exception are agreed, has aided in refuting two problems,^ which must be kept quite separate, namely : 1. Whether born criminals exist. 2. Whether this congenital moral abnormality expresses itself in tangible, morphological signs. Sommer aflSrms the first question "unconditionally." Kirn,2 ^qq^ o^nd Baer ^ are obliged to admit, in the same breath in which they speak of the theory of the born criminal as refuted, that at least we are concerned with inferior human material. "In any case, so much is certain, that the average habitual criminal is below the average mental plane of human- ity in general." * The analysis of what we have ascertained concerning the body and mind of the criminal leads to the same conclusions. Intellectually and physically they fall below the average. This does not apply to the individual, but to criminals as a class, just as we may say of a race that it stands on a low plane without intending to intimate that it lacks physically strong and intellectually eminent men. As we have seen above (p. 124), inferiority is the result of descent and training. Thus, the roots of the evil are trans- ferred to the social sphere. The great advantage of this is, 1 Sommer, "Die Kriminalpsychologie " (Allg. Zeitschr. f. Psych. LI, 782; "Kriminalpsychologie," Leipzig, 1904, p. 311). ^ Kirn, "tJber den gegenwartigen Stand der Kriminal- Anthropologic " (AUg. Zeitschr. f. Psych., L. 711). * Baer, "Der Verbrecher," p. 245. * Kirn, " Geistesstornng und Verbrechen. Illenauer Festschrift," p. 98. §20] CLASSIFICATION OF CRIMINALS 201 that we can confront the whole phenomenon with more courage, because we then reahze how it must be combated. But Bleuler ^ is not wrong when he says: "Such influences of environment do not speak against Lombroso, they justify him, but go even a Uttle beyond him by discovering the causes of the 'reo nato. '" This is true in so far as we try to ascertain whence the average inferiority comes. But we do not thereby acknowledge the existence of the "born criminal," whose nature forces him with fatahstic necessity into a career of crime. The social evils, wretchedness and poverty, drunkenness and disease, produce a generation of men who are not equal to the storms of life; they are socially useless, in the same sense that those who are rejected, when recruits are examined for the army, are physically unfit. The State requires a minimum height and chest measurement. Some of those who are re- jected as unfit would endure the exertions incidental to service perfectly well, just as some of the tall fellows with adequate chest measurements, collapse. The rejection of the short and narrow is merely an expression of the experience that the health of those below a certain limit is especially apt to suffer. So, too, for us the establishment of a low intelligence, of physical and mental inferiority, is merely a sign of the lack of the power to resist social circumstances, a signal that warns us to be cautious and not to ask too much of these socially unfit. If we could tear up all these people out of the foul soil in which they are rooted, if we could strengthen them physi- cally and steel them by education, if, above all, we could pro- tect them from the dangers of life, we should be able to save most of them from social ruin. But that would be Utopia. Life takes its course and grinds him who cannot keep up. As the struggle for existence is ^ BleulcT, "Der geborene Verbrecher," Munich, 1896, J. F. Lehmaan, p. 32. 202 THE INDIVIDUAL CAUSES OF CRIME [§20 going on at present, as national customs force everyone into the yoke of "doing likewise," we are obliged thus to judge the dangers to which we are all exposed. They are greater than the power of resistance of all these inferior persons; where the strong swimmer breasts and surmounts the surf, the weak one perishes. And those that perish are many. The Prussian statistics of penal institutions contain a highly noteworthy table on this subject.^ All those penitentiary prisoners who had served at least three sentences (penitentiary, prison, or house of correction), of which one or more amounted to six months and over, were counted on the first of October, 1894, and to these were added also those who were committed between then and March 31, 1897. A conference of oflficials reported what in their judgment was to be expected of each of these 15,539 men and 2510 women in the future. The result is truly horrifying. Social uselessness was in the highest degree probable in 92.4% of the women, 94.8% of the men, in the first period; in 98% of the women, and 96.4% of the men, in the second period. The predominant cause is incorrigibility. But wherein can this incorrigibility consist, if we do not include those with physical and mental defects — in this case probably identical ^-ith invahdism and insanity — unless it be in the individual natural disposi- tion? This is the instrument on which the storm of life strikes discords that clash harshly in our ears. All theoretical considerations are powerless before the weight of these figures, representing as they do the experience of those who are in daily contact with criminals. We must reckon with an army of criminals who, under existing con- ditions, cannot be fitted into a regulated life. If we look 1 "Statistik der zum Ressort des Koniglich Preussischen Ministeriums des Innem gehorenden Strafanstalten und Gefangnisse," Berlin, 1900. §20] CLASSIFICATION OF CRIMINALS 203 closer at these men, we shall find that outward causes play a very dififerent part in their lives; one gives way at the slightest touch, another only after resisting temptation for a long time, but, as far as human power can judge, they one and all even- tually succumb. TABLE XXXV That the Convict after his Release will Recidivate is Pbobable Because of Doubtful Impbob- able Incobbig- IBILITT Physical OB Mental Defects Otheb Reasons Men . . . Women . 14,726 2,319 14,441 2,217 163 38 122 64 440 123 373 68 Total . 17,045 16,658 201 186 563 441 Men . . . Women 8,369 1,132 8,357 1,128 1900-1902 10 4 1 2 225 30 92 26 Total . 9,501 9,485 14 2 255 118 Now, are all these socially " incorrigibles " morally insane persons, incorrigible because they lack the ability to perceive and follow the laws of morality? "Moral insanity" is a much disputed conception, and the controversy as to whether a disease can appear exclusively in ethical defects is not yet at an end.^ Hence, I can only give my own personal point of view here: I do not believe in the existence of this disease. All the cases diagnosed as such with which I have come in * After Neuhaus, "Die riickfalligen Verbrecher Preussens von 1900-1902." (Zeitschrift des Koniglichen Preussischen statistischen Bureaus. 24 Jahrg. m Abt.) * Gaupp, "tlber den heutigen Stand der Lehre vom 'geborenen Ver- brecher'" (MSchrKrimPsych. I, 25), and "Uber moralisches Irresein und jugendliches Verbrechertum," Halle, 1904. 204 THE INDIVIDUAL CAUSES OF CRIME [§20 contact were either accompanied by pronounced intellectual defects, or were merely symptoms of serious neuroses and psychoses which had failed to be recognized. With this view, which, by the way, is almost universally shared, there is no longer cause for the frequently expressed apprehension that the alienists will see in every criminal an insane person who belongs in their hands rather than in those of the criminal judge. I mentioned in the last chapter that serious mental diseases exist oftener than judges think, but "de lege data," we are modest in applying § 51. We do not go nearly so far as Krohne ^ desires, whom experience of crim- inal justice induces to say: "The more the conception of the pathological disturbance of the mind which entirely pre- cludes the exercise of free will is comprehended by legislators and judges, the more possible will it be to remove from society the large number of mentally defective persons who are not able to withstand the temptation to transgress the law, and thus become a true pest to society and to the judge, either for always, or until they are no longer dangerous." We are for- bidden to go as far as this at present by the narrowly limited text of the laws and by the opposition of the judges, who are often extremely difficult to convince of the existence of serious psychoses. I also fear that there would be no end to those exempted, if we should proceed according to this proposal. The establishment of the outward circumstances under which a crime is committed made it possible clearly to per- ceive a number of causes of crimes, of which I would mention again the influence of the seasons, the economic situation, and popular or national customs. From this it follows that crime is, in the first place, a social phenomenon; every age has the crimes that it produces. But not everyone becomes a ^ Krohne, loc. cit. p. 274. §20] CLASSIFICATION OF CRIMINALS 205 criminal ; an individual or, as Sommer ^ calls it, an endogenic disposition, is necessary for that. This is the true kernel of Lombroso's doctrine, even if the stigmata that he gives are wrongly, or not sufficiently, proven. Every crime is the product of natural disposition and training, of the individual factor on the one side, and of the social conditions on the other. It would be very fine if we could use this point of view as a sign-post in classifying criminals. They would then be divided according to whether the individual or the social factor predominated. But any such attempt unfortunately meets with the great obstacle that both causes are united in almost every crime, and yet, for practical reasons, an effort at classification cannot be avoided. Any division into groups has something forced about it; the wealth of nature fights against being classified in an artificial plan. This must be grasped at the outset, so that the establishment of dififerent forms will not be misunderstood; they are not and must not be more than a guide to aid in finding the way amid the multifariousness of the phenomena. Classification from the psychological standpoint would be the best if it were at all possible. At present, however, the problem is absolutely unsolved, and such attempts lead only to the most adventurous constructions, without any value. As a curiosity, that of Krauss ^ may be mentioned, who divides criminals into (a) men of strength (" Kraf tmenschen ") : 1, the monster ("Ungetiim"), 2, the choleric individual ("Choleriker"), 3, the passionate individual ("der Leiden- schaftliche ") ; (b) the malicious ("Bosartigen"): 1, the demoniacal ("der Damonische ") , 2, the intrigant, 3, the rogue ("Schurke"); and (c) the weaklings ("Schwachlinge"): 1, the scamp ("Schuft"), 2, the sneak ("Schleicher"), » Loc. cit. 313. * Krauss, "Die Psychologic des Verbrechens," Tubingen, 1884, p. 227. 206 THE INDIVIDUAL CAUSES OF CRIME [§20 3, the vagabond ("Lump"), 4, the Cahban. This, of course, is nothing but pure novehstic psychology. Ferri ^ distinguishes between five groups: criminal insane, born criminals, criminals by acquired habit, occasional criminals, and criminals of passion. As Ferri only intended to deal with the sociological significance of criminals, he does not hesitate to include the insane. The consequence is, that he, and, to an even greater extent, Lombroso, obliterate the line between psychic disease and criminality. The individu- als cited by Lombroso as examples of mattoids (semi-insane persons) were all actually insane. The born criminal is dis- tinguished from the criminal by acquired habit, in that, from his earliest youth, criminal instincts are inherent in him, whereas they are merely early implanted and developed in the other as a result of physical and social evils and neglect. As the starting point of his classification Olrik ^ takes the criminal will, through which the purpose of the penalty (the protection of society by deterrence, discipline, and rendering the criminal innocuous) is determined. He dis- tinguishes three main groups, according to whether the will is weak, of average (normal) strength, of particular intensity and obstinacy. In view of the diflBculty of estimating the will according to these gradations, I consider the principle un- practical and too subjective. At its meeting in Heidelberg, in 1897, the "Internationale Kriminalistische Vereinigung" distinguished three groups: ^ 1. Momentary (occasional) criminals; 2. Those criminals whose crime and preceding life show that, in consequence of defective inteUigence or training, or ^ Loc. cit. p. 85. ' Olrik, "t)ber die Einteilung der Verbrecher mit besonderer Riicksicht auf die Unterscheidung zwischen Gelegenheits- iind Gewohnheitsverbrechern " (ZStW. XIV, 76). 3 Mitteil. der I. K. V., VI, 582. §20] CLASSIFICATION OF CRIMINALS 207 in consequence of later influences, their ability to subject themselves to the existing standards is weakened, and with whom the apprehension seems well-founded that neither a fine nor a brief loss of liberty will be of suflScient effect : 3. Criminals whose rehabilitation in social life as regulated by law can no longer be expected. As its sole leading idea, this classification has taken the menace to legal security, as appears in the direct connection of the classification with the penalties to be applied, and it is the menace to legal security that arises from the natural dis- position of the criminal, not that which is due to the frequently accidental gravity of the crime, that is considered. I should like to adhere to this grouping, but consider it desirable to divide it still further. My classification is composed of the following seven groups: 1. Chance criminals, 2. Criminals of passion, 3. Criminals of opportunity, 4. Deliberate criminals, 5. Recidivists, 6. Habitual criminals, and 7. Professional criminals. Chance criminals are those who come into contact with the Penal Code as a result of carelessness. A cellar door left open, a burning match carelessly thrown away, an error in a prescription written in a moment of mental fatigue, careless driving, a runaway horse, any of these things may put the most respectable, humane man in the dock. Often the damage done is enormous, as, for instance, in railway accidents, while the responsible switchman may be still less to blame on account of extreme over-fatigue. There is absolutely no suspicion of any intention to injure public legal security. This is also true to a great extent of the criminal of passion, 208 THE INDIVIDUAL CAUSES OF CRIME [§20 who is carried away in a moment of excitement and loses his power of deliberation. His crime, as Olrik says, is produced solely by his emotion, of which it is the natural expression, and the passion itself is psychologically explicable and ex- cusable. The case of the husband who surprises his wife in adultery and kills her is often quoted as a typical example. The idea of emotional passion has found far-reaching recogni- tion in the German Penal Code in the conception of defense. The significance of passionate excitement seems to me to be especially important in mob crimes, the commission of which has been discussed on page 121. I should like to limit the expression "criminal of passion" to those who act in a momentary wave of passionate emotion, in acute excitement, and not include, as does von Liszt,^ those individuals who are constantly dominated by passions; he mentions, for instance, several notorious women poisoners. These persons are continually under the influence of their emotional excitability; it is their innate character that de- termines their action, not an external impulse, which, in the storm of feelings, destroys all cool reflection. Closely related to the crimes of passion, but distinguished from them by greater weakness of the excited emotions, are the crimes of opportunity. It is proverbial that the op- portunity makes the thief. For the poor devil who keeps a piece of money that he has found, for the starving wretch who appropriates a loaf of bread in passing a baker's shop, temptation is overwhelming. In the one case it is more ex- ternal chance, in the other, physical condition, that favors the commission of the crime. These are the least serious cases, in which everyone will view the deed in a mild light. There are graver instances, however, in which, though the chance opportunity is indeed the outward occasion, the deed itself 1 von Liszt, " Straf rechtliche Aufsatze und Vortrage," II, 187. §20] CLASSIFICATION OF CRIMINALS 209 indicates particular weakness of character. In this class belong many criminals against sexual morality and the thief who robs the till that he happens to find open in a shop. To such crimes, too, must be added probably most of the excesses due to alcohol, in which the emotional passion must be considered of secondary value. All those ofiFenses against the legal order which have just been mentioned have this in common, that they owe their origin especially to chance, to an unfortunate constellation; these are only different forms of what the "Internationale Kriminalistische Vereinigung" calls "momentary (or occa- sional) crimes." The subdivision, however, makes it appear distinctly that in the class of momentary criminals there are also highly respectable persons, who are divided by a very deep chasm from the thieves who rob the cash-drawer. Quite different must be our judgment of the crime that is carried out with deliberation, the preliminary condition of which is the calm, premeditated plan; with no trace of haste the scheme is formed and executed. There is a vast difference between the psychological processes that lead to embezzle- ment or the theft of food, on the one side, and to burglary that is most intelligently carried out with all the advantages of modern technique, on the other. In individual cases, it is true, the boundaries are blurred. When the opportunity is particularly tempting, when a theft happens to be particularly easy of execution, the act, in spite of its premeditation, loses something of its gravity and often assumes almost the character of an opportunity that was not allowed to slip. A crime that is committed in a moment of excited passion also sometimes approaches a premeditated one, when, for external reasons perhaps, the immediate reac- tion to the insult or injury that has been done to the man's honor was not possible. The excitement, somewhat reduced 210 THE INDIVroUAL CAUSES OF CRIME [§20 in strength perhaps, continues, and thus may later lead to a premeditated crime. Nevertheless, the psychological esti- mation of the act that is committed in the moment of passion, and the one that is delayed, is naturally diflferent, although the two are inwardly related. Much more dangerous to legal security are those crimes that are carried out with the systematic use of all the advan- tages that offer; the danger grows if the perpetrator adapts the outward circumstances to his wishes, and if he combines with others for the purpose of committing the crime. The Penal Code regards as a relapse the repetition of the same crime after the earlier sentence has been served. Psy- chologically, however, the term must be more broadly com- prehended. We must recognize as a relapse the repetition of the crime, even if no penalty lies between the commission of the two acts. But it is not enough that an individual shows the same weak power of resistance to the same temptation; we must also regard it as a relapse if the offenses that he com- mits, such as theft, concealing stolen goods, embezzlement, and fraud, or such as assault and battery and insult, spring from similar psychological motives. According to the exist- ing criminal law, however, unless he commits the same crime, a man is not considered a recidivist, except in the case of theft, and then he must have been twice convicted for receiving stolen goods, robbery, or robbery and extortion. It must not be left unsaid that women show a stronger tendency to relapse than men. Sacker ^ seeks the reasons for this, partly in the nature of woman, which is quicker to ac- quire a habit and clings to it longer, and partly in the diffi- culty with which women must make their way in the world. The first reason seems to me less important than the second. ' Sacker, "Der Riickfall" (Abhandlungen des kriminalistischen Seminars, III, Berlin, Guttentag). §20] CLASSIFICATION OF CRIMINALS 211 "L'homme peut braver I'opinion publique, la femme s'y doit soumettre," quotes Sacker, and rightly. A woman who has once been convicted has much more difficulty in find- ing a new situation than has a man, and therefore sinks more easily. While our penal code takes no account of former con- victions unless they were of the same crime, our criminal statistics include as recidivists all persons who have already been convicted — for good reasons. Only in this way can we get an idea of the danger that threatens society from the habitual criminal. It would be a mistake to see in him always the activity of positive criminal tendencies. A large number of the more harmless habitual criminals, the tramps, who are the daily bread of the police organs and district courts, are characteristic examples of an habitual criminality, due mainly to negative qualities. Incapable of serious work, dulled to all fear of punishment, indifferent to everything, they wander from place to place, suffering hunger and thirst, frost and intense heat, sleeping sometimes under shelter, sometimes in the gutter, and yet only a very few among them are able to brace themselves and return to a life of industry. Among the remaining habitual criminals, too, negative qualities predominate, especially in those who grow up in a criminal environment with no fear of the disgrace of punish- ment, become utterly depraved, and live on lazily and plan- lessly from day to day. Their criminal activity changes with their opportunities and needs. Their attempts to work their way up fail because of their inability to withstand the temp- tations that are all too frequent in the mire in which they live. Much smaller is the number of criminals with positive criminal desires. Usually they only gradually develop into what they are, but once they have become specialists of a 212 THE INDIVIDUAL CAUSES OF CRIME [§ 20 certain kind, they are irredeemably lost to society. Their intelligence is greater than that of the common scamp who takes any opportunity that offers; generally they work on a large scale. To this class belong the international pick- pockets, who only "work" on great occasions, at horse-races, etc., the burglars who operate with all kinds of chemical and technical appliances, and the "gentlemen swindlers" ("Hoch- stapler"). To them, all crime is a profession. It is remark- able that our legislation knows of no "occupational crime" except concealing stolen goods, gambling, poaching, usury, and prostitution, that "the legislator is entirely unacquainted with precisely the chief present-day types of crime as an occupation.^" It is just these criminals who are incorrigible in the true sense of the word. They, together with a small proportion of the habitual criminals, correspond to the group classified by the "Internationale Kriminahstische Vereini- gung" as "criminals whose rehabilitation in regulated social life can no longer be expected." Our statistics show, it is true, that the number of the " incorrigibles " is very much larger; in the social sense, prob- ably at least half of all the penitentiary prisoners are irre- deemably lost. The majority of this group is made up of habitual criminals, only a small proportion being criminals by occupation. This distinction has more than a theoretical interest. In both cases the menace to the legal security arises from the individual disposition. One group, however, succumbs rather to inability to get on honestly in the world, an inability that is often connected with physical and mental inferiority, almost always with insufficient and defective train- ing and education. The professional criminal, on the other hand, just because of his consistent and purposeful activity, his energy and his pleasure in his occupation, will, from the 1 txm lAszt, " Strafrechtliche Aiifsatze und Vortrage," U, 323. §20] CLASSIFICATION OF CRIMINALS 213 beginning, oppose any attempt to improve him with a much greater inner resistance, which leaves Uttle ground for hope. This classification does not pretend to be easily mastered. It will not always be possible, even after long study of the individual, to classify every criminal correctly. Often, too, one form develops out of another. Still, if all the causes of a crime are carefully considered and the character of the perpetrator sufficiently studied, it ought always to be possible to ascertain to which group he approaches most nearly. The value of such a tedious separation of the harmless from the socially dangerous does not lie in the desire to systematize, but in its bearing on the future, which appears in quite another light if we are confronted by a chance criminal in- stead of a professional criminal. And on this depends what is most important of all, the method to be used in the war against crime. PART ni THE STRUGGLE AGAINST CRIME § 21. The Criminal Physiognomy of the Present The menace to public safety from crime has assumed pro- portions that must be somewhat threatening, even to the most unshakable optimism. Wach ^ does, indeed, assert that "No one will deny that we are living in an orderly, healthy, and satisfactory legal state," and further, "Even the dis- quieting impression that our criminal statistics at first make decreases on closer observation." He explains this by point- ing out that, on examination, we find the number of first convictions to be on the decrease, and the whole increase to be placed to the account of recidivists. According to this, in order to obtain a correct impression of present-day legal conditions, we must consider three questions : first, has the number of delinquents not previously convicted really decreased; secondly, what is the theoretical and practical significance of the increase in the "recidivists"; and, thirdly, can the legal condition in which we are living really be called healthy? It is true that the number of those not previously convicted has decreased. Of the last twenty years the year 1900 has the lowest number of those convicted for the first time. But this decrease, unfortunately, is very slight, and is not an absolute one, but is only in proportion to the total population. The gaps left in the criminal army by disease and death, emigration and imprisonment, are almost entirely refilled by ^ Wach, "Zukunft des Strafrechts," p. 6. 216 THE STRUGGLE AGAINST CRIME [§ 21 newcomers. Thus there can be no question of any decrease worth speaking about in criminal tendencies in general. This is most clearly proved by a summary of the last twenty years, in four sections. To be sure, even then the last five years are the most favor- able. But the whole decrease in criminality amounts to only one person for every million persons of punishable age. And if we consider the different crimes separately, even the most incorrigible optimist can no longer rejoice at the supposed decrease in the number of first convictions. If we do not include larceny, which is too largely influenced by economic fluctuations, improvement is found only in the offenses of resistance to State authority and violation of oath. The number of first convictions for assault and battery, fraud, and offenses against chastity and decency, on the contrary, is increasing considerably. It affords us only a crumb of comfort to know that the share of the recidivists in these offenses has increased much more rapidly than that of those convicted for the first time, and that a larger percentage of most crimes are committed by them than by the beginners. The latter is especially noticeable in the case of juveniles, — for obvious reasons. Six years is such a short period that the individual is no longer a minor when later sentences are imposed. But is not the fact that nearly one-fifth of all the juveniles sentenced have already been convicted once, and some even six times and more without a parallel in sadness.'' If, at the same time, the number of all formerly unconvicted delinquents had decreased, we might be more inclined to console ourselves with the idea that these early corrupt persons represent the share contributed by mental and physical inferiority. But, instead of that, we see a fresh and evergrowing stream of juveniles appearing before the criminal judge. What makes this of graver significance than it would §21] CRIMINAL PHYSIOGNOMY OF THE PRESENT 217 •* ^"^ a* OS O ■* 00 o (V t^ A Oi oo t- 00 OS 00 CO to s ., z 00 f- OS ■* to 2 o t— t f-l M Se: SJ _ to CO OS OS o OS to ^ °^ S2 ■* OS •* X5 t- ■* ■* M 00 t- 00 oo •o « °u H fc: «'^ o a* OS t» l> n »o Ok u a s ss OS a o ■* Ctl oo & a a B S CO fr- M o« ■>JI eq l-t l-H o 0» ffl o o t~ a* 00 o ■^ bi 00 o 00 oo HOO o> to to CO o GO to at 00 t- 00 to l- s< S z S « to '~'~ 5 t- _ ,— o» (N OS t- to CO o o CO ^1 oo OOS OS rt t~ »> t> o »o M « HOO ■* t- >H ^ ^ n o a o> o •>»• »» OS ■0" «o to o» o 5 p^ n 00 Ooo •o > < OS OS « 00 t- oo i> l- SB 00 HOO o « t- -« ^ o» <» to 05 ■* oo Ud to 3 < oo OS o O l~ m a* 00 03 t-OO l> o* o» a* « >>» » o o» « oe oo Ooo t- OS •■ CO a CO to 00 t- oo •* r-l a* " "^ " « t> r-l to o •-> ■* OS OS to o ^ z OS Oo >o o» o i> 00 •o o* o 00 t< OS OS CO o « Q OS cs o er> «3 •v 00 o *o Oi 00 f-1 00 OS GO o « a( o» S t~ -H ■* CO o o CO t- o o CO M 00 OOS OS m m Ol to CO a 00 tnOO to OS o w (N 0* M l-H i-H 1~* fH ^ H CO O p:. o» to -r 1-1 U5 i> ^ ■* 00 ■^ * O GO Ooo •. o * 2 a « So ^ 218 THE STRUGGLE AGAINST CRIME [§21 be with adults, is the fact that, annually, of every thousand young persons, six are dealt with by the courts, and that our educational methods cannot succeed in checking the new sup- ply that annually feeds the army of criminals. TABLE XXXVII 1 Convictions per 100,000 Minors Yeabs Not fobmerly Convicted fobmerlt Convicted Fobmehlt Convicted _ ONCE formeblt Convicted TWICE FoBMEBLT Convicted 3 TO 5 Times Fobmehlt Convicted 6 OB MORE TXMBS 1889 . . 