Crime and the Community 9780231880466

Table of contents :
Preface
Contents
Introduction
Part I: The Criminal Pattern
Part II: The Administration of Criminal Justice
Part III: Punitive Processes
Index of Authors
Index of Subjects

Citation preview

CRIME and the COMMUNITY

CRIME and the COMMUNITY by FRANK

TANNENBAUM

Columbia University Press NEW YORK

COPYRIGHT ©

1 9 3 8 COLUMBIA UNIVERSITY PRESS

First published by Ginn and Company 1938 New printings by Columbia University Press 1951, 1957

Published in Great Britain, Canada, India, and Pakistan by the Oxford University Press London, Toronto, Bombay, and Karachi MANUFACTURED IN T H E UNITED STATES OF AMERICA

TO

ANDY

IN

MEMORIAM

PREFACE

THIS, like every book, is a child of its own time, and reflects the intellectual atmosphere within which it was produced. If it had not been for the work of John Dewey, Thorstein Veblen, and Walton H . Hamilton, this would surely have been a very different book. The extensive illustrative material, drawn from current and easily available sources, is merely illustrative. It is not part of the argument, and the argument is not dependent upon it. T h e material available for the purposes of illustrating the theme of this book is almost infinite in its variety and amount. It is as wide as is the record of contemporary social life. Chapters X I I - X I X were originally written for the National Commission on Law Observance and Enforcement, appearing as part of the Report on Penal Institutions, Probation and Parole (No. 9), and have here been brought up to date. Mr. Morris Ploscowe, who was a member of the staff of the National Commission on Law Observance and Enforcement, wrote Chapters I X , X , X I , and the greater part of X V I I I . I wish to express my appreciation to Professor John Dewey and Mrs. Carlton J. H. Hayes for reading all the first part of the book; to Dr. Paul T . Homan for reading the first four chapters; and to Dr. Carter Goodrich for reading Chapter II. I am deeply indebted to Mrs. Glenore Fisk H o m e who assisted in the preparation of the manuscript. Mrs. Zelma Ploscowe read proof of the entire manuscript and prepared the indexes. T h e author makes grateful acknowledgment to the following publishers: Boni & Liveright for quotations from The New Criminology by Max G. Schlapp and Edward Smith; The Century Company for quotations from American Police Systems by Raymond B. Fosdick; The University of Chicago Press for quotations from The Gang by Frederic M. Thrasher, Chicago Police Problems by the Citizens' Police Committee, The Bail System in Chicago by Arthur Lawton Beeley, and The Jock Roller by Clifford R. Shaw; the Columbia University Press for quotations f n m Prison Methods in New York State by Philip K l e i n ; Harcourt, Brace and Company for quotations from Progressive Democracy by Alfred E. Smith; Harvard University Press for quotations from Police Administration m Boston by Leonard V . Harrison; P. B. Hoeber for quotations from Human Biology and Racial Welfare; Henry Holt & Company for quotations from Human Nature and Conduct b y John