521 93 58 20 14 1.1 1890 556 107 67 24 15 1.1 1891 559 113 70 26 16 1.4 1892 604 125 76 29 19 1.7 1893 567 119 72 26 19 2.0 1894 583 133 79 29 22 2.7 1895 571 131 78 29 22 2.4 1896 570 132 77 28 24 2.9 1897 571 131 80 27 21 2.9 1898 605 139 83 30 23 2.9 1899 595 138 85 29 21 2.7 1900 607 138 82 30 23 3.2 1901 604 135 81 29 22 2.9 The most important crimes committed by juveniles were given in Table XXX; the figures show a steady increase since the year 1882, except in simple theft. The offenses enumer- ated have not been subjected to any change in the legislative enactments during the years reported. Hence, the conclusion is unavoidable that brutality, recklessness, and licentiousness are spreading more and more in the growing generation. The reasons for this have already been discussed; I merely wish here once more to establish the fact, how extraordi- narily dangerous juvenile criminality and its continued in- crease are. The number of juveniles convicted during the last year 1 "Statistik f. d. Deutsche Reich," N. F. CXLVI, I, p. 37. §21] CRIMINAL PHYSIOGNOMY OF THE PRESENT 219 (1903) of the imperial statistics amounted to 50,219. Nearly four-fifths of these were entering the criminal world for the first time, soon to compete with its veterans. But that the first step does not usually mean merely a single lapse, but generally the final break with a mode of life in accordance with the law, is shown by the number of recidivists; each convic- tion heightens the danger of relapse. Again and again we are confronted by the fact that redemption from crime becomes the more difficult, the oftener the person has been convicted. A number of those already convicted as juveniles attain their majority every year; they are then lost to view in the general herd of recidivists. This state of affairs is depressing enough. Here, too, we see that, from year to year, those who have already served sentences are more strongly represented among the convictions. The number of those convicted three times and more has doubled and trebled. The last two rows of the table show the course of those crimes in which relapse is considered an aggravation of the offense, because the repetition of the same crime implies its professional practice. Habitual fraud has grown considerably more frequent in the twenty years given, while the number of repeated thefts has decreased. But this does not prove that the professional thief has really grown rarer. Among the recidivating thieves, just as among those con- victed for the first time, there are certainly not a few who suc- cumb the more readily to temptation, the more unfavorable external conditions are. This is supported by the fact that we find the highest number of recidivating thieves, as dis- cussed on p. 105, in the economically poor years 1882 and 1892, and the lowest number in 1888 and 1900. I think we may assume that the professional thief is influenced by prosperous or hard times only as regards the success of his actions, not 220 THE STRUGGLE AGAINST CRIME [§21 as regards the intensity with which he practises, while the decrease in the repeated thefts is at the cost of the somewhat more harmless occasional thief. TABLE XXXVmi Convictions per 100,000 Persons of Punishable Age in Germany All Cbiues akd Offenses o a f < s s. m « !- S D a Yeabs o K a h z o So » a 05 ft < > o r- > ■k o U S z a o 1— u i |i 1 n « Z «i o z 1882 736 259 114 56 64 23 2.8 47 1883 717 267 119 59 68 20 2.9 47 1884 741 284 126 63 72 22 3.3 45 1885 716 290 126 63 74 26 3.5 43 1886 717 303 129 65 79 31 3.8 42 1887 708 312 130 66 81 34 4.4 40 1888 677 307 127 65 80 35 4.4 37 1889 690 340 141 71 87 41 4.8 40 1890 687 362 150 76 93 43 4.9 39 1891 691 382 157 79 98 47 5.6 40 1892 732 417 169 87 107 54 6.0 45 1893 731 427 171 88 111 57 6.4 41 1894 736 459 181 93 120 65 6.8 42 1895 727 473 183 96 124 70 7.2 40 1896 714 483 183 96 129 75 7.5 40 1897 710 494 187 99 129 78 7.8 39 1898 713 506 189 101 133 83 8.4 40 1899 695 506 187 100 133 85 8.1 38 1900 ..... 670 494 180 97 131 86 8.5 37 1901 695 528 191 102 141 95 9.2 41 Since a few years the statistical department has tried to carry out a new calculation, that is, to keep an account of the fate of every convicted person. Released offenders reappear before the criminal court in an astonishingly short space of time; the sooner, the more fre- 1 After "Statistik des Deutschen Reiches," N. F. CXL\T, I, p. 19. § 21] CRIMINAL PHYSIOGNOMY OF THE PRESENT 221 quently they have already been convicted. The number of former convictions is naturally a direct proof of criminal tendencies, yet it is surprising to learn that the relapse into crime often occurs within the same year; this happens in 4% of the cases of those already convicted once, in 6% of the cases of those who have five or more convictions against them. It must not be overlooked that the sixth and all additional TABLE XXXIX 1 Former Convictions per 1000 Persons Convicted between 1894 AND 1896 No Former Conviction 1 FOBMEB Conviction 2 TO 4 Former Convictions 5 OB more Former Convictions In the first year .... " " second year . . . " " third " ... " " fourth " ... " " fifth " ... 47.4 37.6 28.5 23.5 19.4 130.1 98.4 69.4 53.6 41.3 189.4 144.8 95.4 69.3 50.4 249.4 203.3 130.9 84.5 59.1 Not re-convicted during the 5 years following the last conviction .... 156.4 843.6 392.8 607.2 549.3 450.7 727.2 272.8 sentences usually commit the individual to prison or peni- tentiary for many years, so that he is deprived of the oppor- tunity for other offenses for a long time. Of the 98,411 persons, who at the time of their conviction, in the years 1894 to 1896, had already served five or more sentences, 72.7% recidivated in the course of the five years following their last conviction. I can scarcely believe that this number will rise much higher in the next years. Emigra- tion, disease, death, and long imprisonment probably so de- crease the number of the persons recognized as habitual » "Statistik des Deutschen Reiches," CXLVI, I, p. 97. 222 THE STRUGGLE AGAINST CRIME [§21 criminals in the years reported, that it would nearly approach 100% if we could take into account the reduction made by the factors mentioned above. This, too, would agree with the experience of prison officials discussed on page 202, A consideration of the kind of relapse shows us, further, that most habitual criminals are not particular in their choice of crimes and do not limit themselves to one kind or one group of crimes of psychologically equal value. Of the relapses that occurred during the years 1899 to 1901, 37.8-38.1% were similar in nature, 20.6-20.7% were not similar but re- lated, and 41.3-41.6% were neither similar nor related. The very slight variation in the different years, which does not amount to more than 0.3%, shows that we have to do with a regularly recurring phenomenon. It is of great importance for a correct judgment of criminality in Germany to remember that those offenders who have several former convictions against them are least concerned in the relapse into the same or similar crimes, a proof that with these most dangerous criminals there is no one-sided specialization, no professional crime. We find this specialization most frequently in offenses against property; 77% of the thieves, 83% of the swindlers, committed similar crimes again in 1901, while the percentage in assault and battery was only 66, against sexual morahty 61, in resistance to state authorities only 29. Whoever has once got deep into the mire of criminal life is scarcely able to get on to firm ground again. It is quite certain, however, that our penalties are ineffectual, in so far as they are intended to deter from relapse. The oftener efficacy of punishment has been tried on an individual, the less can we hope for success from this means. This is the practical conclusion that must be drawn from the statistics of relapse. I must confess that I have experienced no "decrease of the disquieting impression that our criminal statistics make at § 21] CRIMINAL PHYSIOGNOMY OF THE PRESENT 223 first,'' nor can I see any ground for such a decrease. The statistics show a tremendous afflux of socially dangerous persons, which, in the case of adults, it is true, seems to have come to a standstill, but which, in the case of juveniles, the hope of our future, is progressing unceasingly ; they prove that, probably with the first, certainly with the third or fourth, conviction, the hope is destroyed of ever reclaiming the criminal from his unfortunate career; finally, they teach that the fall into the abyss usually takes place in a very short time, and that our penal system is unable to check the grow- ing depravity. The vast army of lawbreakers lives, more or less, at the expense of the peaceful citizen, who year in and year out is called upon to build new prisons, workhouses, and peniten- tiaries, and who must meet the cost of the maintenance of the convicts. It is scarcely possible to estimate the damage that the indi- vidual suffers through theft and fraud, arson, assault and battery, and sexual crimes ; at any rate it is difficult to express it in figures. The attempt must, however, be made to gain, at least, a superficial survey of the situation. In the year 1909, 797,112 acts were dealt with by the courts as crimes or offenses. These acts, whether or not the person suspected of them were acquitted or convicted, are a better criterion of the injury done to legal security than the number of persons convicted, for every act involves an injury, whether or not the accused person was guilty. These 798,000 are in reality far below the actual number of criminal acts committed. Only those criminal acts come before the court of which the perpetrator is rightly or wrongly thought to be a certain person; the numerous thefts, the rarer but so much more serious murders, where no evidence can be found on which to base criminal proceedings, all these crimes 224 THE STRUGGLE AGAINST CRIME [§21 are lacking. As is well known, the idea of the "continued act," that is, the supposition that several acts owe their origin to one primary resolution, is very much a matter of subjective interpretation. Wherever the courts assume a continued act, the statistics show, instead of frequently numerous individual acts, one number only. Thus the figures given in Table XL represent only the minimum of damage that honor, health, and property sufiEered in 1909 . TABLE XL Convictions in Germany in 1909 (From the "Kriminalstatistik des Deutschen Reiches," CCXXXVII.) Chimes and Offenses Number op Offenses Violence and assault on state officers . . . . Breach of the peace Inducing women to prostitution Indecent assaults, etc., on children under 14 . Insult Simple assault and battery Aggravated assault and battery Petit larceny Petit larceny when frequently repeated . . . Grand larceny Grand larceny when frequently repeated . . Embezzlement Fraud Fraud frequently repeated Forgery , Malicious mischief All crimes and offenses against national laws 21,385 41,085 3,236 8,407 110,830 37,622 93,598 115,844 22,018 16,862 6,709 46,922 51,810 12,535 12,446 30,337 797,112 To characterize the legal situation, I will select only a few examples. The thefts, frauds, and embezzlements include 248,648 single acts; unfortunately we have no idea, even approximately, how great the average damage was in each individual case, but there can be no doubt that national prosperity sustained a tremendous injury through these crimes against property. § 21] CRIMINAL PHYSIOGNOMY OF THE PRESENT 225 It may be objected that the sums embezzled remain in the country, and the amount of the latter's wealth, therefore, remains the same, though a displacement has occurred. But it is by no means indifferent to the prosperity of the people whether an industrious business man is ruined by a faithless employee, or whether the money taken goes the usual way to the saloon or to the prostitute. Without exaggeration it can surely be asserted that stolen and embezzled money generally serves to chain the thief and the swindler to their criminal life with unbreakable fetters, and even, because it is so quickly squandered, artificially to support the world of parasites that live thereby, the receiver of stolen goods, the prostitute, the bookmaker, etc. It is easier to measure the extent of the damage in the case of sexual crimes. In one year, 8856 children under fourteen were the victims of indecent assaults. This is less than the actual number, for the court often treats the crime as one act even though several children are involved. Now, even though often no physical or enduring injury can be proved, and there is at least the hope that the child may forget the occurrence, yet the memory of this sad experience remains with many children for life, poisons their mode of thought, and is felt to be an ineradicable stigma. Finally, for a third kind of crime, I am able to give a fairly accurate calculation of the social damage. In my work mentioned on page 77 I was able to prove that during two years the average loss of work of every person in Worms who was gravely injured in an assault, amounted to 7.3 days. If we take this as a measure — and it is certainly not exag- gerated — of the material damage due to the serious injuries in the year 1903, we obtain tremendous figures. The num- ber of criminal acts that actually came to trial amounted to 94,883; counting a loss of 7.3 days for each act, we get 226 THE STRUGGLE AGAINST CRIME [§21 a loss of 692,645.9 days, or, counting 300 working days to the year, 2308.8 years! This number, then, represents the actual loss of work annually caused by our knights of the blade. In this calculation I have refrained from including the insignificant injuries, as well as tw^o cases of manslaughter and five cases of injuries likely to result in death. If we assume that such grave cases are everywhere equally common, we should have 365 deaths every year, and 900 dangerously wounded persons. How many of these are the support of their families? Would a woman, whose husband is brought home to her stabbed by some ruffian, join in Wach's mockery when he asks, whether it is of any use "to keep an incorrigible ruffian in prison as a life-long pensioner of the State, because, if he were at liberty, he might give someone or other a slash".'* Such utterances are calculated to rouse the quite unjustifiable feeling that everything in our legal state is sound and satis- factory. The parents whose child is ravished, whose son, their sole hope, is crippled for life, tell another tale. They do not feel that we are living in "well-regulated, satisfactory, healthy legal conditions." The picture that I have drawn here, the most important points of which I have briefly emphasized, is one of far-reach- ing public insecurity. The injury done to social life year by year is immeasurable; there is scarcely a gleam of hope for the future when we consider that for years the most important and serious crimes have been steadily increasing, that, above all, our juveniles, the hope of the future, so early and un- reservedly embrace crime! "We see whither we are steering unless energetic action is begun. But this must be done soon, and it must be purposefully done. § 22] PREVENTION 227 § 22. Prevention Our consideration of the menace to legal security at the present day ended in a dissonance, which it is now for us to resolve. Was it, therefore, necessary to paint present and threatening legal conditions so black .^ Does not such a picture produce a feeling of impotence, that fearfully watches the evil approach without any effort to ward it off.^* I think not. Only he who looks clearly into the future will find the right course in the present. When, some twelve years ago, the cholera broke out in Hamburg, our health authorities did not conceal the disease, as was done in many other countries, did not represent the danger to be less than it was; they announced clearly and without reservation what a dangerous plague threatened Germany, and with adamantine strictness enforced all the measures that would prevent its further spread. And they were thoroughly successful, as we know. Thus, it seems to me today, in regard to present legal conditions, that the una- dorned truth is necessary if we are really to hope at all for an improvement in the unendurable situation. But the work of the health authorities did not end with the extermination of the cholera. They sought for the causes of the epidemic, and, by providing Hamburg with a better water supply, permanently protected it from similar sad occur- rences. This "prevention" has always been considered the first and most important duty of the physician, and I know of no more grateful task for the criminologist and sociologist than the prevention of crime. The way to improvement is long and tedious, but the goal no longer looms so misty in the hopeless distance. We know the obstacles that separate us from it. If all forces work together with a single purpose, they must succeed in leveling the way, and every step forward must be the starting-point 228 THE STRUGGLE AGAINST CRIME [§22 of new endeavors. Every measure that helps to make the people physically, mentally, and economically healthier is a weapon in the struggle against the world of crime. Ferri^ has called the methods used to prevent crime "penal substitutes." This is incorrect, for they are not intended to take the place of penalties, but to make the application of the latter unnecessary. These preventive measures corre- spond to the duties of social hygiene. Hence the discussion of prophylaxis rightly begins with the chief tasks of social hygiene, the struggle against alcohol and against poor eco- nomic conditions, because we have recognized in them the causes of the crimes that are, on account of their frequency, most important. If we could do away with the custom of drinking, the numerous crimes that can be traced to alcohol and its conse- quences would be strangled at birth. Not all crimes, and not everywhere. Not all, because we cannot thus destroy the brutality and fighting propensities of some individuals. Not everywhere, as we have seen in Southern Italy, where the knife sits loosely in its sheath, even when alcohol is not there to give the impulse. But with us in Germany a limitation of the present regular custom of drinking would be an infinite blessing to all the many unfortunates to whom a fit of in- toxication means lasting ruin. Supposing that with one blow we could do away with the abuse of alcohol, the number of annual convictions would be reduced by one-fifth, with the omission of the cases of aggra- vated assault and battery, or at least by one-tenth, if only half of such cases can be attributed to alcohol. Some 50,000 persons less would come before the criminal judge every year, apart from the numerous cases of simple assault and battery, insults, etc., that can be traced to the same cause. This is 1 Ferri, "Criminal Sociology," p. 112. § 22] PREVENTION 229 no fantastic vision; it might almost be called experimental experience. In Ireland, Father Mathew ^ succeeded, by the power of his personality and his enthusiastic speeches, in making total abstainers of 1,800,000 persons in the course of a few years. The result was, that, whereas, in 1838, 12,096 serious crimes were committed in Ireland, in 1841 the number had sunk to 773, the sixteenth part! The slight permanence of this unexampled success proves, it is true, that the method employed was not the right one; moreover, with us in Germany, we can never expect to educate the people up to permanent abstinence. Less hopeless, how- ever, is the attempt to teach the broad masses how few of the good qualities generally attributed to alcohol it really pos- sesses, and how great, on the other hand, is the damage it does to health and prosperity. To many, the efforts to do away with the abuse of alcohol, especially to oppose the "occasional drink," seem to be merely a fad, a sort of hobby of uninvited national philanthropists. They are not so to the man who has recognized the relation between the occasional drink and crime, who knows that the pleasure of a convivial evening may have to be paid for by years of suffering, who has seen the extent of the injury that is inflicted on our na- tional prosperity by crimes committed while the criminal is intoxicated. In addition to instruction given to the people, who should, moreover, have the good example of the educated to follow, other methods of combating the custom of drinking should also be used. An extremely high tax on spirits, and higher ones than at present on wine and beer, will not easily be ob- tained in Germany. The "drop of cheer," and the "liquid bread," of the poor man, must not be made too dear; agri- culturists, too, will make up their minds with difficulty to a ' Baer, "Der Alkoholismus," p. 395. \ 230 THE STRUGGLE AGAINST CRIME [§22 restriction of the distillation of spirits. But the party that should dare in our Reichstag to demand higher taxes on all alcoholic drinks might withstand all antagonistic onslaughts, in the consciousness of having thus raised a powerful dam against the destructive stream of crime. "Taxes, and es- pecially all indirect restrictions on the production and sale \J of alcohol, are much more effective measures than monu- mental prison buildings." ^ In this direction much good may be expected from the suppression of home distilleries and the restriction of bar licenses, as well as from the prohibition of the sale of spirits between Saturday noon and Monday, as it exists in Norway, from the suppression of drinking in places of employment, and from the payment of wages in the middle of the week. All these measures, to which many others might be added, are looked upon by the working population as interference in their habits of life. It is impossible to limit drinking without also limiting the workingman's visits to the saloon, the only place where he, especially if unmarried, experiences any de- gree of comfort. To bring about an improvement in the cus- tom of drinking, then, efforts must begin here. A place must be provided where workingmen, without drinking and with- out regarding drinking as an end in itself, can find good and cheap food, light, warm, comfortable rooms, and entertain- ment, where they can also take their wives and children with- out being in constant fear of brawls. Popular reading rooms, popular concerts, the opening of the museums in the evening and on Sunday, gymnasiums and halls for athletic games, will then, in conjunction with the restaurants described above, breed in a large, and, especially, the best part, of the working class a distaste for the smoky, noisy saloon, and will make the habitual visit to the public-house dispensable. ^ Ferri, he. cit. p. 185. § 22] PREVENTION 231 But this alone will not relieve the wretchedness of the lower classes. Comfort and entertainment to be found out- side may, indeed, give a man some pleasure in life, but they do not make his own home unnecessary, or at least should not. Here the methods of the indirect struggle against alcohol converge with the efiPorts to provide hygienic dwellings, where, in the interests of health, and, above all, sexual mo- rality, there shall be no renting of beds and no living together of different families in small, inadequately ventilated and furnished rooms. The construction of small single houses instead of great tenement barracks, the provision of modest, but neat and clean, dwellings, if possible with little gardens, will help to keep the workingman with his family, and will soon make his own home pleasanter to him than the public- house. The broad masses of the people must be educated to appre- ciate anew the value of family life, the desire for knowledge and higher intellectual pleasures must be aroused and grati- fied. The success of all these steps, which are only indirectly aimed against the abuse of alcohol, will then, perhaps, be even more important and permanent than the anti-alcoholistic movement itself. The fact that theft is largely dependent on the economic situation, compels us to turn our attention to this question too; not, however, in order to pursue unattainable, foolish visions, and to guarantee every man a certain and suflBcient income. The difference in the human temperament as re- gards saving, economizing, and squandering is so great that the artificially leveled inequalities would soon reappear. It is impossible to put an end to desire; it is one of the quali- ties of human nature that is not satisfied with what has been attained, that is not bound to the minimum required for existence, but appears in every situation. It is strongest, of 232 THE STRUGGLE AGAINST CRIME [§22 course, where it is directed towards protection from cold and the gratification of the simplest needs of life. Here too, then, we must apply the lever to mitigate the greatest misery. Not by private benevolence alone, although it finds the widest field for its activity just among the very poorest of the poor. In the first place, the State and the municipalities must do their duty. Care of the sick and incurable, regulation of the aid given to the poor, free em- ployment offices, insurance against disease, accident, and unemployment, and, in the country, against diseases of cattle, and against hail and fire, compulsory savings banks, are only a few of the points at which attacks can be made to improve the welfare of the people and protect them from the worst misery. In economic crises, during which even industrious workmen lose their employment, in times in which provisions rise to prohibitive prices or the cold is excessive, the methods mentioned above fail. Then temporary employment, the distribution of bread and coal, the opening of stations where people can warm themselves, lodgings for those without shelter, must all do their part together with the liberality of the prosperous. We cannot exterminate theft, but we shall save the best among the criminals, the individuals who are driven to steal by desperation and despair. The unfortunate position of the children who, of illegiti- mate birth or the product of drunken families and criminal environment, from their earhest years fall victims to mental and moral corruption, has always challenged compassion and energetic action. It would be well if we could prevent the procreation of such usually physically and mentally inferior children. This is the purpose of the widely desired prohibition forbidding epileptics, drunkards, confirmed crim- inals, and the insane to marry. We cannot expect much of § 22] PREVENTION 233 such a measure; we can, indeed, prevent marriage, but not the procreation of children, and precisely in the lowest strata of the people, instead of the legitimate marriage, illegal sexual relations would flourish still more luxuriantly. The time is probably still distant when procreation will be prevented by castration, although this proposal has already been made in all seriousness.^ For the present, then, our care must begin at the point where we see children growing up in crim- inal surroundings. Almost equally menaced are those children who are the result of marriages which, in consequence of extreme poverty, consist only of an outward living together and the procreation of, usually, numerous progeny, — marriages in which the hus- band is at work in the factory from early till late, and the mother spends her times at the wash-tub, or, as well as her husband, in the factory. No one is there to look after and bring up the children; at best, they are left to the care of some neighbor or to themselves, but often enough they be- gin at an early age to work too, delivering bread and news- papers, selling flowers and matches. The street supple- ments the events that take place before the eyes of the children in the overcrowded home. Precocious, and with- out education or training, the poor little mortals are an easy prey to the temptations that surround them on every side. Our civil code has left it to the national legislation to pro- vide for these neglected children. Fortunately, the separate States at once realized the seriousness of the situation, and in quick succession special laws followed one another, allowing State intervention even before a child or a minor has shown by crime that his training has failed. 1 Naecke, "Die Kastration bei gewissen Klassen von Degenerierten als ein wirksamer sozialer Schutz" (Arch. Krim. Anthr. Ill, 58). 234 THE STRUGGLE AGAINST CRIME [§22 The Prussian law of July 2, 1900,^ relating to the "State education of minors" avoids the expression "compulsory edu- cation," used by most of the States, so that there shall be no danger of this kind of education being regarded as a sub- stitute for penal measures, and a stigma attach to the child. This would be very unjust, inasmuch as we cannot admit that the children suffer for the guilt of the parents; besides, in many cases, the neglect is not due to the lack of will on the part of the parents, but to their inability to bring up the child properly because they are prevented from doing so by disease, absence, and dire necessity. It is true the name does not help matters, if the whole proceeding is not rightly carried out. Even though a number of mistakes may be regarded as the unavoidable consequence of the short time that the system has had in which to develop, yet it cannot be denied that serious and experienced observers say quite openly that the State education law does not fulfill the expectations to which it gave rise. Perhaps expectations were too high in some respects, because it was not taken into consideration and, indeed, could not be foreseen, how great the proportion of mentally inferior children is who require this kind of education. Among the children who were being given special edu- cative training whom Tippel ^ examined, he found 66.87% mentally inferior. In the light of this fact it is interest- ing to learn that an oflBcial enquiry put to fourteen insti- tutions harboring 544 children called forth the reply that there were no psychically defective children among them! There can be no doubt that the difference here lies, not in the material, but in the judgment, which is explained by the ^ Ludvng Schmitz, "Wegweiser zum preussischen Fiirsorgeerziehungsge- setz," 2nd ed., Diisseldorf, 1901, L. Schwann. ^ Tippel, " Fiirsorgeerziehung und Psychiatric" (AUg. Zeitsch. f. Psych. LXVI. 583). § 22] PREITNTION 235 difference in the special education of the persons forming the judgment. It is essential, however, that, if special State education is to be properly carried out, the institution physi- cians and the superintendents of the institutions should have a preliminary psychiatrical education and some degree of psychiatrical ability. This is shown by Kluge's ^ experiences; for he was able to overcome difficulties which would have proved insurmountable to the superintendents of the special educational institutions. Unfortunately, however, in addition to these defects, there are many other things to be desired without which the success of the whole scheme is questionable. Admission to an institution must be more speedily procurable, there must be less red tape about it, an individual's ruin must not be allowed to take place because of the expense of preventing it, the foolishness or obstinacy of parents must not be permitted to undo at one blow the good that has been acquired in years of training.^ There is still much to be improved in the pro- ceedings that lead up to the child's admission to the institu- tion, as well as in the special education itself. But, for the most part, the errors are capable of correction, and so we may hope that Kohlrausch's ^ fears are unfounded, when he says : "It is just the idea that we are concerned with a social hy- gienic, a preventive, measure, that is seemingly fading away." The training of neglected children in special educational institutions is, of course, only one of the possibilities of pre- venting complete ruin. If the offspring of criminal families, children who are themselves already affected, are too numer- * Kluge, "tJber die Behandlung und Unterbringung psychisch abnormer FUrsorgezoglinge" (MSchrKrimPsych. II, 232). * Klumker, "Erfahrungen mit der Fiirsorgeerziehung " (MSchrKrim- Psych. I, 640). ' Kohlrausch, "Die Resultate der Kammergerichtlichen Rechtsprcchung liber das FUrsorgeerziehungsgesetz " (MSchrKrimPsych. I, 373). 236 THE STRUGGLE AGAINST CRIME [§22 ous in one institution, the other children, who are still quite healthy, are in too great danger of psychic infection, and for this reason it has been decided that they may quite properly be put in the care of suitable families. If there were only enough of such families! But we must not forget that a family's motives in assuming the care of a neglected child are not always pure, that the hope of gaining another work- ing member in the family often plays a part. / Hence we must turn to the existing educational institutions of churches, societies, and private persons. I personally have the greatest hopes of the activity of those guardians who have to supervise the "natural and regular growing up into social life." ^ When, with the increased application of this special education, the circle of those persons who are active as guardians in accordance with the regulations is growing ever wider, we shall have a staff of helpers who, with their interest in the individual children, will also become interested in the movement itself and in the whole prophy- laxis of crime. They need fear no lack of work. Here is the place to speak of the care of released convicts,^ which is also directed towards preventing a relapse into crime. It is often subjected to a harsh criticism, which Ferri^ expresses in the words: "It must not be forgotten what kind of an im- pression this support of criminals must make on the millions of honest workmen who are less fortunate than the released convicts." This view rests on a misunderstanding of the aim in providing shelter and work. If, on the expiration 1 Krohne, " Erziehungsanstalten fiir die verlassene, gefahrdete und ver- wahrloste Jugend in Preussen," Berlin, 1901, Carl Heymann's Verlag, p. XXXIX. 2 According to Rosenfeld (" Zweihundert Jahre Fursorge der preussischen Staatsregierung fiir die entlassenen Strafgefangenen," Berlin, 1905, p. 8), the oldest "Fursorge" decree is the decree of Frederick I of Prussia, of August 28, 1710. ^ Ferri, "Das Verbrechen als soziale Erscheinung," p. 414. § 22] PREVENTION 237 of his sentence, we turn the released prisoner into the street, we simply deliver him over to the mercies of society. It is very difficult for the released prisoner, alone, often in a strange city, dependent entirely on himself, to find work; the money he has earned is soon gone, he grows hungry, and all his good resolutions quickly disappear. Or perhaps he spends the money at once in drink; then his reappearance before the criminal judge occurs even sooner. "Nothing is more dan- gerous than the few holidays after expiated punishment, which, devoted to hunting for work and shelter, lead to loafing, drinking, and the forming of bad acquaintanceships, and make the released prisoner refractory, rude, and inacces- sible to good influences." ^ This must be prevented. The prisoner must not receive into his own keeping the money he has earned by his industry; for this reason the term "work premium" was changed into "gift for work." The money is not paid to the man, but is sent to the societies that care for released prisoners. It is easy for them to prevent its being foolishly wasted; more- over, they are able, by procuring tools and suitable clothing, paying the arrears of rent for the family, etc., to provide against the new life's being begun with debts. The most important thing, however, is the procuring of work, and it is necessary that this should be done before the prisoner is released, so that the seriousness of work may help to sustain him immediately on his dismissal, and facilitate his re-entry into society. The endeavors of the societies for the care of released prisoners are not always crowned with success. This is partly due to the ways of the released pris- oners themselves, and partly to lack of energy of the organs selected to do the work, which do not all fulfill their social obligations with complete understanding. Many a released ' Krohne, "Lehrbuch der Gefangniskunde," p. 281. V 238 THE STRUGGLE AGAINST CRIME [§22 criminal might be brought back to an industrious, honest Hfe, if the way were made easy for him as often as now obstacles are found in his path. Krohne ^ graphically describes the struggle of a criminal for his civil rehabilitation. "It is really heartbreaking to watch such a death struggle, and if society closes its eyes to it, it will nevertheless soon be unpleasantly reminded of it; for then, like all convulsive movements, this struggle makes itself felt externally. The criminal is not dead, he continues to live in his children, in the young people he has met in prison and in lodgings. That is the crim- inal bacillus that goes on spreading. By watching it, society can see how it injures itself if it does not do everything pos- sible to reclaim the delinquent, or, if that is impossible, at least to give him a quiet place in which to die, instead of affording him the opportunity of infecting others." Such endeavors, apparently, benefit only the criminal who is helped, but, in reality, public security profits still more. The prophylaxis of crimes includes also the development of the police, and energetic prosecution. A vacillating man, who knows that punishment will follow swiftly on the heels of his crime, is less likely to fall than if others' experience has shown him that he has the prospect of escaping punish- ment. Though this may not be a highly ethical point of view, yet we cannot aflFord to disdain anything that will help us in the struggle against crime. Most demoralizing of all, are threatened punishments that exist only on paper, or are but seldom used in comparison with the frequency of the offense, as, for instance, criminal abortion, sodomy, the pro- curing of women for prostitution. They undermine the general feeling for the law slowly but surely, instead of strengthening it. And strengthening is what it urgently needs. When some 1 Krohne (Mitteilungea der I. K. V., VI, 567). § 22] PREVENTION 239 sensational court trial is taking place, some unusually horrible murder is committed, some unheard-of swindle is perpetrated, the indignation of the whole people is so unanimous that we might hug ourselves in the illusion that the people's feeling for the law is highly developed. Unfortunately, however, it fails in the course of everyday life as regards minor trans- gressions of the law. The "market penny" which the cook who does the marketing keeps for herself, the adulteration of milk, the giving of short weight, the whole field of dis- honest competition, betray as undeveloped a feeling for the law, as do wrong declarations of property to be taxed, and smuggling goods through the customs. The last-named example shows that slow improvement is taking place. Not many years ago, in passing the frontier into Austria, Italy, or France, one could be fairly certain that, once over the border, the undeclared cigars would be brought out from their hiding-places with a certain pride, frequently that elaborate accounts would be given of how the vigilance of the officials had been avoided. This is now gen- erally recognized as not respectable, and, though I believe that such smuggling goes on often enough, yet it is no longer done so publicly and with such an attitude of resisting the unjustified demands of the State. Slight as this sign is, I yet believe it to be a symptom of a finer sense for justice and injustice. The more sharply our legal consciousness rejects, as inad- missible, every deviation from the straight path, even where neither criminal judge nor statute threatens, the more surely can we reckon on a general refinement of the feeling for right. To this end, according to individuality, descent, and educa- tion, the home and school, church and press, must work to- gether. If I mention the press next to the school and the church, I should explain why I lay so much stress upon it. 240 THE STRUGGLE AGAINST CRIME [§22 Above all, because it is harmful, and, in two directions. The published accounts of trials giving, as is commonly done, the names of those concerned, spread the name of the convicted person abroad, and thus not only make it more difficult for him to regain his place in the world, but also injure to a much greater extent his relatives, who often have much to suffer from this source. Moreover, the description of crimes does not exactly serve to improve morality. I need only call to mind the Sternberg trial, the details of which formed a highly undesirable subject for conversation. The curious phenomenon, that certain unusual deeds of horror generally follow one another at short intervals in differ- ent places, may probably also be traced to the — admittedly unintentional — effect of the newspaper reports. We are concerned here with a phenomenon of pathological nature. A great many of the most infamous sexual crimes are com- mitted by epileptics in abnormal states. The ideas and notions of the man in his normal state often, however, play a part when he is in an abnormal condition; thus, his remembrance of newspaper descriptions of dismembered corpses, ripped open bodies, arson, and murder, may turn the confused destructive fury of the epileptic into dangerous channels. Weak-minded persons, too, especially juveniles, may easily fall victims to their desire for notoriety, and feel themselves flattered if their heroic deeds are described in the paper, possibly even their picture printed in the so-called "pohce journals." It is clear that the press can do a great deal of harm in this way; also, the knowledge that stabbing, swindling, sexual crimes, take place daily gradually makes the people apathetic, so that a crime must be particularly sensational to arouse their indignation. It should be the duty of the press to point out to society § 23] RESPONSIBILITY 241 its share of guilt in the crime, and so to fe*rouse everyone's conscience that he reahzes what he owes to society at large. When, in times of financial panic and bank failures, public indignation stones the guilty, it should be made clear that the desire of each individual for the abundant profits of cer- tain commercial papers is also to blame for the wild specu- lations of the bank directors. At the time that an unfor- tunate ending of a drinking bout cost an officer his life, it would have been the duty of the press not to condemn so much this particular case as the general custom of drinking, that daily demands victims, though not under such tragic circumstances. The press is such an efficient instrument for developing the feeling for justice because it can gain its effect by contin- ual repetition without being monotonous. The influence of the school, unfortunately, ceases too early, and those persons who most need religious influences are often the very ones that hold themselves aloof from them. Nevertheless, it would be very regrettable if all these factors should not work together harmoniously to the same end. § 23. Responsibility Our legislation is built up on the basis of the doctrine of the free determination of will. "The right of the state" — so says the draught of a penal code for the North German Federation — "not only to adopt measures of security against the criminal, but to punish him, rests on the general human opinion that the mature and mentally sound man has sufficient will power to repress impulses to criminal acts, and to act in accordance with the general consciousness of right." It is not my t^sk to discuss here, at length, the inex- haustible theme of free will, but I cannot pass it by entirely, as long as eminent criminologists continue to hold to that 242 THE STRUGGLE AGAINST CRIME [§23 doctrine as the "basis of criminal law," ^ and, indeed, to adhere to the extreme form, entirely unlimited freedom of the will. The discussion about the freedom of the will is always carried on in a somewhat irritated key, as are all arguments about questions of faith and perception. While Schopenhauer, for instance, treats the adherents of free will as "superficially thinking minds," in another quarter it is more the moral qualification of the determinists that is doubted. The Bava- rian Minister of Public Worship, von Landmann, in his opening speech at the third International Psychological Congress, in Munich, in 1896, felt himseK constrained to say, with unmistakable reference to von Liszt's address on "Responsibility in Criminal Law":^ "I hope that the psy- chological congresses will aid in allaying the great danger to the public life of the cultured nations which might arise from certain psychological theories, and I am confident that these congresses will not shake, but rather re-enforce, the old belief in a man's responsibility for his acts." Disputed scientific questions cannot be decided with pas- sion. As we see that a number of our most eminent thinkers adhere to the doctrine of free will, Schopenhauer's view seems to me to be as unjustified as the opposite attack of those who fear that the relinquishing of free will will mean the collapse of ethics and morals, law and society. State and church. They forget that St. Augustine ^ and Luther denied the doctrine of free will. We shall see that, with the deterministic \dew, it is still 1 Birkmeyer, " Gedanken zur bevorstehenden Reform der deutschen Straf- gesetzgebung" (Archiv fiir Strafrecht, XL VIII, 67). ^ "'Dritter intemationaler Kongress fiir Psychologic," Munich, 1897, J. F. Lehmann, p. 18. ' Petersen, " Willensfreiheit, Mord und Straff reiheit," Munich, 1905, J. F. Lehmann, p. 14. § 23] RESPONSIBILITY 243 possible to maintain the responsibility of a man for his acts, — though from an entirely different standpoint, it is true. The standpoint of the natural sciences, and this is the only one I can represent here, varies considerably from "general human opinion." We must hold fast to the fact that an effect can take place only if it is preceded by a cause. Consequently the phenomena which we call acts of will must be preceded by a causal activity. This activity goes on in our brain, hence is dependent on the latter's condition. A "free will" that acts without cause, or, more comprehen- sibly, without motive, does not exist. To be sure, it cannot be denied that the weighing of the motives for and against, and the final decision, are bound up with a feeling that may easily give the observer the illusion of "free will." And the more easily and clearly is this illusion produced, the less careful the observer is in the analysis of the processes of his consciousness. And yet the recognition of the law of caus- ality compels us to give up this illusion, flattering as it is to self-love and conceit. The supposition that acts can be caused by a will that is entirely beyond and removed from motives, would lead to the most fantastic consequences. "What would become of this world if necessity did not run through all things and hold them together? A monstrosity, a pile of debris, a distorted visage without sense or meaning — the work, namely, of true and pure chance." ^ Every act is the necessary final result of the effect of a series of motives on a certain character. We are far from being able to view this origin and development in its whole course. But, just because we are affected by a number of motives which we do not know, which, perhaps, practiced introspection may lead us merely to suspect, we should * Schopenhauer, "tlber die Freiheit des menschlichen Willens," Leipzig, Philipp Reclam, III, p. 44L 244 THE STRUGGLE AGAINST CRIME [§23 beware of applying to others the thoroughly subjective measure which we gain by, ourselves, measuring our own thought, and of trusting our own decision too confidently. The reaction to an outward or inward irritant is extremely different. It is dependent on individual character. But is it true that the character is not "something given or even forced upon the individual by causalities, but a peculiarity freely acquired by everyone, of his own knowledge, judgment, and choice, the product of free will in the education of self".'' ^ These words bear witness to a tremendous underestimation of the natural disposition given to the individual, and existing at birth. Externally, intelligence is the factor in natural disposition that is most striking, and consequently it is often pushed too far into the foreground. The ability to experience and to assimilate can be measured by a fairly high degree of reliability. We are not so clear about the part played by the emotions ; ^ even if we do not agree with Wundt in making, in every case, the emotion the starting point of the act of will, we must not underestimate its influence on the single act and on the formation of the character. The intensity of emotional feelings is certainly a quality that can be much changed by education and experience, but, just as certainly, it is not always thus changed. The intellect is far more easily affected by experience, and is influenced by environment and schooling, example and instruction. At a definite moment, however, that is, at the time of the crime, the character of a man exists as a complete and finished one, not to be changed until after, or except by, the eventual decision. At this moment, then, a "free" alteration of character is no longer ^ Ortloff, "Die Vermindening der Willensfreiheit im Determinismus" (Zeitschr. f. d. ges. Strafrechtswissenschaft, XII, p. 327). 2 Hoche, "Die Freiheit des Willens vom Standpimkte der Psychopatholo- gie," Wiesbaden, 1902, J. F. Bergmann, p. 14. § 23] RESPONSIBILITY 245 possible, the act takes place as the necessary result of the out- ward and inward motives, working on the existing character. Having established this, we must not pause, but must ask, further, how is a character formed? We may leave the fact aside, that environment, family, instruction, religious, social, and ethnological influences, certainly cannot be freely formed by the individual according to his desire. But we ask in vain, why do the thoughts and feelings of the one individual cling mainly and enduringly to ethically good, altruistic ideas, while the same ideas rebound ineffectively from the mind of another .f* Let us try, without prejudice and with the greatest possible objectivity, to follow the character development of an individual backwards to the point at which a "willing" of the character is possible. By doing this, we find ourselves at our point of departure; we must halt at the natural dis- position, intellectual and emotional, and confess that the development of character also is not a product of free will. Whether we, then, ascribe the final result more to the inade- quate organization or to wrong development, is indifferent to the fact: a man cannot form his character as he desires. If penal acts do not appear as the expression of free will, but as the result of complicated processes, which are depend- ent on the organization and development of the brain, on intelligence, experience, and emotional excitability, on the one hand, and, on the other, on external conditions, — what right have we to make a criminal responsible for his acts? Study of the world of nature shows that every organism responds to stimuli of sufficient strength. Reactions take place especially in response to irritations which threaten the existence of the individual. The motive of every defense against attack is personal well-being and self-preservation. Thus the single cell resists attack, as does every animal. 246 THE STRUGGLE AGAINST CRIME [§23 including man; hence the original form of the development of punishment was simple defense. We can still see that today in races on a low plane of culture. A later development is the reaction that does not take place at the moment, but is delayed and appears as revenge. Both forms, the direct as well as the delayed, the defensive and the revengeful, function confront us on two planes, of which the lower, the individual, progresses to the social. The defense and revenge of the attacked individual easily exceeds the limits of the necessary, and thus gives rise to new counter-reactions; a typical example is blood- ven- geance, which led to the complete extermination of whole families. When a larger organism, that is, the tribe or the State, takes over the oJEce of defense, a more practical estimation of the reaction necessary to a certain attack is arrived at. Those persons who were at the head of such an organism undertook the decision in difficult cases and provided, on behalf of the tribe or State, for the execution of the reaction. A new element was introduced by the priests: "In their hands," writes Ferri,^ "what was originally individual or tribal revenge assumed the character of divine revenge, and, from a purely defensive function, came to be a moral and rehgious one. The consequence was that, as in all ecclesi- astical, religious formations, a strict formalism and a mystical idea of expiation made themselves felt." With the development of the State, the judicial power once more slipped from the priests' grasp into the hands of laymen, but the idea of expiation was retained; the penal power repre- sented simply a retributive measure. This principle, which was not originally inherent in punishment, cannot be carried out, as will be shown, and the criminal codes, too, that are ' Loc. cit. p. 156. § 23] RESPONSIBILITY 247 built up on it are full of inadequacies, compromises with other views, and contradictions. We cannot do without the defensive response to attacks. Both the individual and the totality of persons that we know as the State and society, require protection for their existence. Thus, quite apart from all the alien elements of the original defensive reaction, we still, from an entirely different point of view, come to maintain the responsibility of the attacker. I agree with Ferri: "The natural foundation and the funda- mental principle of the repression of crimes exists solely in the necessity for self-preservation, which applies to every individual and every social organism." From this standpoint, which sees in crime only the injury to society, and in punishment only the necessary social re- action against it, the struggle against criminals must be carried on. We thus depart from the moral, and in its place set up the social, responsibility. This is not so strange to our legislation as it appears. In the case of minors, and juveniles acquitted because of lack of comprehension, our penal law provides a compulsory education, lasting for years, even when the offense is harmless, and although the person who committed it is not regarded as accountable. Still clearer is this social reaction in the case of beggars and prostitutes. Prostitutes who frequently offend against the police regu- lations, who, for instance, pass through certain forbidden streets, show themselves after sunset, etc., are committed to the workhouse for one or two years. It is the same with beggars and tramps who are repeatedly found without work and shelter. The effect of this regulation can only be measured by the fact, that the average penalty imposed for indecent assaults on juveniles is about one to one and a half years. Now, if the vagabond who is afraid of work, and the prosti- tute, are sent to the workhouse for one or two years, it cannot 248 THE STRUGGLE AGAINST CRIME [§ 23 be that this course is dictated by moral indignation about their offense; it must be explained as the State's method of defending itself against these parasites. The necessity for protecting society has also caused the State to intervene, even where sympathy with a psychic disease restrains all feeling of disapproval. The lunatic, whose mad ideas menace pubUc safety, is taken care of in an insane asylum, even if, because he entirely fails to realize his condition, he feels this, often life-long, confinement, to be cruel in the extreme. Though he may excite our deepest pity, yet no one would feel his confinement to be inadmissible. Recently our legislation has gone even a step farther. The insane per- son who sets fire to a house is not, indeed, convicted of arson, but, according to § 829 of the Civil Code, he is obliged to be kept harmless "as equity requires." Although this belongs in quite another field, that of the civil law, it nevertheless proves that the social responsibility of a person who is irrespon- sible in criminal law is not incompatible with our legal views. Many people have come to regard the giving up of free will as identical with the giving up of the feeling of responsi- bility. But this does not correspond to the general feeling. "With or without the belief in free will, unpleasant feelings arise in me, if I belong to the normal majority, as soon as my behavior departs from the course that I feel, with subjec- tive certainty, to be the right one; and this stirring of con- science guides me, whether I believe the conscience to be the indicator of an intelligible character or not. I feel myself to be the perpetrator of my deeds and must be accountable for them; this feeling of responsibility is not changed in the least by my scientific con\dction that the nature of this feeling too is necessarily determined." ^ '^ Hoche, "Die Freiheit des Willens vom Standpunkte der Psychopatholo- gie," Wiesbaden, 1902, J. F. Bergmann. § 23] RESPONSIBILITY 249 This feeling of responsibility dominates the normal man, — in fact, as Hoche and Mohr ^ have proved, it is not always lacking in the insane, whom even the most fanatical indeter- minist would deny free will. From this, we may conclude that there is nothing antagonistic to our feeling when the State presumes to hold us responsible for our acts. One thing, how- ever, must be admitted, if we no longer regard character as the work of our will, and that is, that our feeling for the evil- doer should be rather one of pity than of moral indignation, a view that our own self-approbation often makes it difficult to take. And that is the only point in which we differ from the mor- alists and the representatives of free will. We, too, certainly do not wish to allow the criminal to follow his criminal ten- dencies unmolested, we too desire an energetic reaction against the disturbers of the legal peace. If a feehng of compassion runs through all our measures, it can yet exercise an influence only in so far as the interests of the individual can be combined with those of society, but never further. This compassion, however, must never degenerate into weakness. More important than the right of the individual, is the right of the totality; whoever injures it, must suffer in consequence. And, just as pity does not prevent our removing the insane from society, just as we protect the com- munity from the infection of leprosy, so too our course, as regards the socially dangerous, must be dictated by this point of view: the protection of our health, our honor, our property. But will it be possible to go on building on this basis .^ That experience alone will show. To disarm an important criticism at the outset: we do not demand that a new criminal law shall be draughted at once, 1 Mohr, " Willensf reiheit und Psychopathologie " (MSchrKriml'sych. I, 7SS). 250 THE STRUGGLE AGAINST CRIME [§24 which shall throw overboard everything that at present exists, but we do demand that people shall not cling to the old with persistent prejudice merely because it is old. Experience teaches us that great revolutions are slow in taking place, that the enthusiasm of the advocates of the new finds its natural corrective in the conservatism of the adherents of the old, — and this is well. For then the way to improvement is gained step by step, and every advance rests on a sure foundation. § 24. The Purpose of Punishmeiit The makers of our criminal laws have avoided setting up a definite theory about the foundation and nature of punish- ment. Science, therefore, has tried the more eagerly to find one. But "it must be affirmed that no uniform, generally recognized, and universal theory of punishment, for all ages and peoples, exists." ^ And yet, neither the theorist, the judge, nor certainly the legislator, and, least of all, the official in whose hands lies the carrying out of the sentence, can do with- out one. He must know what he is to do with the delinquent. The present state of the matter is theoretically this: the judge pronounces a sentence of definite duration, and delivers the delinquent up that the sentence may be executed; that is the end of the case, as far as the judge is concerned. He has nothing to do with the way in which the sentence is executed. Many judges have perhaps heard lectures on prisons and prison discipline, but there are numbers who have never visited a prison, and very few who have a clear idea of the execution of the sentence. Krohne, who is most intimately familiar with the way in which penalties are carried out, is moved by his experience to ' Fon HoZizCTidor^, "Die rechtlichen Prinzipien des Strafvollzugs. Hand- buch des Gefangniswesens." Hamburg, 1888, I, p. 384. §24] THE PURPOSE OF PUNISHMENT 251 exclaim: "Even if you have the best law, the best judge, the best sentence, and the prison official is not efficient, you might as well throw the statute into the waste basket and burn the sentence!" ^ Not from the law, then, may we ex- pect an improvement in legal security, but from the execu- tion of the punishment. There hes the centre of gravity of the struggle against crime. As, in von Holtzendorff's opinion, there can hardly be three eminent teachers of the law in Germany who are completely agreed as to the final formula of criminal law, it cannot possibly be the duty of the physician to take a stand as regards all the existing theories, an attitude which merely ends in his setting up a new one. Only the most important points of view must be mentioned. Von Holtzendorff assumes that every offense produces three effects, and that popular feeling demands of punishment three purposes that shall correspond to these three effects: a. The effect of anger and of the feeling of revenge; the penalty acts as satisfaction or as expiation; h. the effect of fear produced in those persons who have not been injured; the purpose of the punishment is deterrence, deterrence of the evil-doer as special prevention, deterrence of all the dubious elements in the people as general prevention; c. the effect of sympathy with the criminal, who is tortured by remorse, or has been rendered innocuous, or has been physically overpowered; the suffering of the penalty is intended to lead to improvement. The idea of expiation, of retribution, corresponds roughly in its meaning to "an eye for an eye^" ^ to the measuring of the punishment by the greatness of the objective guilt. Schmidt ' » Mitteilungen der I. K. V.. VI, 364. * Birkmeyer, loc. cit. Note 60. * Richard Schmidt, "Die Aufgaben der Strafrechtapflege," Leipzig, 1895, p. 286. 