CRIME AND THE COMMUNITY D e w e y , Introduction to Mental Hygiene b y E m e s t R. Groves and Phyllis Blanchard, Criminal Justice in America by Roscoe Pound, and Social Attitudes, Kimball Young, ed.; Houghton Mifflin Company for quotations from Intelligence Tests b y Walter Fenno Dearborn; Alfred A . Knopf for quotations from 500 Criminal Careers by Sheldon and Eleanor T . Glueck, Crime and the Criminal by Philip Archibald Parsons, and The Child in America by William I. and Dorothy S. Thomas; John Lane Company for quotations from Boycotts and the Labor Struggle by Harry W . Laidler; J. B. Lippincott Company for quotations from Principles of Criminology by Edwin H. Sutherland; Little, Brown and Company for quotations from Ten Thousand Public Enemies by Courtney Riley Cooper and Studies in Forensic Psychiatry b y Bernard Glueck; McGraw-Hill Book Company, Inc., for quotations from Minutes of Evidence of the Commission of Inquiry on Public Service Personnel; T h e Macmillan Company for quotations from Prisons and Beyond by Sanford Bates, You Can't Win by Jack Black, Delinquents and Criminals, their Making and Unmaking, by William Healy and Augusta Bronner, Chicago, a More Intimate View of Urban Politics, b y Charles Edward Merriam, and The Missouri Crime Survey; Minton, Balch & Company for quotations from Revelations of a Prison Doctor by Louis Berg and Politics and Criminal Prosecution and Our Criminal Courts by Raymond V. M o l e y ; University of North Carolina Press for the chapter from Osborne of Sing Sing by Frank Tannenbaum; University of Oregon Press for quotations from The Administration of Criminal Justice in Oregon by Wayne L. Morse and Ronald H. Beattie; Princeton University Press for quotations from Human Efficiency arid Levels of Intelligence by Henry Herbert Goddard; the Viking Press for quotations from Dynamite by Louis Adamic and Our Lawless Police by Ernest Jerome Hopkins; Ives Washburn, Inc., for quotations from How to Commit a Murder by Danny Ahearn; West Publishing Company for quotations from Handbook of Criminal Procedure by William Lawrence Clark; J. B. Wolters for quotations from Reformatories for Women in the United States by Eugenia Cornelia Lekkerkerker. NEW YORK

FRANK

TANNENBAUM

CONTENTS

PACK INTRODUCTION

xi

Part One THE

CRIMINAL

PATTERN

CHAPTZS I . POINT or 1 V I E W

3

T h e Search for a Scapegoat, 3 • T h e Meaning of Behavior, 8 • T h e Group and the Community, 12

A M a t t e r of Definition, 17 • The Dramatization

of E v i l , ig • T h e Scapegoat is a Snare and a Delusion, 22 I I . SOCIAL FORCES IN THE DEVELOPMENT OF CRIME

25

C r i m e and Conflict, 25 • T h e Growth of L a w , 3 1 • Progress and Political Corruption, 33 • Violence and Immigration, 36 • Conflicting Mores, 42 • Administrative Conflicts, 47 I I I . EDUCATION FOR CRIME

51

Habituation to a W a y of L i f e , 51 • Crime as Normal A c t i v i t y , 57 • The Supporting Elements, 63 • T h e Hardening Process, 66 • Imprisonment and Education, 71 I V . ORGANIZED CRIME

82

C r i m e as a Livelihood, 82 • Organized Activities, 87 • T h e Place of the Middleman, 99 • Making the World S a f e f o r Crime, 1 0 2 • A S u m m a r y Description, 109 • Crime as a Career, 1 1 6 V . POLITICS AND CRIME

128

T h e Gang as a Political Instrument, 1 2 8 • T h e Function of the Politician, 1 3 5 • T h e Court's Satellites, 1 3 9 • J u s t i c e at a Price, 1 4 6 V I . POLITICS AND POLICE

153

T h e W e b of Corruption, 1 5 3 • T h e Division of Spoils, 1 5 9 • A n Illustration f r o m Philadelphia, 163 - A n Institutional Arrangement, 1 7 1 V I I . T H E PHILOSOPHY OF THE PROFESSIONAL CRIMINAL T h e Logic of Crime, 174 • A Warrior's Psychosis, 178 • Professional I n sight, 182 - Pride and Competence, 1 8 3 - L i f e as a R a c k e t , 1 9 1

174

CRIME AND THE

COMMUNITY

CHAPTER

TAGX

V I I I . PAST THEORIES OF CRIME

196

T w o Basic Assumptions, 196 • Physical " C o n f i g u r a t i o n " and Crime, 198 • T h e Intelligence Test, 203 • The Psychiatrist on the Stand, 210 • Environmental Theories, 216 • T h e Sociologists, 217 • A Theory of Criminology, 218

Pari Two THE

ADMINISTRATION

OF

CRIMINAL

JUSTICE

I X . POLICE ADMINISTRATION

223

Police Functions, 223 • Organization and Control, 225 • Personnel, 232 • Training, 240 • Discipline, 242 • Promotion, 244 • Patrol, 246 • Detection of Crime, 248 X . THE PROSECUTING ATTORNEY AND THE COUNSEL FOR THE DEFENSE