252 THE STRUGGLE AGAINST CRIME [§24 quotes Anselm Feuerbach's pathetic words: "It may be of advantage to the State to spare certain criminals! Chance causes may move a man to crime; he only needs to be warned, to be disciplined, and he will be the most upright citizen. If he falls under the penalty of the law, he is lost forever, and thus the State is deprived of a useful, perhaps necessary, member. But it is still more advantageous to the State for justice to show itself to be inflexible, that it should not be bent to secure chance advantages, thus undermining the authority of the laws and making a childish toy of the threat of punishment." This is the point of view of the words: fiat justitia, pereat mundus." The adherents of this view are probably few in number. They, like Schmidt, point to the legal consciousness, and the people's feeling for justice, as a proof of the necessity of adapt- ing the punishment to the social significance of the offense. It will readily occur to us all, however, how often the feeling of the people fails to agree with that of the judge. I merely wish to touch on a few points on which the average judgment of the people differs from that of the law: popular judgment does not understand why the unsuccessful attempt should remain unpunished, why an accessory to a criminal act, the actual perpetrator of which is acquitted on the ground of insanity, should be allowed to go free; in fact, the feeling of revenge even demands that an insane person shall be pun- ished, if his act is one that particularly excites popular passion; we see this in the convictions of insane persons by juries and, occasionally, by judges, when they disregard the unanimous reports of alienists. Such wide disagreements between popular feeling and the laws as were seen in the case of larceny of electricity need not be considered, because the differences there can easily be remedied by suitable supplementation and ex- planation of the sections of the statute. §24] THE PURPOSE OF PUNISHMENT 253 The appeal to the legal consciousness of the people also fails in the case of such excrescences as witch trials and the excesses of the Commune. But if the people, with their naive, often short-sighted and one-sided feelings, are headed in the wrong direction, it is the duty of science to correct and enlighten them. But many of the most important fundamental principles of our criminal law are incompatible with the theory of retri- bution, which demands a punishment equal to the objective guilt: such are, for instance, the heavier penalty for the re- cidivist, extenuating circumstances, the statute of limitations, conditional release during the carrying out of the sentence, the lighter punishment of juveniles, the curtailment of the accumulated penalties when an offender is sentenced at the same time for several offenses, a system which Ferri harshly but not incorrectly describes as "selling at the wholesale price." All these things are the result of the consideration of the subjective guilt of the perpetrator, in addition to the objective injury to legal values. The modern representatives of the theory of retribution also desire to do this; for, "if the punishment is to be entirely proportionate to the guilt, it must take the guilt, not only as it is objectively embodied in the crime, but also in its subjective source in the mind of the criminal, in his motives, and in his attitude before and after the deed, more fully into account." ^ The judge is thus confronted by one of the most difficult tasks conceivable, one that is frequently impossible, the finding of a formula that unites the subjective and the objective guilt. The solution of this difficulty is above all, impossible when the success of an act is either greater or less than was intended. In the case of an attempted murder which fails because the murderer does not use the poison properly or miscalculates ^ Birkmeyer, loc. cit. p. 67. 254 THE STRUGGLE AGAINST CRIME [§24 the range of a revolver, when an attempt at arson fails be- cause the offender did not notice that the hay was wet, when a burglar opens an empty safe, — in all the mere attempts at crime, — the damage done is often slight or entirely lacking, while the subjective guilt often stamps the act as particularly dangerous in the sense of retributive justice. The opposite is the case with liability for the consequences which makes a man answerable for events of which he has been the cause in a slight degree only. If a fight leads to the death of one of the participants, not because he was seriously injured, but because he did not take care of a harmless scratch and died of the blood poisoning that ensued, his death is laid at the door of the man he fought with. The same is true of the student whose opponent neglects a slight sword-cut, of the pedestrian whose falling match causes a fire in which people perish. What determines the amount of guilt? The result, the subjective guilt, the general make-up of the offender? We find ourselves entirely at sea as soon as we — still led by the fiction of a just retribution — attempt to consider the individuality of the offender. Birkmeyer, who considers the reform of the criminal law possible only from the point of view of the idea of retribution, and may, therefore, be con- sidered a typical representative of this school, goes so far as to demand, with von Weinrich, that: "The judge should know more about the personal circumstances of the accused, that he may be able to weigh rightly the degree of his guilt. He must know whether, besides the accused himself, his parents or nearest relatives have ever been convicted of seri- ous crimes, whether they were intemperate, whether mental disease is hereditary in the family, — moreover, what has been the training and education of the accused, the course of his life hitherto, at least its main events, his family circum- stances, his occupation, with what persons he associates and §24] THE PURPOSE OF PUNISHMENT 255 what his other social relations are, and all this he must know more accurately than is at present usual." ^ I must confess that I do not see what vestige of a "just retribution" can remain if the judge penetrates into the deep- est causes of a criminal act to the extent Birkmeyer demands. The sad picture of the child that has absorbed, almost with its mother's milk, contempt for everything that others revere, that, neglected and callous, has reached the age when it can feel the severity of the law, will rather arouse in the judge a feeling of compassion than one of indignation. And when he, further, takes into consideration the external circumstances that have deprived the weakling of his last moral support, then, indeed, it will be difficult for him to decide who bears the greater guilt, the individual or society. The more seriously the judge enters into his task, the wider will be the circle of circumstances surrounding the crime that he must take into account. I have not described the social causes of crime so carefully for nothing; they should prove that a crime, apart from the directly recognizable, purely outward conditions, is influenced by numberless factors which are of greater sig- nificance in judging it than is the fact of bad inheritance. An administration of justice that pays no attention to this, or knows nothing of the social conditions of crime, will be little more than a mechanical activity, it will be an adminis- tration of the letter, not the spirit, of the law. To these intricate preliminary conditions that are essential to the performance of a penal act is then added — most difficult of all to grasp and understand — the individuality of the criminal. Even such a staunch adherent of the doctrine of free will as Krohne ^ is obliged to admit : " Why, in one case, the will triumphantly resists these [social] causes, and, in 1 Loc. cit. Note 84. 2 Krohne, "Lehrbuch der Gefangniskunde," p. 205. 256 THE STRUGGLE AGAINST CRIME [§24 another, fails, is an incalculable problem; it is one of those mysteries before which at present we stand baflQed with the confession 'Ignoramus' on our lips." How can the judge solve an equation that is composed entirely of unknown quantities, how can he find his way in this chaos of social and psychological causes, how form his judgment? It would scarcely be possible to find a sharper condemnation of sentencing than Finger ^ gives, when he says: "Definite directions in regard to the passing of sen- tences, which is more a matter of feeling than of deliberation, cannot be given." Only Wach's ^ opinion is even more annihilating: "It is true that the judicial passing of sentences is largely a matter of arbitrariness, mood, and chance. This is an open secret, a painful fact of experience, to everyone who has been engaged in criminal proceedings. Whether the accused is sentenced to six or five or four weeks, or two months, imprisonment is more dependent on the judges, who happen to be sitting, on the subjective views and sug- gestions of the judge, on his temperament and his digestion, than on the gravity of the crime." But this hard criticism, the correctness of which is only too obvious, and the full recognition of the fact that the problem caimot be solved, do not permit the criminal judge to refrain from sentencing. He must find reasons for, and impose, a carefully measured sentence. The adherents of the theory of retribution apparently see a remedy in the exact determina- tion of the psychological judgment of values for every crim- inal act. Birkmeyer desires a "restriction of the judicial power, which extends too far in this direction"; Schmidt' asks for "standards which compel the court, which shall be 1 Finger, "Lehrbuch des deutschen Strafrechts," p. 513. 2 Wach, "Die Reform der Freiheitsstrafe," p. 41. » Loc. cit. p. 308. §24] THE PURPOSE OF PUNISHMENT 257 restricted, as far as possible, in the exercise of its judgment, to give between a certain fixed maximum and minimum, heavier and lighter penalties for the graver and milder forms of the same offense." "This precise, numerical expression of the gravity of each separate offense in marks, months in prison, years in the penitentiary, is scarcely less naive," wrote Kraepelin in his treatise on the "Abschaffung des Straf masses," "than the more lucrative idea, which sprang from the same soil, of regulating the forgiveness of sins by issuing share certificates of different value on the stock capital of surplus good works." This curious method of compensation by providing for an act an accurately measured penalty is, moreover, to be crowned; character and education, descent and environment, resolution and remorse, former convictions and injured legal values, are to be squeezed into a schematic system, which, "with the greatest possible restriction of the judicial judg- ment," shall make it possible to practice just retribution. Apparently the judge will merely have to refer to something like a price list in order to see how heavy the penalty must be, taking into consideration all the factors that bear on the crime. Whether it would then still be possible to find a judge to perform this mechanical work, I am inclined to doubt. But we need not worry about that, for no such criminal code will ever exist, because the preliminary supposition, that life can be expressed in formulae, is wrong, absolutely wTong. How, then, can we take into account hereditary influences, educa- tion and environment, how measure the significance of natural disposition and external conditions? A law that still further restricts the judge's power is subject to the same criticism that applies to our present criminal law: "We do not know the measure that we desire to recompense. It is solely a seek- 258 THE STRUGGLE AGAINST CRIME [§24 ing and groping in infinity, — this that we take to be the searching out of the guilt for which we want to create a balance." ^ I will not delay to repeat the often cited proofs that, under the present system too, sentences differ in every court accord- ing to local, and widely varying, customs, will not point out how often higher and lower courts agree as to the act but differ as to the kind and extent of the penalty, which is hardly compatible with "just retribution," They all, however, pay too little attention to the effect of the penalty. If an official is imprisoned even for a few days, he loses his office and repu- tation; to a respectable citizen who is imprisoned for some negligence or slight offense, every day is a torture; while an habitual inmate of penal institutions scarcely feels a brief interruption of his liberty to be an inconvenience. From my own experience, I will mention only the following cases. A man who had already been sentenced 22 times for such offenses as embezzlement and fraud, theft and resisting an officer, assault and battery, begging and vagrancy, was convicted of his twenty-third offense, insult, and received a sentence of 3 weeks; his next conviction was for insulting an officer, and he was sentenced to 24 days' imprisonment. Another had served 43 sentences, generally for a number of offenses at one time; he had been sentenced 6 times for assault and battery, 18 times for insult, 20 times for resisting State authority. His forty-fourth sentence, for "resistance, insult, and assault and battery" was set at 3 months' im- prisonment. A third had spent 13 years in prisons and penitentiaries, apart from a short detention for begging: 1 conviction for receiving stolen goods, 3 for larceny, and 14 for fraud and attempted fraud. His seventeenth sentence 1 Seuffert, " Verhandlungen des 21 Deutschen Juristentages," 1890, I, p. 250. §24] THE PURPOSE OF PUNISHMENT 259 was again for "fraud repeated a number of times" and amounted to 4 months' imprisonment! The fourth, after having been 7 years in prison, the same length of time in the penitentiary, and 43^ years in the house of correction, was sentenced, for the thirty-ninth time, to 3 days for beg- ging, for the thirty -sixth time to 6 months' imprisonment for repeated thefts. These are, indeed, particularly striking cases, but not ex- ceptions. If we look at a list of the former convictions of old and habitual offenders, we are surprised to find how frequent such cases are. To none of these men does a few months in prison mean a "disgraceful punishment." On the basis of our present criminal law, increasing the severity of the sen- tence does not greatly change the fact that the criminal is much too accustomed to imprisonment to compare the impression it makes with the intense effect produced on a man who acted in a moment of recklessness, or was the victim of an unfortunate chain of circumstances. It is precisely the best among the convicted who are utterly ruined by the pun- ishment, the most depraved who are scarcely touched. Thus the unequalness of the effect of the penalty also, which per- haps we should first have to try in order to appreciate, for- bids our considering the sentence a just compensation for the criminal act. The theory that considers a penalty necessary only "quia peccatum est," is based on wrong assumptions. It may be left entirely out of the question, as being wrong in principle, — the more so, because it is also practically worthless. The Prussian " Zirkularverordnung " of 1799, which, in view of the increasing number of thefts, was intended to make the penalties more practical, contains the following passage: "In making these changes in the former criminal laws, it is our intention, as the paternal head of the State, to secure to 260 THE STRUGGLE AGAINST CRIME [§24 our faithful subjects the quiet possession of their property, to set up deterrent examples to prevent stealing and robbing, to correct criminals where possible, and, if they are incorrigi- ble, to render them innocuous to their fellow-citizens." In this sentence is clearly expressed the other conception of the purpose of punishment : to bring about greater legal security, and to do this by deterrence, on the one side, and by correction and rendering harmless, on the other. The deterrent effect of punishment should be active in two directions. It must impress itself on the consciousness of the people at large and thus act as a preventive, and, through the punishment, it must be a warning to the individual and must thus restrain him from further evil deeds. The first effect, general prevention, belongs to those things the effect of which cannot be given in figures. If we go by statistics, we come to the conclusion that the hoped-for effect is either very slight or entirely non-existent. For years the number of first con- victions has been increasing rather than diminishing, certainly and decidedly increasing among juveniles, as has already been pointed out. From this we may, indeed, conclude that the fear of punishment is not sufficient to check crime; but we must not forget that social causes, popular customs, economic distress, too early participation in the struggle for life, largely explain and make this increase comprehensible. Hence we must restrict our opinion of general prevention to this: the deterrent effect of punishment is not great enough in the face of the growing social menace. That punishment does not deter, may also sometimes be due to its too liberal application. By degrees our whole existence has become so surrounded by a barbed-\\dre fence of penal and police ordinances that it is really difficult to remain entirely unpunished. We must not deceive ourselves into thinking that the fact that the numerous small penalties for §24] THE PURPOSE OF PUNISHMENT 261 acts such as beating carpets at the wrong time, omitting to put ashes on an icy sidewalk, and other harmless offenses, are followed, with no sharp dividing line, by those offenses that the Penal Code threatens \\'ith punishment, detracts from the gravity of the penalty. And I do not think I am mistaken when my experience leads me to assert that the dread of prison and the dread of punishment have lost some- thing of their former strength in the popular mind. In con- sidering this fact, I attach less importance to the fact that more humane treatment, cleanliness and sufficient food, simple though it be, have destroyed some of the terrors of imprison- ment; it is of far graver import that the feeling that causes people to look at crime askance should be weakened or lost. As long as hundreds of thousands of hitherto blameless indi- viduals are annually punished, no very fine reaction of the people against criminality can take place. And the moral of this is, that we need fewer threats of punishment and greater seriousness in the prosecution of crime. At the moment a crime is decided upon or, in the case of passionate crimes, carried out, the idea of punishment has very little effect as a counter-motive, because the criminal is either so excited or so confident of remaining undiscovered that he looks upon the penalty only as a remote contingency. Every crime committed by a previously unconvicted person is a proof of the failure of general prevention. Nevertheless, we may probably assume that, especially with weak and vacillating persons, the fear of punishment is sometimes, in the moment of temptation, determinative and prevents the crime being committed; this of course carmot appear in the statistics. Greater, however, than the value of the threat of punish- ment in the individual case is its educational value for the whole view of life held by the people. 262 THE STRUGGLE AGAINST CRIME [§24 The stamping of an act as an offense the commission of which the State will prosecute w^ith unrelenting severity, immediately arouses the feeling that the act is unsuitable, inadmissible, disreputable, contrary to duty.^ A relatively harmless example may illustrate this. The possibility of being punished for dishonest competition, at first arouses the attention of economic opponents, who watch each other care- fully, so as to be able, in case of misrepresentation, to act immediately. But already the reaction is becoming notice- able, and the words of an advertisement are carefully weighed, — not alone because the merchant fears the eagle eye of his envious opponents. Before long we shall be able to look upon it as a matter of course that every firm that cares anything for its reputation will avoid all extravagant advertisements, calculated to deceive the public, as being unworthy. Thus, general prevention operates rather quietly, slowly, and penetratingly, making the consciousness of right sharper, intensifying the general feeling for right and wrong, and is thus rather educative than directly deterrent. As regards the effect of special prevention, the figures in the statistics of relapse are uncommonly instructive. They show that it fails utterly. We have already seen that many criminals reappear before the criminal judge in the course of the same year, that the more frequent former convictions are, the surer and quicker is the relapse, and also that the severity of the punishment is without influence. If anyone should take the trouble to jot dowm graphically the career of an habitual criminal, he will be astonished to see how short the time always is between the end of one sentence and the com- mission of a new crime, especially if he bears in mind that not every offense inmaediately comes to the knowledge of the court. 1 Liepmann, "Einleitung in das Strafrecht," Berlin, 1900, O. Haring, p. 291. §24] THE PURPOSE OF PUNISHMENT 263 The reasons why punishment fails to have a deterrent effect on the individual lie in different fields. The first reason is in the execution of the sentence itself, which, looked at closely, loses much of its horror. I do not share the opinion that security from hunger and cold makes imprisonment actually inviting. Nor can the occasional remark of a crim- inal, that his desire for the comfortable quiet of prison life led him to commit some offense, lead me astray, even if he speaks the truth. It has been my experience that practically all criminals long for the time when they are to be set at liberty. As long as the prisoner in a penal institution is subject to the strict system of the house, and sees day after day pass, all too slowly, in hard, monotonous work, he certainly does not look on imprisonment as desirable, or even easy. But it is a well-known psychological phenomenon, that the remem- brance of pain and suffering very soon fades, and that time soothes even apparently unendurable trouble. This is even truer of the impressions made by imprisonment, in which it is the long duration, the eternal sameness, the strict disci- pline as a whole, that weigh so heavily. But from a distance, the danger of having to go to prison again does not seem so unendurable; as a counter-motive to new crimes, the remem- brance has scarcely any effect. Let me say at once that I would not for a moment consider it advisable to keep the remembrance alive by making the penalty severer. Such a course would grind the more harmless and milder criminals even finer than does the present practice, and would be ineffective as regards habitual criminals. The second reason for the failure of special prevention is to be found in our laws. Recidivism is regarded as a ground for increasing the penalty only in the case of a few crimes, and then only if it is the same offense that is repeated. I have had to point out again and again that all offenses of 264 THE STRUGGLE AGAINST CRIME [§24 equal psychological value, as well as the fact of a former conviction for any offense, should be taken into account in passing sentence. As a matter of fact, this is actually done in the practice of the courts. I am always glad when I hear a severe sentence imposed on the ground of frequent former convictions. But the constant taking into account of the injury done to a legal value prevents the carrying out of this principle, and produces such judgments as those mentioned on page 258. But how is a sentence of 4 months' imprisonment to make an impression on an old swindler, who is con\'icted of his seven- teenth fraud, and how can 3 days in jail for begging affect a man who has spent nearly 19 years in penal institutions? If punishment were to have any deterrent effect at all on such old prison habitues, the penalty would have to be one to be really feared, and that could only be hoped if it were increased for every offense. But — after all that has been said, this requires no proof — even then the effect would fail in the case of criminals whose nature is such that they cannot be influenced by a motive of this kind. The most drastic laws, fire and sword, the wheel and the gallows, have not rooted crime out of the world. Hence, where it is not possible to operate by fear, other measures must be taken. Punishment is intended to protect society from the criminal assaults of certain individuals. In our endeavors to reach this goal we must not discard a method because it rarely proves to be effective. Even it it were only on account of its educa- tional value, I should not like to do away with the deterrent effect produced by the threat of punishment. But it would be a mistake to construct a penal code entirely from the standpoint of deterrence. Let him who does not approve of this formula, put Heim- berger's question ^ to himself: Why does not the State repeal ^ Heimberger, "Der Begriff der Gerechtigkeit im Strafrecht," 1903, p. 31. § 25] THE MEANS OF PUNISHMENT 265 its criminal laws? With Heimberger he will have to answer: "Because from a repeal of its criminal laws the State would have to fear, and rightly, the war of all men against all men, the destruction of all order, and its owm end." The State must protect society by means of its laws. Much higher is the endeavor to make the criminal harmless by making him better, by giving him the incentives that he lacks and trying to supplement his defects of education and disposition. We may as well acknowledge to ourselves at the outset that these efforts will often fail, will fail for the same reasons that the attempt at deterrence fails, because the means used to correct and improve the criminal, above all the execution of the sentence in its present form, have too many defects, because our laws fail to give us the opportuni- ties that we need, and, finally, because many criminals, on account of their natural disposition and mentality, are incor- rigible. Even from the standpoint of the theory of better- ment, then, nothing can be done with these latter but to make them harmless. Defects in legislation and in the carrjdng out of sentences, however, can be remedied. In order to do this we need only keep them clearly in view, and I will now try to discuss "punishments" and their psychological significance in the prevention of the descent into crime, always keeping this end in view: the protection of our health, our honor, our property. § 25. The Means of Punishment The most radical means of preventing a criminal from re- peating his evil deeds is to put him to death. Capital punish- ment has, therefore, always been used in the case of certain criminals whose particularly dangerous acts made them a special menace. Thus the crime was "atoned for," society was relieved of the necessity of supporting such a person for 266 THE STRUGGLE AGAINST CRIME [§25 years, and was safe from the danger of his attacking the officials of a penal institution or, in case he should escape, of his menacing public safety in general. It cannot be denied that, from the standpoint of security, capital punishment is justifiable; de Fleury ^ even desires to see it much extended in the interest of a social selection; what is repulsive to our feelings about the outward procedure could be done away with by changing the method of execution. The grounds for and against capital punishment have so often been discussed ^ that it is not necessary to enumerate the objections to it, among which the possibihty of a mis- carriage of justice ^ is the most serious. For the most part, they lie in the sphere of feeling, which, in general, rejects the execution of the death sentence. It is essential, however, that we should consider whether capital punishment acts as a deterrent; I can scarcely believe that it does. German statistics do, indeed, show that the number of those condemned to death has decreased some- what, but only very little. Belgium, on the other hand, where no capital punishment has been carried out for years, has also had no increase of the crimes for which capital punishment is the penalty. Observations show that the effect of executions is by no means deterrent. Ferri * had the oppor- tunity of being present at two executions in Paris. His remarks show that their effect on the suburban population of Paris was the very opposite of what was hoped for.^ Instead of dull terror, he saw curiosity, pleasure in the unusual sen- 1 De Fleury, "L'ame du criminel," Paris, 1898, Felix Alcan, p. 134. 2 Francart, "La peine de mort" (Mitt, der I. K. V. VII, 36). » Lohsing, "Abschaffung der Todesstrafe" (Arch. Krim. Anthr. IX, 1). * Ferri, "Les criminels dans Tart et la litterature," Paris, 1896, Felix Alcan, p. 75. * A fine description of such a scene, which, as comparison with Ferri's ob- servations shows, is entirely unexaggerated, is to be found in Zola's Paris " (Biblioth^que Charpentier, 1898,-p. 491). §25] THE MEANS OF PUNISHMENT 267 sation, betting as to what the demeanor of the condemned man would be, everything, in fact, rather than the solemnity suitable to such a sad occasion. It can positively be asserted that the peculiar role played by a person condemned to death, the attention that his deeds, his hfe, his behavior at the time of the execution, arouse, thanks to the public love of sensation to which the press caters, are an actual attraction to a number of psycho-pathological individuals. The fear of lifelong imprisonment would probably have a more whole- some effect on the peculiar individualities of assassins and their ilk than does the martyr's halo of glory, the imagined fame of a sensational execution. Whatever our opinion of capital punishment may be, its retention will have just as little material influence on crimi- nality as its abolition. Deportation may, undoubtedly, be regarded as a conven- ient method of getting rid of dangerous persons by presenting them to other countries. Theoretically, we can perfectly well imagine that the necessity of getting on in a strange country might divert the too well developed impulse from deeds of violence. But, considering the nature of criminals, I fear that the number of individuals in whom this possibility can be depended on would be quite insignificant. Suitable as deportation would be for these few energetic and vigorous persons, for most of the others it would be just as unsuitable; for them it would mean an altered and delayed sentence of death. Most of the attempts made hitherto have come to grief, largely, probably, on account of wrong selection. As to the practical success of deportation, opinions diflfer widely.^ But the question of deportation seems to me to be well worth ^ Brack, "Fort mit den Zuchthausem," 1894, and "Die Gegner der De- portation," 1901; Mittermaier, "Kann die Deportation im deutschen Straf- system Aufnahme finden?" (ZStW. XIX, 85); Heimberger, "Zur Reform des Strafvollzugs," 1905. 268 THE STRUGGLE AGAINST CRIME [§25 further discussion, without its being necessary to make such discussion difficult by adopting a passionate tone. For the present, certainly, I personally think we should do well to make use of the strength of our prisoners at home. We still have in Germany plenty of unfruitful marshes and heaths, streams to be dammed and valleys to be closed up, and such work waits to be done in places where it is impossible to employ ordinary workmen, because it is too difficult to provide them with shelter and food, and the pay would be too small. But here the State can step in as an employer, and it is doing so more and more. Only those convicts are employed who have good prison records, and only in places where otherwise the work would not be done because laborers are not to be found, or where exceedingly high wages would prevent the work's being profitable. In the year 1901, 2300 prisoners were employed in all the provinces of Prussia, and proved themselves to be willing and able. "No difficulty was experienced in the matter of discipline, and attempts to escape were very rare." This result cannot be too strongly empha- sized, for it shows that even recidivists — only such were used in this work — do not under all conditions require expensive cells, high walls, and the whole official prison apparatus, in order to behave well. Attempts to use convict labor out- side of the country have proved so satisfactory that we might well demand that they should be more extensive, but as long as the use of such labor at home proves to be practicable — being both cheaper and better in every respect — we need not consider penal deportation. The slight success of imprisonment has led Bennecke to suggest that, in the case of the incorrigible criminal, the pim- ishments should be made so severe that he would fear them, wherefore Bennecke demands that such criminals should receive special treatment, in which corporal punishment §25] THE MEANS OF PUNISHMENT 269 should be one of the chief features. The advocates of corporal punishment frequently refer to the good results obtained by it in London, where in a short time it is supposed to have put an end to attacks by so-called garroters in the streets. This proof of the efficacy of corporal punishment, unfortunately, rests upon an historical error.^ In January, 1863, a high official congratulated the grand jury on having been so successfully energetic that the bands of garroters had disappeared; hence the law introducing corporal punishment, which was not proposed until July of the same year, came too late. It is to be regretted that Denmark has recently enacted a corporal punishment law, although it applies to only a few cases. At the same time the conditional sentence was in- troduced and the age of legal capacity for acts was raised from 10 to 14 years, both changes being so advantageous that we can afford to overlook the revival of corporal punishment. Nevertheless, it is disheartening enough that a cultural state has reverted to such a brutal means of education and one that is of most questionable value. Altogether it is surprising to find people still enthusiastically praising flogging. Experience in the army, where it was formerly thought impossible to get on without the stick, has shown how easily corporal punish- ment can be dispensed with. Discipline in our navy is far better than in those of many other countries, where fear of the "cat-o'-nine-tails," or other equally edifying instruments, helps to keep the men in order. Such humiliating methods of punishment are surely not necessary. Corporal chastisement does still exist in Prussian peniten- tiaries as a disciplinary punishment, but it is very rarely used. The brutalizing effect that corporal punishment must have on the man who is flogged, on the prison officials, and on the 1 Typjerg, "Die Prllgelstrafe in DfLnemark" (MSchrKrimPsych. I, 415 and II. 133). 270 THE STRUGGLE AGAINST CRIME [§25 spectators, is out of all proportion to the possible good effected. Krohne ^ speaks most decidedly against it. " It shows an entire misunderstanding of the 'brutal nature of criminals' to believe that the prospect of intense physical pain would prevent an outbreak of their malice or passion." Whoever desires to convince himself of its failure as a means of de- terrence, should read Dostoievsky's minute psychological observations made during his imprisonment in Siberia.^ In any case, the introduction, or rather the revival, of cor- poral punishment in our penal system would involve so many disadvantages that it is a matter of indifference whether occasionally an individual criminal is found who fears it. It is certain that no one improves under it. The loss of civil rights is just as ineffective a means of de- terrence as of correction. It may even hinder a man in his efforts to rehabilitate himself in society, as, for instance, when his inability to fill the office of a guardian, or to witness a document, makes it known to those about him that he is a former convict. But such cases are becoming rarer and rarer. The loss of civil rights now generally follows only if a crime has been committed that betrays a particularly base char- acter, and it is improbable that such persons will immediately seriously endeavor to rehabilitate themselves. It is entirely in the interest of the State to deprive them of every influence on public and private affairs. I consider it clearly advisable that this loss of rights should be extended to include the right to exercise parental authority. Above all, the right of guard- ianship, even in the immediate family, must be taken from one who shows by his behavior that he is unable to lead an upright life himself, much less to supervise the training and education of minors and to manage their property. ^ "Lehrbuch der Gefangniskunde," p. 356. * Dostoievsky, " Memoiren aus einem Totenhaus, Leipzig, Philipp Reclam." §25] THE MEANS OF PUNISHMENT 271 Placing a man under police surveillance is of particular interest, because, in this instance, the decision, by law, rests with the prison officials; even though the right to impose police surveillance is assigned to the "higher state police authorities," yet there is no doubt that the greatest weight is laid upon the "judgment of the administrators of the prison." Here we find recognition of the principle, that the changing of an admissible secondary punishment into a definitely imposed one should be made dependent on the in- dividuality of the criminal, which careful observation affords a better opportunity to judge than does court procedure. Its advocates are few, and for good reasons. The habitual criminal laughs at it. He knows how to escape it as soon as he begins his underhand doings again. In the lists of punish- ments imposed on old habitual criminals, police surveillance is never lacking. It has probably never hindered a man from returning to crime, but often, when a man has been trying to pull himself together again, poUce surveillance has been the determinative factor that has drawn him back into the abyss. This experience has led to an arrangement by which, in certain cases, provident societies, instead of the police, are allowed to exercise the protective supervision. In this way the interference of the lowest organs of the police in the career of a released convict is avoided. When the chap- lain of an institution, whom experience of many cases has shown "how useless, on the one hand, and harmful, on the other, the effect of police surveillance may be," feels himself con- strained, in his capacity as a prison official, to oppose the ex- ercise of such supervision in most cases,^ and when it is known that this view is shared by nearly all intelligent prison officials, the wish to have §§38 and 39 entirely omitted from the Penal Code is probably justified; they would hardly be missed. * Krauss, "Der Kampf gegen die Verbrechensursachen," 1905, p. 359. 272 THE STRUGGLE AGAINST CRIME [§25 Most questionable, in particular, is the right of the police authorities to expel a former convict from a city or town.^ The handing over of delinquents to the State police author- ^X. jties I have already spoken of as being the recognition of the necessity of social repression, even when the offense is quite a minor one. It is surprising that this measure applies only to beggars, tramps, drunkards, prostitutes, and cadets, and not to far more dangerous persons. When these delinquents are turned over to them, the State police authorities have the right to commit the convicted persons to a workhouse for a period not exceeding two years. This benefits not only society, but also the vagabonds and prostitutes themselves, although usually they are far from being satisfied with this treatment. A very large number of physical and mental inferiors are found among them. Where the firm will of the institution officials affords them a protection from their own instability, where the work assigned them spares them the necessity of taking thought for the morrow, where the impossibility of ' The power of the police to expel criminals rests, in Prussia, on the statute of December 31, 1842, relating to the settlement of newly arrived persons. The second paragraph of this law determines, as an exception to the " Frei- fugigkeitsprinzip," that the stay of a Prussian citizen in a place where he has his own dwelling or is able to provide for himself can be forbidden or made difficult by irksome conditions: "If the State police finds it necessary to exclude a released convict from residence in a certain place. The State police authorities, however, are only empowered to do this in the case of convicts who have been imprisoned in a penitentiary or, for a crime which stamps the 'perpetrator as a person dangerous to public safety or morality, has been sentenced to some other penalty or has been imprisoned in a house of correction." The question whether this regulation is still applicable or has perhaps lost its validity in consequence of the subsequent national criminal code, is one of the most disputed points of public law. The " Oberverwaltungsgericht, " however, in its decision of February 24, 1883 (vol. IX, p. 415), has accepted its validity and given in detail reasons for doing so. Hence, with us, the law is still in force, that criminals who show themselves to be dangerous to public safety or morality — and what criminal is not? — are subject to expulsion by the police authorities. §25] THE MEANS OF PUNISHMENT 273 obtaining spirits puts an end to their continuous drunkenness, idle vagabonds often prove to be industrious, reliable work- men, and indolent prostitutes to be skilful and willing serv- ants. But purposeful and unremitting guidance is necessary, otherwise their energy fails them. Hence they relapse im- mediately into idleness as soon as they are discharged. From this it follows that the period of confinement must not be too short. In the case of those who are corrigible, release might be tried after several months of model behavior, perhaps in the form of a leave of absence, which should become perma- nent if the good behavior continues for a year or two. But the incorrigibles have shown themselves to be still as bad at the end of two years, the longest time for which they can be committed in Germany. The prostitutes immediately return to the brothel, the men resume their interrupted wanderings, and it is only due to chance or their skill in eluding the eye of the police if they are not re-arrested after a few days. The short time that they spend in jail before they are returned to the workhouse is quite superfluous. It only considerably increases the expense to the State, in so far as they have to be taken first to the jail and then sent from there to the work- house, instead of being immediately committed to the latter. This delivering of offenders to the State police is at present only a half-measure which has stopped short of the final and most important step. But — and herein lies its advantage from the standpoint of a purposeful criminal policy — it has broken with the principle of retribution, and only serves the purpose of freeing society from these parasites. It cer- tainly cannot be denied that the sums obtained by begging amount to millions, but, after all, anyone who voluntarily taxes himself for the support of the habitual beggar can put a stop to it whenever he chooses. It is not in begging and tramping that the danger lies, but in the fear of work, in 274 THE STRUGGLE AGAINST CRIME [§25 drunkenness, in the state of being a parasite; these individuals are for the most part still in the first stages of criminal activity. And from this the State draws its right to defend itself deci- sively. We can but rejoice in this. The first steps will certainly be followed by others, and in other fields : probationary release in the case of the better element, supervision for years, even, under some circumstances, as Hippel ^ demands, until death. Fines, in their present form, are altogether useless, above all because they are not sufficiently adapted to the financial circumstances of the persons punished. The vicarious pen- alty, moreover, which permits the substitution of a prison or even penitentiary sentence if the fine cannot be paid, and allows the offender to free himself from the changed sentence by paying the amount of the fine, should be entirely rejected. This turns the fine into a class penalty, as it will not, of course, occur to the well-to-do man to submit to imprisonment rather than pay a relatively small sum, while the poor man cannot do otherwise than serve his time in prison. It would be far better, instead of imprisonment, which is only an expense to the State and, moreover, is entirely ineffec- tive as a punishment, to make the obligation to perform certain municipal and other work the alternative. Such a possi- bility did, indeed, formerly exist, for the sixth section of the introductory statute of the Penal Code says expressly : " When in the national laws, instead of imprisonment or a fine, forestry or municipal work is provided or remitted, this stands." According to the general opinion, even new national laws, providing in the same way for the performance of public work instead of a fine or imprisonment, may be enacted,^ if 1 von Hippel, "Verhiitung und Bestrafiing von Bettel, Landstreicherei iind Arbeitsscheu, " 77. Jahresbericht der Rhein.-Westf. Gefangnisgesell- schaft und zur Vagabundenfrage, Berlin, O. Liebmann, 1902. * Olshausen, "Kommentar zum Strafgesetzbuch fiir das Deutsche Reich," I, p. 27. §25] THE MEANS OF PUNISHMENT 275 the national legislation in question already contained such provisions. In its law relating to forestry thefts of April 15, 1878, Prussia has especially urged this forestry and municipal work. I was unable, however, to ascertain whether and to what extent this method of working off is applied, but it seems to me that a very rational idea lies at the bottom of it, the re-introduction of which into our penal system would be practicable. Such penal labor, which von Jagemann ' also advocates, would probably be far more unpleasant to most of those who are sentenced to jail, would be far more likely to restrain them from new offenses and bring the gravity of their actions better home to them, than does a few days' imprisonment. At the same time the amount of work required of an offender could be better adapted to his physical strength. If he should altogether refuse to work, that would show that he is not willing to submit to the social order, and severer measures would have to be taken. Hans Gross ^ has recently written in favor of the introduc- tion of "house arrest" to take the place of fines and brief jail sentences. The objection that house arrest would inter- fere with a workman's occupation. Gross seeks to overcome by suggesting that such persons should be confined to their homes on their free days only. Gladly as I acknowledge the suitability of the house arrest as a penalty that would be much more felt than a fine, especially by the well-to-do, yet, as a physician, I must raise a new objection to it. A waiter or a railway employee who — I am following Gross's example — has only one free day in ten could not forego two such suc- cessive holidays without injury to his health, nor could a servant do without her free Sunday afternoons. The health of a capitalist, however, would certainly not suffer if he were 1 Blatter fUr Gefangniskunde. XXIV, 17, » Hans Gross, "Hausarrest als Strafmittel " (MSchrKrimPsych. II, 209). 276 THE STRUGGLE AGAINST CRIME [§25 obliged to stay in the house for two successive days. It is unavoidable that the effect of house arrest would be too unequal on the diflFerent classes of the population, and, for that reason, I fear it will find few advocates. The reprimand as a punishment exists only for minors between the ages of twelve and eighteen. It does not, of course, balance the injury done, and must, therefore, be characterized as a purely corrective penalty. Is it efifective as such? In certain cases I think it undoubtedly is so. The reprimand is applicable only in "particularly mild cases," and then it amounts to nothing but a serious admonition from the court to lead an upright life. But where such slight offenses are cencerned, is it necessary to use the whole outward appa- ratus of a formal court trial? Certainly not. In fact, we must even go farther, and ask, whether children should come before the court even for more serious crimes. This question too may be answered in the negative. I shall return to the treat- ment of juveniles, but merely wished here to emphasize the fact that the existence of the punishment of the reprimand is justified only from the standpoint of the theory of correction. The most important means of punishment is deprivation of liberty. Our criminal code recognizes four different kinds: 1. Simple imprisonment; its length may be from one day to six weeks. 2. Imprisonment with supervision of the occupa- tion and mode of life of the prisoner, imprisonment in a for- tress; the sentence may be for from one day up to fifteen years, or it may be for life. 3. The prison sentence, the minimum being for one day, the maximum for five years. Prison con- victs may be employed at some work suited to their abilities and conditions; at their request they must be so employed. 4. Penitentiary imprisonment may be for life or temporarily; if the latter, then it may be for from one to fifteen years. Penitentiary convicts must be regularly employed. §25] THE MEANS OF PUNISHMENT 277 This gradation shows that another factor is added to the • deprivation of Hberty, that of work, which advances from mere supervision to the possibiHty of employment and to the compulsion to work. In practice, the differences in the manner of work, particularly between the prison and the penitentiary, have almost completely disappeared. In general, there is the compulsion to work, and, with negligible exceptions, the convict has not even a choice of employment. Every penal institution has a limited number of occupations, often so Hmited that it is impossible properly to consider physical and mental individuality. Formerly the most various trades were represented in every institution. The letting of the work- ing force to contractors then led to competition with outside labor, which is not desirable in the interest of the working class. Thus the State came more and more to admit only those trades that delivered work for other State institutions, for the army and for the railway administrations, and to carry out this work under its own management. To be sure, com- petition with outside workmen is not yet at an end. For everything that is made in penal institutions would otherwise be made by free workmen. But this restriction to the State's own needs affects only a few trades, and the work is not indis- pensable. It is doubtful, however, whether the interests of society are adequately served in this way. In many cases the work is done with the most antiquated equipment, which involves a highly unnecessary waste of force. Moreover, in a large number of penal institutions it is absolutely impossible to teach a prisoner a trade that will be useful to him later in life and will thus aid in preventing his relapse into crime. When we examine imprisonment with and without the compulsion to work, in regard to its expected result, we must be clear in our minds from the outset that correction and deterrence here go hand in hand with the aim to protect 278 THE STRUGGLE AGAINST CRIME [§25 society. Above all, imprisonment prevents the individual who is a social menace from following his inclinations at the expense of the community. In addition, it has a powerful influence on the whole mode of thought of the prisoner. He becomes a member of a well-ordered, self-contained organism, in which everything is regulated to the minute. The carefully planned rules of the institution keep the limits of his right always before his eyes, he learns to obey, learns to submit, becomes accustomed to order and cleanliness, and, above all — he learns to work. Germany has, fortunately, never adopted such foolish methods of compulsory work as the treadmill, the ball and chain, etc., which are still used in some other countries. This purely physical activity, in consequence of its deadening, mechanical, and entirely purposeless motion, has a thoroughly demoralizing influence on mind and body; it is entirely at variance with the purpose that working is intended to ac- complish, that is, to accustom the criminal to regular and in- dustrious activity. With us an incentive is offered him in the shape of a small reward of labor, which at the same time may help him over his first period of need on his release (compare p. 237). The daily stint of work is usually fixed with care, at an amount that the average workmen ^ can well accomplish with constant industry. If he does more, his reward is increased; if less, all the severity of disciplinary punishments are brought to bear upon him. I cannot refrain from confessing here that, in the course of my activity as prison physician, I have completely lost my approval of the "stint," It seemed to me to be of exception- ally educational value to set the prisoner a definite task, in the accomplishment of which he might show his willingness 1 Of course the state of a prisoner's health must be suflSciently taken into account. §25] THE MEANS OF PUNISHMENT 279 and exercise his industry. But the first condition in fixing the task would naturally be proper consideration of the mental and physical capacity of the person who is to perform it. Even if that were possible, many an industrious workman is so clumsy by nature that he cannot keep step with his more skilful companions. Only the intimate knowledge of such a man, usually impossible to the overburdened prison officials, can protect him from punishment on account of failure to perform his task. The practice of requiring a definite "stint," the average amount of work to be expected, tempts the oflScials to judge mechanically of a man's willingness to work by his ability to work, and this is a serious defect. The judging of a prisoner's moral qualifications by the work he accomplishes is an error that an efficient prison official — and we should have only such — may not make, but which, unfortunately, is only too common. Of still graver import is the fact that much work is done, not by the "job," but by the day. According to my experience, a prisoner must be excessively lazy before the fact is discovered, if he works by the day, so that such men are scarcely ever punished for insufficient work. This is soon observed by the workmen who work by the "stint," and the feeling that it en- genders of being unfairly treated is often the cause of con- siderable bitterness. I am well aware that these remarks of mine, based on personal observation, on the punishment lists of different penal institutions and the reports of all kinds of prisoners, will be decidedly contradicted by most prison officials, but I have come to my present conviction slowly and much against my desire, being gradually converted by experi- ence, and if I should fully express my opinion to-day, it would be absolutely for the abolition of work by "stints," — not of work altogether, of course, for I am a firm believer in labor, and, moreover, in industrious labor. 280 THE STRUGGLE AGAINST CREVIE [§25 To many a convict prison is the place where he first experi- ences the pleasure due to the completion of a task, where he first seeks to acquire something by the industrious use of his hands. The prisoner also learns to appreciate the blessing of work from another side; it helps him through the tedious monotony of uniform days. Without occupation, alone within his four walls, he soon begins to fear the phantom of tedium, of lone- liness, of inward blankness. My experience has convinced me that this paralyzing stillness is much more enduring in its effect than the shades of the past. Far more rarely than one would imagine does the memory of his crimes recur to the prisoner to torment his hours of solitude. TVTiat really tor- tures the convict is his inability to make the slowly creeping hours fly. Sundays and holidays, the days of rest and recrea- tion for those who are free, are thus days of inward torment to the convict, and it is with feelings of joy that he receives per- mission to work again. That I am not mistaken in this view is shown, apart from occasional remarks of the convicts themselves, by a very common experience. Patients whom I was temporarily obliged to forbid all work, often begged, even after a very few days, in spite of pain and fever, to be allowed to work again, saying they could no longer endure sitting still unoccupied. This is true not alone of those in solitary confinement. Ordinary prisoners too, who were not ill enough to go to the hospital, could not long endure to sit idle among the others who were working. They too asked for work. Thus work is our most powerful educational means, beside which the regular instruction which all prisoners receive up to their twenty-ninth year, is of secondary significance. In- struction gives knowledge, but education gives the ability to a convict to reinstate himself in the regulated legal life of § 25] THE MEANS OF PUNISHJMENT 281 the State. Therefore, the prison oflScial should have, not the past, but the future of the criminal before his eyes. He must be familiar with the past only to this extent, that he knows the prisoner's descent and development, career and crime, so that he may judge with what kind of a man he has to deal. Certainly it is advisable to show the prisoner his reflection from time to time, that he may know who he is. But then it is necessary to remould him, to clasp the hand that he holds out pleading for help, to show him the way that he must go. The prison official who does not make the improvement of the criminal his highest aim, involuntarily places himself on a plane with the dungeon-keeper who merely carries out another's orders. This improvement and correction cannot, apparently, be combined with the attempt to deter by intimidation; nor should it be. According to the individuality of the crim- inal, there is enough to deter him from further crime in his absence from his wife and children, in the loss of the saloon, of tobacco, of freedom of movement, in the compulsion to work, in the strict discipline, in the association with other criminals, in the fact of being punished itself; where none of these mo- tives is sufficient, treating the prisoner as if, being the scum of society, he were unworthy of a friendly word, will also be ineffective. To maintain order and discipline in a well- planned, well-equipped, and well-organized penal institution is not difficult, but it is difficult to help a depraved individual on to his feet again. Our statistics leave no room for doubt that the carrying out of our sentences is ineffective. The officials of German penal institutions themselves bear witness to this. At a meeting of the Society of German Prison Officials, in 1904, in Stuttgart, the debated question: "Does the practical experience of prison officials show the present penal system to be effective?" 