254

The Inefficiency of the Criminal Process, 254 • Powers and Duties of the Prosecuting Attorney, 256 • The Election of the Prosecutor, 258 • T h e Prosecutor and Criminal Investigation, 260 • T h e Prosecutor and the Trial, 261 T h e Plea of Guilty, 262 • T h e Counsel for the Defense, 265 X I . THE CRIMINAL LAW IN ACTION

269

Arrest, 269 • T h e Third Degree, 271 • T h e Preliminary Hearing, 273 • Bail, 277 • T h e Grand Jury, 281 T h e Jury Trial, 283

Part Three PUNITIVE

PROCESSES

X I I . THE PENAL SYSTEM

291

The Magnitude of the Problem, 291 • T h e Purpose of the Prison, 292 • The Age of Our Prisons, 293 • The Old Cell Block, 294 • Overcrowding, 296 • Idleness, 299 • Sanitation and Health, 301 • T h e Warden, 303 • T h e Guards, 306 • Education, 310 • The Reformatory for Men, 313 • T h e Reformatory for Women, 318 • T h e County Jail, 320 X I I I . PRISON DISCIPLINE The Fear of Violence, 323 • The Prison Community, 324 • T h e Prison Rules, 328 • Rewards and Punishments, 331 • T h e Effects of Prison Discipline, 335 • The Breakdown of Severity, 337 • Reformation of the Disciplinary System, 340

323

CONTENTS CHAPTEK X I V .

FACI C L A S S I F I C A T I O N OF T H E P R I S O N

POPULATION

344

Administrative Classifications, 345 • Classification and Building, 347 • The Insane, 349 • The Feeble-minded, 350 • The Tubercular, 351 • The Venereally Diseased, 352 The Sex Pervert, 353 • The Drug Addict, 354 • The Aged and Crippled, 355 • The General Prison Population, 355 • Maximum, Medium, and Minimum Security Buildings, 357 XV.

P R I S O N LABOR A N D I N D U S T R Y

364

The Lease System, 366 The Contract System, 366 • The Piece-Price System, 373 • The Public-Account System, 375 • The Objectives of Prison Industry, 377 • Classification and Labor, 380 • Farm Labor, 382 • Road Building and Reforestation, 384 • The State-Use System, 385 Wages, 389 • A New Program, 390 XVI.

EDUCATION IN THE PRISON

402

The Failure of the Community, 402 • Objectives of Prison Education, 404 • The Educational Program at McNeil Island, 407 • Prison Libraries, 408 • Educational Resources, 409 • Prison Education at San Quentin, 410 • The Prison Community, 412 • Group Activity, 414 XVII.

T H E P R I S O N AS A N O R G A N I Z E D C O M M U N I T Y

417

The Government, 417 • The Executive Board, 419 • The Courts, 421 • Discipline, 427 • The Changed Point of View, 431 XVIII.

PAROLE

434

Methods of Releasing Prisoners, 436 • The Nature of Parole, 438 Prerequisites of Good Parole, 441 • Politics and Parole, 445 • Supervision of Parolees, 449 • Parole Personnel, 450 XIX.

PROBATION

4SS

The Purpose of Probation, 455 • The Effects of Imprisonment, 455 • The Method of Probation, 458 • Origin of the Probation Movement, 460 • Differences in State Probation Laws, 460 • Selection of Subjects for Probation, 462 • Appointment of Probation Officers, 464 • Centralization of Supervision, 465 • The Measure of Success in Probation, 466 • Failures in Probation, 470 • The Cost of Probation, 471 X X .

W H A T OF T H E F U T U R E ?