282 THE STRUGGLE AGAINST CRIME [§25 was answered by, "No." Can there be a sharper criticism of the way in which our sentences are carried out than the words of the Prussian ordinance of September 19, 1895, which gives, as a reason for the introduction of the conditional sentence, the "justifiable fear of the injurious efPect of impris- onment, because of the convict's association with depraved fellow-prisoners"? This criticism touches one of the sorest points of our present system, the mixing of former convicts with persons convicted for the first time, of mild, occasional offenders with old habitues of the penitentiary. The young fellow who first enters prison in fear and trembling is soon initiated into things which he should never know, every feeling of remorse is smothered by the mockery that would greet its expression; he is, as it were, at a high school of vice. Anyone who, under these conditions, is not, during a longer term of imprisonment, infected, shows that he might have been corrected without imprisonment at all. To the others Krohne's words ^ apply: "A sentence served in common confinement means that a criminal is punished for his offense by being further instructed in crime at the State's expense." The association of the older habitual criminals with the beginners in crime can be prevented by isolating the prisoners. The so-called " Pennsylvanian system" has carried this prin- ciple to an extreme; every single prisoner is kept alone during the whole period of his imprisonment. The expense of build- ing the necessary cells is sufficient by itself to bring about a restriction of this method; the requirement of silence, existing oftener on paper, it is true, than in practice, separate dormi- tories with common work-rooms, and many other expedients, have been tried. The ideal form of imprisonment still re- mains, however, solitary confinement. Many erroneous ideas exist in regard to the latter. It is ^ "Lehrbuch der Gefangniskunde," p. 246. §25] THE MEANS OF PUNISHMENT 283 quite exceptional now for the principle of isolation to be so carried out that the prisoner is concealed from his companions by a mask, or that he takes his exercise in a little yard all by himself. The loneliness of the prisoner in his cell is interrupted by the keeper, the foreman, by recess, school, and church. It should be most significantly interrupted by the visits of the higher oflBcials, who, according to the regulations, are obliged to visit every prisoner once a month. These visits are intended to afford the opportunity of studying the criminal, becoming more intimate with him, discovering his good sides, so that he may receive psychic treatment, calculated really to correct and improve him. It is to be regretted that, in reality, the visits bear quite another character. No one will imagine that it is possible to become intimately acquainted with a prisoner in fifteen minutes' intercourse a month. And yet, with only 400 individuals, such fleeting visits would occupy from three to four hours a day. No official has so much time at his disposal . Solitary confinement is not suitable for every prisoner; some of them cannot stand the loneliness, although, as I have already explained, I do not believe that solitary confinement can produce psychoses. But, apart from these cases, solitary confinement is subjectively and objectively a blessing to the unspoiled and to those who are not entirely ruined. I do not share the common fear of masturbation. It is not prevented by common confinement, but rather supplemented by peder- astic habits, and I do not consider the injury that it does to be very great. On the other hand, the cell has the advan- tage that the prisoner can be treated individually, and the personal influence of the officials in particular can be better exercised in private conversation. The numberless criminals with numerous former convic- tions, of course, do not require isolation. They cannot be more 284 THE STRUGGLE AGAINST CRIME [§25 corrupt than they are, and they are no longer corrigible. Common work-rooms, then, suflBce for them, but separate sleeping-rooms are necessary in the interest of morality. A particularly happy idea underlies what is called the "Irish penal system." I will not consider its defects, because it is the main idea that seems to me to be most important. The sentence is served in different grades, the lot of the pris- oner being made easier from grade to grade, and this in di- rect connection with his behavior. The better he behaves, the easier does his punishment become, and the reward for his endeavors is in the form of a leave of absence before his sentence expires. The educational element lies precisely in the prize that he can win by work and industry, obedience and understanding, and it certainly prevents frequent offenses against the discipline of the institution, better than the pun- ishments provided for them. In many institutions I think there is too much discipline and too little training. Reference to America is not very popu- lar, I know, but the remark of such an objective observer as Aschrott,^ that prisoners there are encouraged to behave well by being granted privileges, rather than by being intimidated by the fear of disciplinary punishments, deserves careful attention. Judging by my experience, a remitted disciplinary punishment is more effective than one that is carried out, a warning is better than a threat, instruction than the appli- cation of disciplinary punishments, and a number of our best superintendents of penal institutions agree with me. With exaggerated severity and discipline it is, indeed, possible to attain the absolute quiet of a cemetery, but, underneath, the fire goes on smouldering, and the breath of freedom suflBces to fan the sparks into a new flame, more dangerous in its growth than the one that formerly threatened society. ' Aschrott, "Strafen und Gefangniswesen Nordamerikas," p. 12. §26] SUSPENDED SENTENCE AND PROBATION 285 When we consider the defects of imprisonment, we are struck, first of all, with the fact that it is simply a mechanical carrying out of the sentence. The criminal laws lay absolutely no weight on what the penalty is to accomplish for the convict. The officials who execute the sentence are deprived of all pleasure in their occupation, and they have reason to be glad if they merely succeed in preventing injury being done. This must be changed, and it can be changed without a sentimental coddling of the criminal taking the place of strictness. The gravity of the execution of the sentence cannot be combined with this mechanical absolution of it, the prisoner must be made to see that he himself, by his own improvement, can contribute to making good the wrong he has done; if he canr not do this, he must suffer, so that others need not suffer. Imprisonment will not guarantee legal security until it ac- tually deters and corrects the criminal, and, where that is impossible, cuts him off from society. § 26. Indemnification, Suspended Sentence, and Probational Release Short terms of imprisonment have gradually become a great menace to public legal security. Just as a medicine loses its effect if steadily used, so, too, the abuse of the penalty of a few days' imprisonment is without good results, dulls respect for the laws, and undermines the feeling that pun- ishment is something exceptional, something that should be remote from the life of every respectable citizen. The dread of punishment vanishes. Moreover, such a few days or weeks in prison is of no use as a corrective measure. At least, the officials to whom is left the carrying out of the sentence must refrain, busy as they are, from attempting to arouse a feeling for the right. Nevertheless, short sentences cannot be dis- pensed with, even when we consider the punishment solely 286 THE STRUGGLE AGAINST CRIME [§26 in its relation to the individuality of the offender. It is im- possible to proceed with the heavy artillery of month-long imprisonment in the case of comparatively harmless offenses. Two ways out of the dilemma offer themselves: indemnifi- cation and the suspended sentence. Current legal views all look upon it as a grave defect that the State, in imposing a penalty, leaves the injured person entirely out of consideration, and does not, with the sentence, impose also the obligation to indemnify the injured subject. I know well that that is what the civil courts are for, but this separation has great disadvantages. If, to-day, a laborer is so severely injured by a ruffian that he is unable to work for weeks, he can bring an action for damages. And they will certainly be awarded him, but the award will merely exist on paper; the other's lack of property will prevent indem- nification; in fact, if the injured man sues after the conviction, he has to bear the costs himself. This is more than unjust. Ferri ^ describes this process, which he calls a "grotesque comedy," sharply and strikingly in these words: "The State, which is responsible for not having been able to prevent crime, and to give a better guarantee to the citizens, arrests the criminal (if it can arrest him — and 70% of discovered crimes go unpunished) . Then, with the accused person before it, the State, 'which ought to concern itself with the lofty interests of justice,' does not concern itself with the victims of the crime, leaving the indemnification to their prosaic 'private interest' and to a separate invocation of justice. And then the State, in the name of eternal justice, exacts from the criminal, in the shape of a fine payable into the pub- lic treasury, a compensation for its own defense — which it does not secure, even when the crime is only a trespass upon private property!" Carefully considered, the person injured ' Ferri, "Criminal Sociology," p. 223. § 26] SUSPENDED SENTENCE AND PROBATION 287 or robbed has even to pay for the maintenance of his assailant, for the cost of the administration of justice is borne by the peaceful citizen, not by the penurious law-breaker. In my opinion, it would increase respect for the laws con- siderably if the State would acknowledge its obligation to pro- vide for the restoration of the legal state, not only as regards criminal, but also as regards civil law. The criminal should be obliged to make good the injury by the work of his hands, and to this the State should compel him. This will not be universally feasible, but it would be perfectly possible pre- cisely in the case of slight offenses. This penalty would better conform both to the purpose of deterrence and of correction than does the short term in jail. Such a sentence means, at present, nothing but a couple of days of idleness — work for such a short time is not worth while — in a warm room, with simple but sufficient food. The representative of the theory of retribution, too, might agree with our demand, which makes compensation for the damage done more possi- ble than does the reckoning of a bodily injury, or of a ruined object of value, in terms of days in prison. The habitual criminal would certainly fear such a punish- ment more than a few days in jail, and the obligation to in- demnify will impress more deeply upon him that he must respect the property and the person, the honor and the peace, of his fellow-man. In the case of the occasional criminal, the procedure would be still simpler. His punishment might confidently be postponed and the obligation imposed to in- demnify within a suitable time. The necessity of saving for others will long be a warning to him that will keep him from relapse, better than would a few days' imprisonment, which, if he happens to have a careless nature, he will soon forget. The reasonableness of this idea cannot be disputed, but it is a question whether it could be carried out; yet it should be 288 THE STRUGGLE AGAINST CRIME [§26 possible to find some way that would admit of the combina- tion of these two branches of the law. Perhaps it might also make the "suspended sentence" appear more endurable to some of the theorists who cling steadfastly to expiation. The suspended sentence emanates from the idea that it is not always a sign of a criminal mind if a man falls into the hands of the criminal judge. Negligence, intoxication, irritability, necessity, even recklessness and temptation, may lead to crime, without our being justified in casting stones at the offender. If his act is such that money can be regarded as compensation, he will perhaps try of his own accord to make the damage good. Otherwise he will become subject to legal punishment, although, perhaps, even the judge — I again call to mind Feuerbach's words on page 252 — is convinced that a warning would be sufficient. But why should the pris- ons be filled unnecessarily, why should the man who is suffi- ciently punished for his act by remorse and the obligation, imposed either by himself or by the State, to pay damages, be still further punished? The interest of the community at large is better served by a suspension of the punishment. The forms in which we find it in literature and in practice are very different. In England the suspension of the punish- ment, where there is a reasonable prospect of good behavior, has gradually become more general. It was used long before its codification by the "Probation of First Offenders Act"^ in 1887. The act provides : " In every case in which a person is found guilty of theft, fraud, or any other crime that is pun- ishable by imprisonment for not more than two years, and in which no former conviction is proved against this person, the court before which he or she is found guilty may, in con- sideration of the youth, character, and former life of the ^ Mumm, "Die Gefangnisstrafe und die bedingte Verurteilung im moder- nen Strafrecht," Hamburg, 1896, J. F. Richter, p. 27. §26] SUSPENDED SENTENCE AND PROBATION 289 offender, and in consideration of the insignijBcant nature of the deed, and by reason of any extenuating circumstances under which the act was committed, order, at its discretion, that he or she be dismissed on his or her recognizance, with or without surety, to appear on summons, to hear the judgment, at any time that the court may determine, and in the mean time to keep the peace and maintain a good demeanor." ^ In reaUty, England does not Hmit itself to those cases in which the conditions are fulfilled, but makes the widest possible use of the suspended sentence. In the years 1894 to 1896, of the 27,323 persons who were tried by jury, which in England tries about half of the cases of recidivists, 2109 were released on their recognizances, with or without sureties. This proof of the freedom of the English judge, who is not so closely bound by laws as is the German, shows at the same time that the measure is obviously held in high estimation in England. The results are good. Of the 18,492 persons who were conditionally sentenced during the years 1888-1896, only 1564, that is 8.4%, failed to stand the test of probation. While, in England, only the guilt is established, and no actual sentence ^ passed, the probation system as it existed in Boston as long ago as in 1869-1870 merely postpones the execution of the sentence imposed. In Belgium, at the end of the probation period the sentence is regarded as never having been passed, whereas, generally, it is only the execution of the penalty that is remitted, the judgment and penalty re- maining standing. All these modifications of the suspended sentence are out- . growths of the same principle : the postponement of the execu- * Kaarlo Ignatius, "Die bedingte Verurteilung in England" (ZStW. XXI, 746). * Ignatius, "Die juristische Natur der bedingten Verurteilung" (ZStW. XXIII. 250). 290 THE STRUGGLE AGAINST CRIME [§26 tion of the sentence in the hope that the delinquent will not offend again in the future. It is assumed that for weak natures a threatening punishment is a more effective warning from a relapse, the prospect of a reward in the shape of the remission of the penalty a stronger motive for good behavior, than an absolved penalty. The psychological correctness of this supposition cannot be doubted. The convicted person knows that it depends on his behavior whether he is to be a criminal who has already served a sentence or a respectable man with a clear record; he knows that he can make good the recklessness of a moment by a blameless life, that if he fails in his good behavior, the sentence will still have to be served. A stronger motive for upright Uving than the reward of a remitted sentence cannot be easily imagined; if the man on probation succeeds in rehabilitating himself, the conscious- ness that he has not been given up, that he has been able by his own efforts to live down his offense, will bring with it the conviction that he is able to overcome temptations; he has won back his self-confidence, and, instead of a depraved crim- inal, the State has gained a useful citizen. After long hesitation, Germany has also introduced a modi- fied form of the remission of penalties, conditional pardon. Since January 1, 1903, the "Bundesrat" has been agreed on the principle of this measure, so that at least partial uni- formity throughout Germany in administering it may be brought about.^ Conditional pardon is to be apphed mainly, though not exclusively, to juveniles who have not already been convicted. The severity of the penalty is not to be determinative for the applicability of conditional pardon. Of the greatest significance is the progress evidenced in the 1 Klee, "Die bedingte Begnadigung in den deutschen Bimdesstaaten" (ZStW. XXIV, 69). §26] SUSPENDED SENTENCE AND PROBATION 291 fact that the court that imposes the sentence is to have a voice in the decision. Hitherto the decision has lain en- tirely with the authorities that see to the carrying out of the sentence. I purposely emphasize the word "decision," for we can scarcely speak in seriousness of the Crown's exercising the right to pardon.^ The report of the office of the public prosecutor largely determines the decision. But I cannot see why the office of the public prosecutor should be better fitted to judge than the court that passes the sen- tence. The present practice I consider to be indicative of a transitional state, leading to the suspended sentence. If a court is trusted to determine the just punishment for a crime, taking fully into consideration the individuality of the ofiFender, it should also be considered capable of determining in what cases a postponement of the punishment may be granted in the hope of being able to remit the sentence altogether. It is my conviction that the conditional sentence should be regu- lated by the national laws and that we are fully justified in demanding this. According to the decision of the "Bundesrat," the period of probation is to be shorter than the term required for the lapsing of the penalty in conformity with the statute of lim- itations. In general, it will be one year at least, in the case of penalties that lapse after two years, and, in the case of those that lapse after more than two years, the minimum probation will be for two years. These periods are very short; at pres- ent, good behavior for a year is sufficient to spare the convicted person the execution of the sentence. But the individual who recidivates after only a year has passed, thus shows himself to be so dangerous to public safety that a remission of the punishment in his case would be out of place. Why should not ' 6Va/ 2M Dohna, "Zur Statistik der bedingten Begnadigung" (MSchr. KrimPsych. I, 52). 292 THE STRUGGLE AGAINST CRIME [§26 abundant use be made of such a valuable method of correct- ing and training a person, and his inner self -discipline be pro- moted as long as possible? In the case of mild offenses, I believe that the punishment should be postponed for at least two years, and where graver crimes are concerned, that the sword of Damocles should hang above the offender's head for not less than three years, a constant warning against failure and a constant incentive to good behavior. The less the crime indicates evil qualities in the offender's character, the more certainly can we reckon on success. Those who will fail will thus show more clearly than under the pres- ent procedure that the usual motives which should prevent crime are insufficient; other methods will have to be tried with them. Lengthening the period of probation will decrease the number of those who have been able to stand the test as long as the probational period was short, but the result will then be more valuable in aiding us to progress in the direction of avoiding a punishment wherever something better can be used. Is conditional pardon really something better, then? This must still be regarded as an open question, at least if we con- sider statistics. The relation of the favorably concluded, to the unfavorably concluded, cases, in the course of the last five years, has averaged 4:1. As the number of recidivists during three and a half years, the time used as a period of comparison by the statistical department, amounts only to 13%, the result of the conditional pardon appears at the first glance to be quite unfavorable. And yet that is scarcely the case. Conditional pardon does not apply to offenses that can be met by a reprimand or a fine; this cuts out a number of comparatively harmless offenders, who are unlikely to recidi- vate. Moreover, the statistics of recidivists apply to both juveniles and adults, those of conditional pardon only to §26] SUSPENDED SENTENCE AND PROBATION 293 juveniles.^ And, finally, the nature of the offenses seems to me to be decisive. The tendency to recidivate we find to be most frequent in the case of theft, which is the crime of 29.1% of all recidivists.^ And theft is also the chief crime of juveniles, who far surpass adults in it. I am far from concluding that conditional pardon has al- ready proved to be a success with us in Germany. Further and more detailed statistics are required before that can be decided. In any case, I believe it necessary, in many cases, to supplement conditional pardon with special state education or protective supervision, which must certainly be seriously considered for most of these juveniles.^ For instability, of which crime is an eloquent proof, is certainly not corrected by conditional pardon alone. This might sooner be the case with adults, who have a better understanding of the seriousness of the situation than have immature juveniles. Parole or conditional liberation is based on the same psychological pre-suppositions as the conditional or sus- pended sentence. Section 23 of the Penal Code reads: "Persons condemned to a longer penitentiary, or prison, penalty may, when they have served three-quarters, which must not be less than one year, of their sentence, if they have behaved well during this time, be released on parole with their consent." The "Bundesrat" demanded that there should also be proofs of improvement, but the "Reichstag" struck out this condition. Nevertheless, by way of ordinance, improvement has been made a condition of release on parole, in Prussia at least. The prison director may recommend such release only " if he is convinced that the pris- ' Graf zu Dohna, "Zur Statistik der bedingten Begnadigung ' (MSchr. KrimPsych. II, 252). ^ Kriminalstatistik fUr das Jahr 1901, II, p. 24. ' Franz von Liszt, "Der Misserfolg der bedingten Begnadigung" (ZStW. XXV. 237). 294 THE STRUGGLE AGAINST CRIME [§26 oner has improved and will not abuse the opportunity offered him to begin a new, honest, and law-abiding life." I am the last person to disapprove of this condition, which alone would conform to the protection of society that I demand, but it seems to me that in Prussia judgments are formed from entirely different points of view from those current in most of the other federated States. In the years between 1894-1895 and 1903-1904 conditional release was recommended only in the case of 1796 of the Prussian convicts subject to the Min- istry of the Interior. The recommendation of the adminis- trations of the penitentiaries was acted on by the super- visory board of justice in only 656 cases; that is, 0.86% of the total number of 75,756 convicts! The fact that their recommendations are so seldom complied with, makes the prison directors slow to advise the release on parole of a prisoner, as I know from my own experience, and in many cases where there is good reason to believe that a man might safely be released on parole, no such recommendation is made, because it is fairly sure to meet with refusal. It is not difficult to prove how wrong this method of applying such a promising measure is. In Wiirttemberg, in the course of 23 years, of the 11,845 prisoners in Ludwigsburg, not less than 1287 (= 10.9%) were released on parole.^ The privilege had to be recalled in only 2.4% of the cases ! This success must be regarded as especially remarkable, for Krauss ^ has rightly drawn attention to the difficulty clumsy police supervision puts in the way of the rehabilitation of the released convict.^ ^ Schwandner, "Aus der Praxis der vorlaufigen Entlassung" (MSchrKrim. Psych. I, 364). ^ Krauss, "Der Kampfgegen die Verbrechensursachen." 1905, p. 422. * Only recently an instruction of the Prussian Minister of the Interior, of May 11, 1904, sharply impressed upon the police authorities that they should exercise supervision over paroled convicts in such a way that their "progress should not be interfered with nor they themselves exposed to public contempt." § 26] SUSPENDED SENTENCE AND PROBATION 295 The low number of those who failed shows that prison directors well know how to make a proper selection. The decision as regards the petition is in the hands of the Ministries of Justice, to which prisoners in Bavaria and Wurttemberg must apply if their requests to be released on parole are refused. That conditional release has an educational value that extends far beyond the period of probation, is shown by experiences in Southern Germany. Investigations of the later life of those conditionally released proved that only 11.4% in Bavaria, 16.1% in Wurttemberg, were convicted at any subsequent time. Schwandner's ^ figures appear to be high, when we consider that, within the first five years from the time of the first convictions, only 15.6% had to be sentenced again, according to the German criminal statistics. But this refers to all those convicted, even of harmless offenses, while Schwandner's figures include only recidivists over thirty years of age who had been deprived of their civil rights, thus only a group of dangerous criminals. It is very regrettable that within the same country a national law should be so variously treated in the way it is applied, as is the case with conditional release in Prussia and in the other States in the federation.^ And yet there can scarcely be any doubt as to what is the best method. I consider also the saving in the cost of maintaining prisoners a great advan- tage. In Wurttemberg, Sichart ^ found that in thirteen years 108,016 marks had been saved in consequence of 782 paroles, of which only 1% resulted in failure. This material advantage, 1 Loc. dt. p. 365. ^ In addition to this abundant use of release on parole, sentences are fre- quently shortened by pardon in Wurttemberg. This was the case, from 1896 to 1902, with 1.48% of the penitentiary, 5.87% of the prison, convicts! ' von Sichart, "Die Freiheitsstrafe im Anklagezustand und ihre Verteidi- gung," 1904, p. 49. 296 THE STRUGGLE AGAINST CRIME [§26 which is of great importance in view of the tremendous cost of carrying out sentences, would not be worth mentioning if other objections to the parole weighed against it. But this is not the case. I have already spoken of what an incentive to the convict it is, to have the prospect of being able to shorten his sentence if he succeeds in gaining the confidence of his supervisors. He can do so only by industry and obedience. It speaks well for the thorough and careful supervision and judgment of the prison officials in Southern Germany, that, in spite of the abundant use of § 23, they have had so few failures. This puts an end to the frequently expressed opinion that by hypocrisy and cant it is easy for a prisoner to deceive the officials, A man whose psychological knowledge merely suffices to maintain strict discipline cannot, of course, be a good judge of improvement. Experience teaches us that it is just the worst elements in the institution, the regular customers, who often behave best, and know most surely how to steer clear of the dangerous points in the regulations of the institution, which threaten in all directions. The fact that conditional release can be granted only to prisoners who have served at least a year, prevents the man who has any knowledge of men — and every prison official should be such a one — from being deceived. If it is his duty to consider in every case the possibility of granting conditional release, it will certainly increase the care with which he observes every prisoner. And the latter once more feels himself to be master of his fate; confronted by a task at which he failed when he committed his crime, he knows the prize which he may win. How different must be his feelings then from those when he is conscious, even during his worst behavior and when he resists all attempts to help him on to a better path, that the day of his release will be the day of his relapse, and §27] ABOLITION OF FIXED TERMS 297 that, though all the officials must be aware of this, the gates of the prison will open to him on the day fixed. No blind confidence is reposed in the conditionally released prisoner. His personal liberty is subject to a number of seri- ous restrictions, he knows himself to be under constant super- vision, and whenever thoughts of a new crime come into his mind, the certainty of his recall immediately recurs to him as a warning. Here, too, I think we fail to take advantage of a valuable means of combat, when we make the possibility of recall extend only over the duration of the rest of the sentence, except when the latter is very long in any case. The situation is, after all, this: that a released convict who has behaved well for two years, for instance, will be very careful not to fail in the third year, because he would then have to serve the whole remainder of the sentence; he will beware of risking the whole tedious work of two years by a single reckless act. The longer, then, we extend this right of recall, the easier will it be, by means of this hard test, to separate the actually improved offender from the socially dangerous one. The shortest time that should be required seems to me to be three years in the case of first convictions, five years where there have been several former convictions. § 27. The Abolition of Fixed Terms of Punishment If a surgeon should have a patient sent him by another doctor with the request to amputate the patient's leg at a cer- tain place because of a dangerous tumor, the surgeon would ignore the most elementary rules of medicine if he should accede to the other's request without first convincing himself of the necessity of the operation. The same course is required of a prison official who is entrusted with the carrying out of a prisoner's sentence, day in and day out. The court turns over to him a prisoner with the definite instructions to keep him 298 THE STRUGGLE AGAINST CRIME [§27 for so and so many years. Even if the most careful observa- tion of the individuality of the prisoner convinces the official that the judge has erred in the length of the penalty imposed, he has no right to interfere; there is no way — except pardon or conditional liberation — in which the sentence can be shortened by even a day, and, of course, no way in which it can be lengthened. An official who is interested in those committed to his care must soon lose this interest. Knowledge of circumstances influencing the deed, careful observation, long and intimate conversations, have shown him that it is only a chain of un^ fortunate external circumstances that has made a certain man a criminal. He is convinced that the moral attitude of the unfortunate person is good, and that it is unnecessary torture to keep him longer in prison, that it may perhaps even mean injury to his body and mind. But he can do nothing to help him, he cannot give the man who is once trapped his liberty a day before the time set, he cannot return him to the family he supports, cannot save the State the cost of carrying out a sentence that has become unnecessary. Still more painful for the thinking official must be the con- sciousness that he must set at liberty a man who does not deserve it. If, occasionally, a lunatic who has been released from an asylum as harmless turns out not to have been cured, and commits a murder or a sexual crime, the press rises in a mighty protest against the inefficiency of alienists. In many cases it is really hardly possible to judge whether an insane person may become dangerous, whereas it can be prophesied only too surely that certain discharged convicts are a menace to public safety. Most of the Prussian prisoners mentioned on page 202, of whom the officials believe that they could not reinstate themselves in law-abiding social life, have probably been set §27] ABOLITION OF FIXED TERMS 299 at liberty since the time of this decision. In spite of the firm conviction that it is only a question of time till the dis- charged criminal breaks into a house again, attacks his fellow- men with a knife, or assaults our wives and children, the di- rector must open the door of the prison for him punctually to the minute. A dangerous dog must be kept chained; woe to the owner who omits to see that this is done! But a far more dangerous man is "set on mankind" with the State's permission. Before me lies the record of a man of forty who is at present serving his eighth sentence, all of the sentences being imposed for sexual assaults on children under fourteen. His first sentence of six months was in the year 1886, his last was in June, 1901. Thus in fifteen years the same man has been sentenced eight times for the same crime, the time he has spent in prison amounting in all to nine years; often one offense is separated from the next only by the time that his detention in a penal institution made the commission of another crime impossible. He will soon be discharged again. What child will be the next victim of his dangerous instincts? ^ Another, a boy of sixteen, was sentenced, in 1897, on account of his youth, to only six months' imprisonment for attempted rape. A year later he was sentenced for a repetition of the same crime to a year's imprisonment. Then follows a sentence of three months for damage to property, and, shortly after, a sentence of two years' imprisonment for attempted rape and indecent handling. Thus, within a period of less than five years, this fellow of barely twenty -one has served three years and nine months in prison; in his case, too, there can scarcely * I have purposely left the words of the first edition as they stood. Oa the 7th of December, 1902, the convict was released. Four weeks later he assaulted a thirteen-year-old girl! (Ziemke, "Der Schutz der Gesellschaft vor den vermindert Zurechnungsfahigen " (MSchrKrimPsych. I, 424).) 300 THE STRUGGLE AGAINST CRIME [§27 be any doubt that he will shortly again appear before the court after having once more attacked the sexual honor of a child or a woman. Another man was sentenced in 1895 to nine months for attempted rape, in 1898 to three months for assault and battery, and in 1898 again to two years and seven months in the penitentiary in accordance with § 176 H 3. On January 24, 1901, he was discharged; on June 2 of the same year he assaulted a child of twelve, and was sentenced for attempting the crime of § 176 H 3 and for insult to — four months' imprisonment! Every child, every woman, who falls a victim to such a man is a crying accusation against the State that, in order to main- tain the phantom of "just retribution" in respect to the law- breaker, exposes the most precious possession of our women, their sexual honor. I have purposely chosen examples from among sexual criminals, although the same phenomenon of immediate relapse is found equally among thieves and crim- inals of violence. I should like to see the adherent of the theory of expiation to whom, if his own wife or his own child were brought home to him ravished, the idea would not occur, that it would be better permanently to confine a man whose con- stantly repeated attempts at rape prove his incorrigibility. Must we try the untenableness of our present criminal proced- ure on our own bodies before we can realize it? Are we struck blind to what is daily before our eyes? There must be an end made of conditions that guarantee the criminal his return to freedom where he will find the opportunity once more to gain a few years more punishment, but which leave the peace- ful citizen without protection! The oflficial Prussian statistics conclude their remarks on the probability of relapse with the words: "According to this, all those inmates of our penal institutions who have served three sentences, one of which was of at least six months' §27] ABOLITION OF FIXED TERMS 301 duration, must be regarded as lost; at least it cannot be hoped that their sojourn in the institution will again make them useful members of society. Having established this fact, the statistician must pause; the rest lies with the criminologist and the legislator." But how can the criminologist and the legislator proceed so as to do justice to both problems at once: to protect society from these dangerous criminals, and to treat these persons in such a way that the number of those who become socially fit is increased.'* To adapt the penalty to the individuality of the offender, and to carry this through to the final consequences; that is our problem. And the abolition of the fixed term of punish- ment is its solution. The fixed term of punishment becomes unnecessary as soon as deterrence, correction, and protection form the basis of our criminal law. "We shall keep this tabular calculation of the penalty that is invoked by a crime, an offense, a misde- meanor, as long as the old idea of revenge, rooted in the bar- baric childhood of the human race, continues to dominate our views of criminal justice. Just so long will the judge, uninfluenced by the 'warm-hearted humanity' of a grand and unified 'Weltanschauung,' continue to enter, opposite the credit side of criminal action, his debits in fines, disgrace, corporal punishment, and imprisonment, that proper account may be kept of the just order of this world; just so long will the unfortunate individual who, on the impulse of the moment, has yielded to the pressure of poverty and misery, collapse under the burden of the sentence that deprives him, once for all, of the best years of his life, to turn him out again a broken, joyless, and friendless man into the struggle for existence; just so long, finally, will the habitual criminal gleefully count the days till the prison doors must open to let him out, only 302 THE STRUGGLE AGAINST CRIME [§27 to receive him again after his brief but eventful enjoyment of his freedom. Summum jus summa injuria!" ^ The idea of making a prisoner's punishment depend on his behavior suggests itself so readily that we cannot be surprised at finding, already in the eighteenth century, an advocate of the "indeterminate sentence." ^ At that time the question, what was to be done with the more harmless criminals, was forced into the background by the problem of dealing with the incorrigibles. The fruit of Klein's endeavors was § 5 of the criminal law section of the "Allgemeines Landrecht": "Thieves and other criminals who may become dangerous to the community because of their corrupt tendencies, even after they have served their sentences, shall not be released until they have proved that they are able to support them- selves honestly." Also, in the order of the Prussian Cabinet of February 1, 1799, the same idea recurs: "I have noticed that very many criminals, and, among them, even some of those who have been set free by my pardon, have immediately again committed some crime. For the most part this may be due to the complete depravity of the criminal, and then no other means remains of protecting property from thieves and robbers than to imprison the latter for life." ' But just as this order recommends correction as a means of preventing immediate relapse, just as it desires, that is, every- thing to be tried "before the law can, with justice, ordain this (life-long imprisonment)," so, too, did Klein and the juristic faculty in Halle that supported him. It says in a judgment of the year 1797: * "In order to provide the pris- oner with motives for his improvement, his life-long im- ^ Kraepelin, "Die AbschaflFung des Straf masses," p. 17. ^ von Liszt, "E. F. Klein und die unbestimmte Verurteilung" (Strafrecht- liche Aufsatze und Vortrage, II, 148). ' Rosenfeld, "Zweihundert Jahre Fiirsorge," Berlin, 1905, p. 30. * von Liszt, loc. cit. p. 150. §27] ABOLITION OF FIXED TERMS 303 prisonment shall be made dependent in its quantity on his future behavior." The treasure that a few people thus tried to dig up still lies buried to-day under a mass of regulations which take everything into account except the psychological character of the criminal. And yet how different, how much firmer, harmonious, and — better — the administration of justice would be under the influence of a criminal law that would not blindly strike down the occasional criminal and be weak with the incorrigible. The effect of the indeterminate sentence would be very different on both. The person who is convicted for the first time, if the conditional sentence is not applicable in his case, will enter prison with the honest desire for better- ment. Remorse and his own conscience have shaken him to the depths; he has made the best resolutions. And now he knows that he must win back his freedom himself, that he must prove, under the new conditions under which he is forced to live, that he is inwardly strong. He fights hard to win his release, and he does win it; still for several years the pos- sibility of his recall hangs over him as a sign of what he has overcome, as a warning for the future. And if he is not un- faithful to his good resolutions, the State has one respectable member more. The careless, happy-go-lucky individual, too, who now serves his few months in comparative indifference, would have the majesty of the law brought home to him in quite another way. With the better psychological training of the prison officials, it must be possible to recognize the superficiality of pretended remorse; the careless fellow too probably resolves on improvement, but he does not really improve. With the indeterminate sentence, the few months that he would have to serve under the present law pass, and still no move is made to release him. In slow monotony day follows day, constantly 304 THE STRUGGLE AGAINST CRIME [§27 urging him to introspection, bringing home to him the fact that only a change in himself can set him at liberty. The earnestness of life breaks the wings of airy carelessness. When he then finally arrives at discretion, and the gates of the prison close behind him, firmer resolutions to behave well will accom- pany him. The recall threatens him, too, and he knows that it is no empty threat; he has learnt the full meaning of pun- ishment and fears it. In his case we shall perhaps accomplish no more than this, no real betterment, but even this guarantees public peace better than is done at present. And finally, the incorrigible criminal, is he to spend his life entirely without hope, behind prison walls .'* If the pro- tection of society is not possible in any other way, then, certainly. After all, our present legal order too imprisons men for life, some of whom, as their behavior when pardoned shows, are quite harmless. No one hesitates to demand that a dangerous lunatic should be confined for life. Why not the criminal also.f^ I know a convict, who has lately gone insane, who served seven years at one time, eight years at another, in the penitentiary for rape, with only a short interval between the two sentences. Set at liberty, within a few weeks, he assaulted two women on successive days, and was again sentenced to fifteen years in the penitentiary for rape. The only difference between permanent imprisonment and the present practice is, that now the State gives such a man just so much time as he needs to earn his punishment again, that the State now requires the health and honor of several blameless young girls to be sacrificed before it feels justified in taking what is the most natural course in the world. I even dare to utter a hope that apparently contradicts the belief I have expressed In the incorrigibility of many criminals. I believe that such a penal system would perhaps save many a man who is now sure to be ruined. As I have §27] ABOLITION OF FIXED TERMS 305 already emphasized a number of times, I do not believe that incorrigibility is the result of innate criminal tendencies, but of the inability, due in many cases to defects of mind and education, to live under the present social conditions without trespassing on the legal spheres of others. Why, then, should not unremitting care succeed in kindling a spark of decency in the man who is given up as lost, and why should it be im- possible to educate him slowly and painstakingly, after all? At present this is most difficult, because the criminal knows when his punishment will come to an end; but when once his release depends upon himseK, the consciousness of this fact will perhaps awaken in him the desire to improve, which it will then be possible to cultivate and train by purposeful care and years of discipline. But if all efforts to transform him fail, there is no alternative, absolutely none, to isolation from society. But who is to decide when the moment has come for release or permanent confinement? "The practical carrying out of the separation of offenders into occasional, habitual, and incor- rigible criminals," contended Frank,^ "is opposed by the fact, that the decision cannot rest with the judge, but must be left to the prison officials. Such a consequence, however, — in other words, the admission of the indeterminate judgment — will not be acceptable for the next few centuries, because at present we lack the possibiUty of looking into a man's heart, and because the officials entrusted with the execution of sen- tences have not the confidence of the people, which is an in- dispensable condition of any interference with human liberty." Both objections are justified, but — only under the rule of the present criminal law. Under a future system the judge would not be only a connecting link between the 1 (Mitt, der I. K. V. VI, 577.) I think I am not wrong in assuming that Frank no longer so positively rejects this idea. 306 THE STRUGGLE AGAINST CRIME [§27 examining magistrate and the prison official, would not merely establish the question of guilt. In contrast to his present activity, he would, in fact, have most difficult duties. By deeper consideration of the external causes of a crime and finer psychological analysis of the criminal's individuality, he would have to decide in what cases suspen- sion of the penalty might be tried. He would have to deter- mine under what conditions indemnification must be made, and to see to it that justice is done to the injured person. He would have to select those for whom treatment and education offer more prospect of improvement than does punishment. This is already done with juveniles to-day and, to some extent, with the insane. But with these, the number of per- sons is by no means exhausted, for whom prison promises as httle success as rational treatment promises great; above all, it is the drunkards and partially responsible persons who must be more intelligently provided for. The criminal judge, who is confronted by the problem of making a psychological report of the offender, finds this a more valuable and stimulating opportunity to show and de- velop his abilities than the present situation, wherein he is compelled to almost mechanical activity in judging beggars and vagabonds, ruffians and thieves, and wherein little is demanded of his intellect except in the case of fine differences between fraud and embezzlement, and such like, — unless, indeed, even then the Supreme Court ("Reichsgericht") relieves him of the necessity for thought. Moreover, the activity of the judge will not stop with delivering over to the prison officials an offender for whom he believes a serious warning and thorough education to be necessary. He will be partly responsible for such a delinquent's further career. The training of our judges will, in the future, and this §27] ABOLITION OF FIXED TERMS 307 can be safely prophesied to-day, include temporary service in penal institutions.^ Even with our present laws it is a cry- ing disgrace that the judge imposes penalties the significance of which he is quite unable to grasp. Of course, a few visits to some prison will not suffice, nor the demonstration and examination of a few particularly grave crimes. It would be almost worse than the present state of affairs if the belief should be aroused that it is possible in this superficial way to penetrate into the methods and effect of the carrying out of the sentence, to penetrate, above all, into the depths of a human soul. No, the future judge will have to do his share of the practical work, will have to study the prisoners in detail, learn to know them well enough to report whether a certain offender is to be conditionally released, whether he is worthy of confidence, whether he has failed to improve. In addition, the judge will have to supervise the execution of the sentence he has imposed and to aid in deciding what is to be done with the prisoner. This is already done in Baden and Wiirttemberg. In Wiirttemberg the prison boards include high officials in the departments of justice, adminis- tration, medicine, both Protestant and Catholic clergymen, and even members of mercantile houses; in Baden the en- larged conference of officials has at its head a director or councillor of the superior court, besides several citizens as members. Through the co-operation of the judge and several laymen, preferably those who are at the same time the repre- sentatives of provident societies (compare page 237), the danger which, experience has shown, threatens most adminis- trative boards, the feeling of superiority, would best be avoided. "We prison officials easily develop into autocrats and infallible persons," says Krohne. ' von Jagemann, " Bedeutung der Gefangnislehrkunde fiir die Strafrechts- pflege" (MSchrKrimPsych. I, 377). 308 THE STRUGGLE AGAINST CRIME [§27 In 1897 the annual meeting of the International Union of Criminal Law passed the following resolutions, written by Seuflert and Krohne: 1. In order to ensure the rational carrying out of sentences, the supervisory prison boards must appoint suitable persons to take part regularly in the conferences of the head officers in the larger prisons and penal institutions. These persons must include members of the provident organs. 2. Women as well as men must be appointed for the women's prisons. 3. The persons thus appointed shall have the right to visit prisoners without witnesses being present. 4. They shall, especially, be consulted in regard to interrup- tion of sentences, conditional release, and pardon. In Prussia, it is true, the aid of persons who are not con- nected with the execution of the sentence is possible only in a slight degree. In spite of the warm advocacy of Krohne, who promises the confidential agents of provident societies that they shall be helped in every possible way, and recog- nizes their right "to go from cell to cell and speak pri- vately with the prisoners," these persons are not able at present to do much. Their eflForts fail because, as Krohne admits, prison officials have a "strong aversion" to this new institution. This passive resistance must be removed, and this will be the more easily possible, the more important the duty of exe- cuting the sentence becomes. The far-reaching plans for the abolition of fixed sentences must lead to a further elaboration of the resolutions of the International Union of Criminal Law. The co-operation of public prosecutors, of the courts, and of the administrative * von Rohden, "Einige wichtigere Probleme der Entlassenenfursorge" (MSchrKrimPsych. II, 191). § 27] ABOLITION OF FIXED TERMS 309 boards, must be more extensively assured, a co-operation, of course, that is not limited to participation in conferences. The principal work, it is true, will and must fall to the offi- cial entrusted with executing the sentence. He can do justice to his task only if he has a thorough and all-round preliminary education. Wulffen^ does not consider any man fitted for penal institution service who has not "been through the mill of public prosecutorship and court practice," and even such a one must not be "only a jurist, which is equivalent to a formalist." I consider it questionable whether good institu- tional directors can be drawn from juristic circles alone. But I fully subscribe to his further words: "Education, psychology, and sympathy, these are the three intensified demands that we must make of penal measures in the future. With military discipline, bureaucratic formalism, and knowl- edge of a trade alone, nothing is won." Only "really peda- gogically talented persons are suited for penal institution service." The very best officials are only just good enough for the realization of the penalty. Let me once more draw attention to Krohne's words: "Even if you have the best law, the best judge, the best sentence, and the^ prison official is not efficient, you might as well throw the statute into the waste basket and burn the sentence!" The abolition of fixed terms of punishment, the conditional release, — all hope for greater public security stands and falls with the methods by which the sentence is carried out. Where the prisoner can be effectively prepared for a better future, that is the place to apply the lever. ^ Widffen, " Ref ormbestrebungen auf dem Gebiete des StrafvoUzugs," Dresden, 1905. 310 THE STRUGGLE AGAINST CRIME [§ 28 § 28. The Treatment of Juveniles and Partially Responsible Persons Under our present laws the first criminal act brings the unfortunate creature who commits it, if he has completed his twelfth year, before the bar of justice. In judging of the injury done by public trials, we shall do well to distinguish between two groups of criminal children : those who could not withstand a particularly tempting opportunity, inwardly un- spoiled; and those who, having grown up in a criminal en- vironment, corrupt from their earliest youth, know only the fear of punishment, of the police, but not the dread of doing wrong. For a child of the first group a trial is a stigma that it will have to bear even if acquitted, the detrimental impres- sion of which will be the greater, the more unspoiled the child is. And not only the child suffers, but his family, which is often very little to blame. At school the child is despised by his mates, watched with suspicion by the teachers; per- fectly excusable faults are regarded as signs of criminal tendencies. A sensitive nature may be ruined by the weight of this pressure. In the case of such a child — it need scarcely be said — a trial is the less necessary, because his character can be far better strengthened through educational measures. It is very different with the other group of children, found particularly in large cities, who grow up uncontrolled and selfish. For them the first court trial means the first step towards independence. In spite of his mental and physical immaturity, the child feels himself to be grown up from then on, for he has been treated as an adult by the court. He has been the hero of an act of which the State has taken notice, and with a feeling of self-importance he waits for the news- paper reports of the trial. This feeling of having played a part in public life is not restricted to the child himself. His comrades regard him with a certain respect, — varying in §28] TREATMENT OF JUA^NILES 311 degree, it is true. His particular chums admire him. But it would be a mistake in child-psychology to believe that his example only frightens and repels still innocent children. A child's imagination is excited by everything unusual; there is an air of something exceptional about the youthful of- fender, even to the most unspoiled boy, and his feeling of contempt is tinged with respect for the independence of his "grown-up" comrade. The damage that the presence of such a child in a school does is beyond estimation. And even if, after a public trial, the child, acquitted, is not sent back to school, but is made the subject of corrective education, his name, his act, and his behavior at the trial, will long remain the theme of conver- sation among his school-fellows. The effect of this may be that, where the soil is fruitful, it makes the first breach in not yet firmly founded moral views. - The compulsory school age ends at fourteen; until then the child needs school training. After that no one thinks of regarding a boy as mentally and physically mature because he has left school, because his social independence is beginning. Why is not the criminal child left to the discipline of the school, at least up to this age limit? And if this discipline fails, if consideration for the other pupils makes the criminal child's removal from them necessary, why cannot he immedi- ately become the subject of special State education, without first going through a public trial or, worse, a prison sentence? Punishment is a two-edged sword. As long as it menaces the evil-doer from afar, it may perhaps deter, but as soon as he has become acquainted with it, its effect is dulled; the sec- ond punishment is much less feared than the first. This ap- pears only too clearly in the statistics of adult recidivists; how much more must the threat of punishment lose its eflBcacy if a person has already become acquainted with it in 312 THE STRUGGLE AGAINST CRIME [§28 his youth, if it belongs to the childhood memories of the growing boy or girl. As far as possible, juveniles serving sentences should be separated from older criminals. This separation is not always feasible. Moreover, association with more experienced com- panions of the same age often suffices to strangle every vestige of decency, remorse, good resolutions. Thus, I found little girls in whom menstruation had not yet begun who were astonishingly well informed about all kinds of perverted sexual practices. They had been taught by a precocious and early corrupt companion of the same age, in prison. Rigid enforce- ment of solitary confinement might perhaps have prevented this, but during detention, while awaiting trial, and in the small district jails, there is ample opportunity for the sowing of such seed, however careful may be the method of confine- ment after conviction. Von Liszt ^ thus sums up the conclusion we must draw from such a state of affairs: "If a child commits a crime, and we let him alone, the probability that he will commit another crime is not so great as when we punish him." We should not punish him, but neither should we let him alone. The law for special State education empowers us at pres- ent, after the execution of the sentence, to prevent the con- tinuance of a criminal mode of life by seeking to make up the deficiencies in the child's former education and train- ing. Now, what part does a few months' imprisonment play in the life of a twelve or thirteen year old offender, in com- parison to the special education that is continued up to his twentieth year? In case of acquittal on account of lack of comprehension, the law allows special education to be begun even earlier. Why, then, the comedy of a public trial? Only, 1 von Liszt, "Die Kriminalitat der Jugendlichea" (Strafrechtliche Auf- satze und Vortrage, II, 339). §28] TREATIVIENT OF JUVENILES 313 perhaps, to establish the fact that the child did understand the consequences of its act, after all? This does not seem to me worth while, as long as it is still possible to prove the child's comprehension even after he has been in a school for the feeble-minded! This could certainly be settled in the pre- liminary examination, in order to put an end to the disgrace of having children play a public part in our courtrooms. A child does not belong before the criminal judge, nor in prison. The whole question should resolve itself into this: up to what age is special education to be applied, instead of the criminal law? The International Union of Criminal Law ^ has decided in favor of the fourteenth year as the age at which punishment should be admissible, rejecting the original pro- posals made by Krohne, von Liszt, and Appelius, that the sixteenth year should be adopted, a measure that was also supported by one-third of the prison directors invited to report on this question. Before the child has left school he cannot, of course, be treated as an adult; he must be treated as a child. Hence the fourteenth year is the very lowest that could be set. At that age the growing individual enters upon the years of adolescence, the years when "inward stability is lacking," ^ which must not be measured by the adult standard. To bring these peculiar conditions of the age of puberty into harmony with the criminal laws, requires far more time than the judge can devote to the individual case. But if he could, instead of imposing the short sentence that the law prescribes, he would almost always declare long training and education to be neces- sary. There are also exceptions, cases in which it is so clear that the offense is merely a bit of mischief, that the mildest » Mitteilungen der I. K. V. Ill, 327. ^ August Cramer, " Entwicklungsjahre und Gesetzgebung, " Gottingen, 1902, W. Fr. Kastner, p. 7. 314 THE STRUGGLE AGAINST CRIME [§28 treatment is appropriate. OflScial recognition of such a pos- sibility has found expression in "conditional pardon." In general, only juveniles convicted for the first time, whose penalty would not exceed six months' imprisonment, can be so pardoned. Those who are more dangerous are threatened with special State training after their sentences, obviously because, in most cases, the sentence is not considered suffi- cient. Thus, it only remains to be desired that the treatment of juvenile law-breakers should be legally and uniformly regulated. The programme might be briefly summed up thus: neglected children require compulsory or special State education even when they have not offended against the criminal laws. Criminal prosecution is admissible only after the sixteenth year has been completed; trials are not to be public. Instead of a penalty being imposed, a juve- nile may always be required to undergo special State edu- cation. Where mild offenses are concerned, the sentence is to be suspended till the completion of the twenty-first year, and then remitted if the offender's behavior has been good. If those conditionally sentenced offend a second time, special State education is to be prescribed. In general, the programme agrees with that of the International Union of Criminal Law, except that I should like to see it in its original form, and not as finally accepted, principally because the treat- ment there provided for those between fourteen and sixteen is psychologically more correct than that recommended in the final resolutions. Of particular importance, it seems to me, is the treatment of those persons who stand midway between mental health and mental disease, for whom it is rightly demanded the term "partially responsible"^ should be used. Our criminal law, 1 Compare, in this connection, my explanations in Hoches "Handbuch der gerichtlichen Psychiatrie," p. 34; von Liszt, "Schutz der Gesellschaft gegen §28] TREATMENT OF JUVENILES 315 in contrast to that of former German States and many foreign countries, does not recognize this condition. But gradually the conviction has gained ground that, besides insane persons and normal persons, there are numerous individuals who cannot be judged by the same standards as these others. A law recognizing partial responsibility was rejected by the "Reichstag," on the ground that the term "extenuating cir- cumstances" could be made to cover all the cases to which the measure under discussion would apply. I will not stop to point out that the term "extenuating cir- cumstances" does not exist where the most serious crimes are concerned, nor dwell on the fact that the judge takes the place of the man who would be most competent to judge of mental conditions that are so difficult to recognize, the physician; it is enough to emphasize here that the effect of "extenuating circumstance" is exactly opposite to that demanded by a rational policy towards criminals. According to our present laws, the partially responsible person receives a milder, that is, a shorter sentence. This may knock away the last moral support that he has. The consciousness of getting off with a light sentence decreases his fear of punish- ment, which may have been the only motive that restrained him from criminal acts. But even if he does not regard the mildness of the judgment as a sort of license for his acts, yet the fact remains, that the short sentence is useless. I have often heard such psycho-pathological persons, conscious of their social uselessness, ask for long sentences, in the — gemeingefahrliche Geisteskranke und vennindert Zurechnungsf ahige " (MSchr. KrimPsych. I, 8); Ilafter, "Die Behandlung der vermindert Zurechnungs- fahigen im Vorentwurf zu einem schweizerischen Strafgesetzbuch " (MSchr. KrimPsych. I, 77); Bleuler, "Zur Behandlung der Gemeingefahrlicher " (MSchrKrimPsych. I, 92); Hoegel, "Die Behandlung der Minderwertigen " (MSchrKrimPsych. I, 333); Kraepelin, "Zur Frage der gemindert Zurech- nungsf ahigen " (MSchrKrimPsych. 1, 478). 316 THE STRUGGLE AGAINST CRIME [§28 perhaps vain — hope that their feeble energy might be strengthened, and certainly with the true sense that a short sentence would have no enduring eflPect on them. How much more advisable is the proposal to make the pun- ishment of such persons, not shorter, but different, in quality. This desired change in the punishment would have to be adapted to the peculiarity of every person, sometimes being therapeutic, sometimes educational, in character, under some circumstances leading to removal from society, and confine- ment in a suitable institution. "La responsabilite proportionelle n'est toutefois acceptable que sous la reserve formelle d'une sorte de penalite speciale," wrote Legrand du Saulle as long ago as 1874. And, really, the main point of the whole question lies here. Legal recogni- tion of partial responsibility is only desirable if accompanied by changes in the punishments imposed. What kind of changes these should be, is clear from the foregoing. Some of these persons belong in institutions for epileptics, some in insane asylums. Most of them belong in what would be an inter- mediate institution between the workhouse and the insane asylum. In any case, their treatment requires the services of physicians. In these institutions belong, also, most of the vagrants, among which the physically and mentally normal are in the minority. Of what use are the present short sentences, which sometimes mount up to a hundred and more, or even the temporary sojourns in a workhouse? Of none whatever. Experience teaches us that many inmates of workhouses are industrious and useful laborers, who by their own work cover the cost of their maintenance to the State either partially or entirely. Why should not such people be permanently de- 1 "Traite de medecine legale et de jurisprudence medicale," Paris, 1874. A. Delahaye, p. 723. § 29] CONCLUSION 317 tained in suitable institutions, instead of being turned out into the road at the end of a short time? Such a measure is not as cruel as it seems. The intervals between imprisonment and detention in a workhouse are generally very short, and many persons do not feel at all unhappy under the systematic regime of the workhouse. In this way, too, the number of cases of vagrancy, etc., which at present require so much of the judge's attention, would be greatly diminished, and thus more time would be gained for the thorough investigation of graver crimes. There still remain a few words to be said in regard to drunk- ards. Some years ago a drunkard was committed to an insane asylmn on account of a fit of delirium tremens which passed in a few days. The man was physically sound, but a dissolute drunkard, who, as the records showed, ill-treated his wife and children disgracefully, fought with his neighbors and passers- by, attacked the police, etc. But he was not insane in the legal sense and had to be released. This was the decision of the Ministry, whose special judgment was obtained. This case is typical of the legal conditions that rule at the present day, and shows what should and must be. In such cases the court must intervene and commit the man to a hos- pital for inebriates or, if he proves to be incurable, to a per- manent institution for alcoholics. To all individuals, from the lunatic to the normal delinquent, the same formula ap- plies: adaptation of social repression to the individuality of the transgressor. § 29. Conclusion The adaptation of social repression to the individuality of the delinquent, leads unavoidably to the indeterminate sentence. The need of a more efficacious defense against the dangerous habitual criminal, must, as was mentioned on page 318 THE STRUGGLE AGAINST CRIME [§29 304, make imprisonment appear to be the best of the possible ways. Again and again voices have been raised advocating the indeterminate sentence as the remedy. In 1880, Krae- peHn ^ once more gave due significance to the problem, when, in logically carrying out the theory of correction and entirely rejecting the theory of retribution, which had be- come untenable, he demanded the abolition of the fixed term of punishment. Except for a few, generally unfavorable, remarks, his demand was at first deliberately passed over in silence. But not for long. The idea was too sound, the soil too fertile, for a reform, the weight of opinion that de- manded reform too heavy, the value of the scientific work of the new school too great. In view of the difficulty with which practical ideas pene- trate into chiefly theoretical sciences, and of the century-long stability of the notions in regard to the nature of crime and the manner of combating it, the progress made appears, indeed, astonishingly great. This is, of course, not equally true of all countries. Besides the corrective after-detention of beggars and tramps, and the conditional release, we in Germany have achieved only the conditional pardon, and that only in a limited application. But just in this illustration the triumphant power of the new ideas can best be demon- strated. In 1890 the "Justizministerialblatt fiir die preus- sische Gesetzgebung und Rechtspflege " ^ published "The Reports of the Presidents of the Supreme Courts and the Reports of the Public Prosecutors on the so-called conditional sentence." Of the thirteen reports, twelve were against its introduction, and even in the case of its application to juvenile criminals, only a minority was in favor of it. A few years later thousands enjoyed the blessing of conditional pardon, ^ Kraepelin, "Die Abschaffung des Strafmasses," 1880. 2 1890, LII, No. a. § 29] CONCLUSION 319 which we are justified in regarding as a preliminary stage of the conditional sentence. And in 1904 a public prosecutor, Greffrath, was able, with the general consent of expert opinion, to demand protective detention for an indefinite time, and the meeting of the prison society of Saxony and Anhalt, acting on the proposal of the pubhc prosecutors von Prittwitz and Gaffron, declared the in- troduction of protective detention to be absolutely necessary. What with us is still a cherished wish, in other countries has been more or less realized or will be so. The regulations of the draft of the Swiss criminal code signify a break with the past. They provide that, instead of receiving a prison sen- tence, a dangerous recidivist may be committed to a special institution, his detention there to be for at least ten, and not more than twenty, years, at the discretion of the court, "if the court is con\anced that the delinquent, after serving a prison sentence, would relapse into crime, and if it considers his detention necessary" (Arts. 29 and 30). In the case of partially responsible persons, the judge has the right to di- minish the penalty, according to his own judgment, but he has also the right to commit the person to an institution (Arts. 16 and 17). Most important of all, however, is Art. 35. The court can commit to a hospital for inebriates the habitual drunkard who has been acquitted on account of irresponsi- bility, as well as the condemned habitual drunkard. Here we see clearly the demand for practical treatment, even where a penalty is provided as well. On July 3, 1904, a bill passed its second reading in the Eng- lish House of Commons, providing lengthy detention and special treatment for any criminal who can be sentenced to penal servitude and who has already been three times con- victed of indictable offenses. Finally, in Norway protective detention is already an 320 THE STRUGGLE AGAINST CRIIVIE [§29 accomplished fact. Section 66 of the general Penal Code of May 22, 1902, provides that, when a criminal is particularly dangerous, he may be detained in prison for a period not exceeding fifteen years.^ Even in Norway, however, the principle has not been car- ried to its final consequence, the aboUtion of the fixed term, even in the case of the most dangerous criminals. But the break with the methods of treatment that have obtained hitherto is unmistakable. We may confidently await the further development of criminal law. "In science, as in life, the conservative man advocates ideas to-day which a few years ago were advocated only by the boldest of the radicals," ^ If our views are right, their triumph is assured. One point scarcely needs further proof: the adaptation of the social reaction to the individuality of the law-breaker does not lead to a weakening, but rather to a strengthening, of State au- thority. What could increase our consciousness of the power of the State's organization more than the feeling of being pro- tected from the attacks of those who will not or cannot sub- mit to the legal order? Our respect for the State's authority must grow when we see it pursuing such a purposeful policy 1 Paragraph 65: "If any person is guilty of several accomplished or at- tempted crimes for which penalties are provided in sections 148, 149, 152 clause II, 153, I, II, III, 154, 159, 160, 161 (offenses against public safety), sections 174, 178 (counterfeiting money), sections 191, 192, 193, 195-198, 200-204 (sexual crimes), section 217 (seduction of minors), sections 224, 227 (kidnap- ping), sections 230, 231, 233, 245 II (crimes against the person), section 261 (grand larceny), sections 266-268 (extortion and robbery), section 292 (of- fenses against property), the court can decide to lay before the jury the question whether, in view of the nature of the crimes, their motives, or the attitude of mind that they indicate in the criminal, he is to be regarded as particularly dangerous to society or to the life, health, or prosperity of in- dividuals. If this question be affirmed, judgment can be given that the convict is to be detained in prison as long as it is considered necessary, the term, however, not to exceed three times the fixed penalty, and in no case to exceed fifteen years more than the fixed term." 2 Ferri, he. cit. p. 489. § 29] CONCLUSION 321 towards the criminal that it does not even stop at the most difficult step, his permanent removal from society, when necessary. The indeterminate sentence, and particularly the imprison- ment for life, of a criminal whose offenses are comparatively harmless, have been decried as senseless cruelty, and the mercy shown to the occasional criminal as pure sentimentality — in both cases entirely without justification. Why should a person be made to feel the weight of a penalty when a warn- ing suffices for him, why punish a man who is ready to make good the injury he has done to an individual or society, why imprison a person who is deeply and truly remorseful.'* And, on the other hand, is not the peaceful citizen entitled to protection and security? The means hitherto employed in combating criminality have proved to be ineffective. Hence, no one can be blind to the necessity for far-reaching reforms except those who cling narrow-mindedly to the antiquated and admittedly in- adequate methods that have proved unsuccessful. The facts shown by impartial criminal statistics cannot be denied. The system of criminal law that has been forced and squeezed into sections must also bow to the advance of science. We cannot hope that the new life which we hope to breathe into the rigid and benumbed forms will immediately lead to a sudden and complete reformation, but we may and do expect that its gradual growth will produce better fruit. Society is responsible to the criminal, because some of the causes of crime are inherent in it; it cannot escape the duty of tracing out these causes, and eradicating them where that is possible. The criminal however is responsible to society, because he lives in it and because his criminal activity in- jures its primary conditions of life. Hence he must submit to society's opposing him with all the means in its power. 322 THE STRUGGLE AGAINST CRIME [§29 We have reached the point where the apparently firm foundations of criminal law appear to quake, where a new structure is to be erected, the stones of which have not yet been tried, a part of the material of which has still to be found. But this cannot now or ever be done in the study, nor by means of theoretical abstractions. Only dispassionate consideration that views impartially the phenomena which we call crimes, which observes first and then concludes, — in a word, only the natural scientific method, — can smooth the way that leads to a knowledge of crime and of criminals. Not until then will a sure foundation be laid for the proud structure of legal security. INDEX INDEX [References are to Pages] Abolition of prostitutes, 98, 99. Abortion, criminal, 9, 31, 63, 158. Acquittals, 8. Adulteration of food, 55. Age and criminality, 139-157. Agricultural laborers, 118, 147. Albanel, 133. Alcohol, 44, 45, 46, 69, 119, 228-230. Anomalies, 125, 171-178, 198-201. Apoplexy, 126. Army and navy, criminality in, 84. Arson, 64, 146. Artena, 127. Aschrott, 284. Assault and battery, 27, 32, 43, 44, 45, 56, 63, 65, 77, 78, 83-88, 105, 119, 144, 149, 159, 225. Atavism, 198, 199. Austria, 32, 33, 34, 39, 57, 100. B Baden, 75. Baer, 72, 73, 74, 175, 176, 178, 179, 193, 200. Bankruptcy, 53, 55, 117, 118. Baumgarten, 93. Bavaria, 34. Bebel, 92, 94, 118. Beer, consumption of, 119. Beggars, 162, 247. Behrend, 94. Belgium. 33, 34, 266, 289. Benedikt, 174. Benneoke, 268. Berg, Hermann, 113, 116. Berlin, 34, 128, 191. Beurle, 39. 50. Birkmeyer, 254, 255, 256. Births, distribution, by months, 20, 26. illegitimate, according to re- ligion, r>(o, 57; and home train- ing, 130, 131; frequency, in countries of Europe, 33, 34. Bischoff, 173. Blaschko, 94. Bleuler, 126, 201. Bodio, 31. Bonhoffer, 70, 73, 95, 191. Borderland states, 197. Born criminal, 6, 169, 170, 198- 201, 206. Bosnia and Herzegovina, 34. Boston, 289. Bourneville, 70. Brain and skull, 173-177. Breach of the peace, 27, 149, 166. Brothels, 96-100. Building trades, 147. c Cadets, 96, 97. Capital punishment, 265-267. Castration, 233. Catholics, 52, 54, 58-61. Causes of crime, 3, 5, 11, 12. individual, 15, 123-213. social, 15-122. Character, 244, 245. Characteristics of the criminal, mental, 178-186. physical, 168-178. Chastity, crimes against, 65, 147, 150, 153. Children, physically and mentally inferior, 232. of poor parents, 233. see Juveniles. Cholera, 227. Christians, 52-61. Church, 239. City and country, crime in, 61-69. Civil rights, loss of, 270. Classification of criminals, 198-213. Cocaine, 90. Coercion and threats, 27. Coffee and crime, SS. Conceptions, distribution of, by month, 19, 20, 21, 26. 326 INDEX Concerts, 230. Conditional pardon, 290, 314, 318. Conditional release, 293-297. Conditional sentence, 287-292. Confession, 59, 60. Confinement symptoms, 193. Continued acts, 224. Convictions, 217, 218, 220, 221, 224. Convict labor, 267, 268, 274. Convicts, 9. released, 236-238. Convict's insanity, 193. Copenhagen, 75. Corporal punishment, 268-270. Corre, 5. Corrective-education law, 151. Corsica, 37, 38. Cost of living, 106-119. Country and city, crime in, 61-69. Court officers, crime among, 67. Crime, against chastity, 65, 147, 150, 153; natural laws, 17; person, 7, 10, 11; property, 7, 10, 11, 17, 28, 63, 81, 147, 224. among students, 54, 60, 80-82. as affected by alcohol, 69-88; day of the week, 76-80; economic and social condi- tions, 101-122; ether, 88; gambling and superstition, 101, 102; national customs, 69-88; occupation, 64-69; opirnn, morphine, and co- caine, 89, 90; race and re- ligion, 30-61; season, 16-30; summer festivities, 28; tea and coffee, 88; tobacco, 88. causes of, 3, 5, 11, 12; individ- ual, 15, 123-213; social, 15- 122. circumstances of, 3-6. differences in prosecution of, 31 . geographical distribution of, 30-51. in city and country, 61-69. increase in, 7. occupational, 212. prevention of, 227-241. psychology of, 3, 5, 10-12. punishable and non-punish- able, 1, 2. sexual, 11, 16-21, 24-26. struggle against, 214-322. Crimes, difficulties in definitions of, 31. Criminal, bom, 6, 169, 170, 198- 201, 206. Criminal — Cont. chance, 207. characteristics, mental, 178- 186; physical, 168-178. deliberate, 207, 209. habitual, 207, 211, 212, 219, 222. mental diseases, 186-198. momentary, 206, 209. of opportunity, 207, 208. of passion, 207, 208. professional, 207, 211, 212, 219. psychology, 180. recidivist, 207, 210, 215-222. Criminal abortion, 9, 31. insane, 189. irritability, 9. law, 3-5. physiognomy of the present, 214-226. psychology, 3, 5, 10-12. responsibility, 139, 140. statistics, see Statistics. Criminality, and age, 139-157; domestic status, 162-168; education, 131-138; environ- ment, 133-135; heredity, 124-131; profession, 66-69; sex, 153-162. in Corsica, 37, 38; Sardinia, 38. Criminals, association of, with be- ginners in crime, 282. classification, 198-213. injury done by, 223-226. Cron, 54. Cruelty, 146. Customs and smuggling, 239. D Defense, 245-248. De Fleury, 266. Degeneration, 124, 128, 129 171, 172, 177, 198, 200. Demme, 69. Denmark, 34, 269. Deportation, 267. Deprivation of liberty, 276. Deterrence, 251, 260-267. Diem, 126. Disease, and heredity, 124-131. mental, 186-198. Distilleries, 230. Di Verce, Fornasari, 107. Divorced, criminality of, 167, 168. Dix, 139. Domestic status and crime, 162- 168. INDEX 327 Drowning, 23. Drunkenness, 69-88, 124, 129, 228- 230, 317. Du Chatelet, Parent, 91. Dueling, 54. Durkheim, 22. Du Saulle, Legrand, 316. Dwellings, hygienic, 231. E Ecclesiastics, crime among, 67. Economic and social conditions and crime, 101-122. Education, compulsory, 234, 247. influence on criminality, 131- 138. special, for juveniles, 313, 314. State, 129, 234. Educational institutions, 234-236. Ellis, Havelock, 24, 185. Embezzlement, 116, 117, 150, 159, 160, 225. Engel, 136. England, 33, 142, 288, 289, 319. Environment, 133-135, 201. Epilepsy and epileptics, 128, 129, 146, 188, 197, 199. Ether and crime, 88. Evangelical Christians, see Prot- estants. Evil eye, 101. Executions, capital, 266. Expiation, 246, 251-259. Extenuating circumstances, 315. False accusations, 160. Family disposition, 125. Feeble-minded, the, 18&-198. Ferrero, 92. Ferri, 16, 206, 228, 236, 246, 247, 253, 266, 286. Ferriani, 133, 135. Fertig, Mr.. 77. Feuerbach, Anselm, 252. Fines, 274. Finger, Mr., 256. Fixed terms of punishment, aboli- tion of, 297-309. Flogging, 269. Foldes, 44. Folk-customs, 51, 69. Forestry work, 147, 274, 275. Forgery, 55. France, 62, 108, 109, 119, 136. Frank, 305. Fraud, 28, 43, 48, 55, 63, 67, 116, 117, 150, 159, 160. Free determination of will, 86. Free will, 241-250. G Gall, 168. Gambling, 100. Garofalo, 32, 123. Gaupp, 36, 169. Geill, 75. Gentlemen swindlers, 212. Geographical distribution of crime, 30-51. Germany, 17-20, 29, 32, 33, 34, 40- 51, 62, 103, 110, 111, 119, 130, 137, 141, 220, 224, 266, 290. Gettatura, 101. Geyer, 2. Gift for work, 237. Gross, Hans, 25, 51, 101, 275. Guardianship, loss of right of, 270. Guillaume, 130, 131. Guilt, subjective and objective, 253. H Hamburg, 227. Handmann, 173. Handwriting, 168. Hanover, 31. Hartmann, 126. Heim, 80. Heimberger, 264, 265. Heredity, 125-131. Herz, 39, 50, 117. Hippel, 274. Hirsch, 92. Hirschberg, 110. Hoche, 249. Holland, 33. Home, influence of, 129, 139, 239. Homicide, 31, 32. House arrest, 275. Hysteria, 128, 197. Illiterates, 137. Imprisonment, defects, 285. ineffectual, 258, 261, 274. penitentiary, 276 short,, 285. simple, 276. with supervision, 270. Incorrigibles, 202, 203, 212, 273, 302, 304, 305. 328 INDEX Indecent assaults, 225. Indemnification, 286, 287. Indeterminate sentence, 302, 303, 317, 318, 321. Individual causes of crime, 15, 123- 213. Industrial conditions, displacement of, 147. Inebriates, descendants of, 69-72. see Drunkenness. Infanticide, 26, 27, 63. Insanity, 124, 126, 129, 248. among criminals, 186-198. moral, 203. simulated, 195, 196. Insult, 27, 55, 144, 149, 159, 166. Intellectual abilities of the criminal, 178-180. Intelligence test, 132. International Union of Criminal Law, 206, 209, 212, 308, 313, 314. Intoxication, see Drunkenness Ireland, 142. Irish penal system, 284. Irresponsibihty, see Responsibility. Italy, 32, 34, 61, 100-102. Jews, 52-57. Joly, 37. Judges, 306; 307. Judgment, criminal's, of his act, 182. Juke family, 127. JuvenUes, 140, 216-219, 225, 276, 310-314. Kim, 179, 200. Klein, 302. Kluge, 235. Knecht, 176, 193. Kohlrausch, 235. KoUer, 126. KraepeUn, 84, 171, 257, 318. Krauss, 205. Krohne, 189, 194, 204, 238, 250, 255, 270, 282, 307, 308, 309. Kuppelei, 97. Kurella, 39, 107, 127, 170, 175. Kiirz, 78. Labor, see Work. Lacassagne, 184. Lafargue, 110, 117, 118, 119. Lang, Otto, 76. Larceny, see Theft. Lavater, 168. Law, and popular judgment, 252. corrective-education, 151. criminal, 3-5. Lord's Day, 52, 80. Lawyers, crime among, 67. Legislation, incomparabUity of, 31. Leg03i;, 31. Legrain, 70. Leppmann, Fritz, 191. Lese-majeste, 104. Levasseur, 136. Lewin, 9, 10, 158. Licenses, bar, 230. Lombroso. 6, 32, 88, 92, 138, 161, 168-170, 172, 183, 198, 199, 205, 206. Longard, 195. Lord's Day law, 52, 80. Lotteries, 100. Lowenstimm, 101. M Malicious mischief, 10, 11, 28, 144 149, 159. Mark of degeneration, 172, 177. Marriage and crime, 162-168. Masturbation, 283. Mattoids, 206. May, Max, 109. Mental, characteristics of the crimi- nal, 178-186. diseases among criminals, 186- 198. Metal industries, 147. Meyer, Albert, 110. Mingazzini, 174. Mining, 148. Minor offenses, 4, 9. Minors, see Juveniles. Mitigation of misery, 232. Mohr, 249. Monaco, 34. MonkenmoUer, 128, 129, 132. Montefortinos, the, 127. Moral insanity, 203. Morphine, 89. Morselli, 22, 34. Motives, psychological, of crime, 3 5, 11, 12. Miiller, Heinrich, 106, 107, 113. Municipal work, 274, 275. Mysticism, 146. INDEX 329 N Naecke, 171, 177, 190. National customs and crime, 69. Newspapers, 239-241. Niceforo, 38. Norway, 319, 320. O Obscene acts, 19. Occupation and crime, 64-69, 147, 148. Offenbacher, Martin, 60. Olrik, 206, 208. Opiimi, 89. Palatinate, the, 45. Panderers, 96, 97. Parentage and training, 124—135. Parental authority, loss of right to exercise, 270. Parole, 293-297. Partially responsible persons, 314- 317. Penal substitutes, 228. Penalties, existing, ineffectual, 222. Penitentiary imprisonment, 276. Pennsylvanian system, 282. Perjury, 65. Person, crimes against, 7, 10, 11. Physical characteristics of the crim- inal, 168-178. Physicians, crime among, 67. Plotzensee, 74. Police, 238. Police surveillance, 271, 272. Poverty, 163. Press, the, 239-241. Prevention of crime, 227-241, 251, 260-267. Prices and crime, 106-119. Prinzing, 163-167. Prison delirium, 192. Prison sentence, 276. Probation, 288-292. Procreation, prevention of, 232, 233. Procurers, 104, 154. Procuring for prostitution, 158. Profession and criminality, 66-69, 118. Property, crimes against, 7, 10, 11, 17, 28, 63, 81, 147, 224. Prostitution, and prostitutes, 90- 99, 161, 162, 247. inducing to, 11. Protective detention, 319. Protectors, 97. Protestants, 52, 54, 58-61. Provident societies, 271. Prussia, 31, .56, 130, 131. Psychogenesis of crime, 5. Psychology, of crime, 3, 5, 10-12. of masses, 121, 122. of the criminal, 180. PubUc-house, 144, 148, 164, 165, 167. Punishable and non-punishable crimes, 1, 2. Punishment, abolition of fixed terms, 297-309. capital, 265-267. corporal, 268-270. essential condition of, 1. means, 265-285. origin, 246, 247. purpose, 250-265. threatened but not executed, 238. Quetelet, 156. Q R Race, 30-51. Rape, 11, 118. Raux, 134. Reaction, false, 85, premature, 85. to stimuh, 244-246. Reading rooms, 230. Recall, 297, 303, 304. Receiving stolen goods, 116, 160. Recidivism and recidivists, 207, 210, 214-222, 263, 268, 292, 293, 295, 298-302. Relapse, see Recidivism. Released convicts, care of, 236-238. Religion, influence on crime, 35, 36, 51^1. Reprimand, 276. Resistance to officers, 27, 43, 46, 65, 149. Responsibility, criminal, 139-142, 145, 180, 191, 197, 241-250. Restaurants, 2.30. Retribution, 246, 251-259. Rettich, 83. Revenge, 246, 251, 252. Rodat, 89. Rudin, 192, 193. 330 INDEX Russia, 33, 34, 57, 101. Rykere, 67. S Sacker, 210, 211. Saloons, 230. Sander, 186. Sardinia, 38. Saxony, 53. Scheven, 190. Schmidt, 251, 252, 256. School, 139, 239, 241. Schopenhauer, 242. Schroter, 77. Schuster, Ernst, 142. Schwandner, 295. Season and crime, 15-30. Semoff, 174, 175, 199. Servants, 67, 146. Seuffert, 11, 48, 49, 105, 151, 308. Sex, 153-162. Sexual crimes, 11, 16-21, 24-26, 145, 146. Sexual desires, ceasing of, 1.54. Sexual excitability, fluctuations in, 16-21, 24-26. Sichart, 126, 129, 295. Sighele, 121, 122, 127. Simulation of insanity, 195, 196. Skull and brain, 173-177. Slang, thieves', 183, 185. Smuggling, 239. Snell, 73. Social and economic conditions and crime, 101-122. Social causes of crime, 15-122. Softening of the brain, 197. Solitary confinement, 192, 193, 282 283 Somm'er, 179, 200, 205. Spain, 34. Spirits, consumption of, 119. Spurzheim, 168. Statistics, criminal, 3, 4, 7-13, 17, 30-36, 39-44, 51, 52, 55, .58, 59, 61, 64, 68, 78, 80, 82, 95, 106, 113, 116, 132, 137, 143, 148, 151, 157, 163, 186, 202, 211, 212, 219, 220, 223, 260, 262, 266, 281, 300. Stieda, 172. Stigmata, 126, 171, 177, 199, 200, 205. Stint, 278, 279. Strikes, 120-122. Strohmberg, 92, 93. Students, 54, 60, 80-82. Stumme, 185. Suicide, 21-24, 34, 35, 36. Sundav rest, 80. Superstition, 100-102. Suspended sentence, 287-292, 314. Switzerland, 33. Szarlardi, 34. Tamowskaja, 92. Tatooing, 183-186. Tea and crime, 88. Teachers, crime among, 67. Temperature, and other crimes, 27. and suicide, 21-24. Tenement houses, 167. Theft, 28, 30, 32, 43, 46-48, 57, 67, 105, 106, 110, 113-115, 143 144, 149-151, 1.59, 219. Thieves' slang, 183, 185. Tippel, 234. Tobacco and crime, 88. Training and parentage, 124-135. Tramps, 162, 211, 247 Traunstein, 49. U Usury, 52, 53, 65, 67, Vendetta, 37. Venereal diseases, 91. Villerme, 20. Von Holtzendorff, 251. Von Jagemann, 275. Von Krohne, 4. Von Landmann, 242. Von Liszt, 3, 6, 10, 149, 151, 208, 312. Von Mavr, 15, 34, 106, 113. Von Oettingen, 61, 162. Von Rohden, 48, 114. Von Scheel, 58. Von Weinrich, 254. W Wach, 214, 226, 256. Welcker, 173. Widowed, criminality of, 167, 168. Will, 241-250. Witches, persecution of, 102. Wlarsak, 44. Work, by the day, 279. forestry and municipal, 274, 275. for released prisoners, 237. INDEX 331 Work — C UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. NO PHONE R FEB 1 9 1988 ENEWALS DFr, 1 3 1997 RECEIVE ) REC'D LD-URL 4PR13199S c5^ 3 1158 00005 8692 i_ 0„ r 0- _ t PLEASE DO NOT REMOVE THIS BOOK CARD ^ ^ummo^ '%0:liTV3JO'^ University Research Library 'ERN REGIONAL LIBRARY FACILITY 000 997 265 -•;'i. ' ^^ "^^^^