474

I N D E X OF AUTHORS

479

I N D E X OF S U B J E C T S

483

INTRODUCTION

Y o u CANNOT deal with human situations unless you comprehend the humanity in the situations, and you cannot get to grips with social problems unless you realize the whole social background out of which they arise. No partial or one-sided expertness will suffice. Aside from certain purely technical issues there is no important aspect of human life that can be separated from the rest and studied exclusively by itself. T h a t is why any narrow specialism in the social sciences is self-defeating. Y o u cannot understand the religion of a group without knowing its economic conditions, and you cannot understand its economic conditions without knowing also its mores. Y o u cannot understand how a country is really governed unless you know how its citizens live and think, nor can you understand its laws unless you know also its customs. For a long time I have felt that most of the textbooks in the various social sciences were not sufficiently grounded in a recognition of this essential interdependence, that they tended overmuch to detach the aspect with which they respectively dealt, whether economic, political, legal, educational, or social-psychological, from the totality that gave it birth and meaning. Particularly it seemed to me that the whole question of the derivation or the causation of social phenomena was unapproachable apart from this recognition. Y e t unless it can deal with the causal relations between events and conditions a science is limited to mere description or schematic classification. How little we learn about government if we confine ourselves merely to an account of its institutional mechanisms! How little we get from history if it is no more for us than a record of the succession of events! The time seemed to have come when a series of textbooks should be definitely planned from a larger and more revealing approach. Modern realistic researches in economics, law, politics, sociology, were showing ever more fully the intimate interactions of the phenomena accredited to these different subjects. From the various organizations of the social sciences came proclamations of the need for co-operative and non-departmentalized studies. T o many it appeared that the training of students was too narrowly confined by departmental frontiers. In view of these conditions the writer undertook to edit a new series under the sponsorship of Ginn and Company. Just as he was about

xii

CRIME AND THE COMMUNITY

to make the first arrangements the manuscript of the present work came into his hands. It met the requirements of the series so admirably that it is now put forward as the initial volume. It is a forerunner of the series as a whole, since the planned volumes will not commence appearing for another year. T h e subject is one that offers a remarkable illustration of the need for comprehensive and balanced treatment. There have been numerous "explanations" of crime, ranging from defective glands to defective religious training. T h e anatomist, the psychoanalyst, the psychiatrist, the intelligence-tester, the economist, the political scientist, the educationalist, have all come forward with theories centering around their own specialisms. On all such partial theories Professor Tannenbaum delivers a devastating attack. But this merely clears the ground for his own constructive treatment. He shows, in a word, that crime is a function of society, and that the amount, the character, and the direction of crime are precipitates of the entire life of the community. " T h e amount of crime in the United States responds to all the factors and forces in American life. . . . It is just as much one aspect of America as is baseball or divorce or anti-union industry or unemployment or Fords or movies. T h e relationship between the criminal and the community is a total relationship and not a partial o n e " (p. 25). W e are all social animals, criminals and law-abiding citizens alike, and even our "antisocial" conduct is socially determined. In the fullest sense Professor Tannenbaum offers us the sociology of American crime. Of course he does not deny that particular conditions and excitants determine whether this individual or that will become a ball-player. But no one would explain the prevalence of baseball in America by citing the opportunities and the physical qualities of the particular players, and it would seem scarcely more reasonable to explain in any such manner the prevalence of the gang in the American scene. Professor Tannenbaum does explain where and how gangs arise, but he succeeds in doing so only because he refuses to attribute crime and delinquency to some specific factor residing in the criminal or delinquent. Crime arises as a nascent relationship between the individual and the whole society within which he lives. It is a relationship perfectly understandable without resort to any theories of abnormality. It is as natural a relationship as is law-abidingness—given the conditions under which it arises. And, significantly enough, many of the conditions that differentiate the criminal response from that of the law-abiding are unwittingly created b y the law-abiding themselves. T h i s point is cogently

INTRODUCTION

xiii

brought out by Professor Tannenbaum. A special case is the manner in which enforced morality evokes new forms of criminality. If the crime situation is a reflection of the total social situation, this does not mean that in explaining crime we can content ourselves with a purely general description of the society in which it occurs. Our explanation, instead of being general, becomes all the more definite. We must show how the social factors co-operate to produce this specific result. This Professor Tannenbaum has done. He explains the peculiar qualities and attributes of crime in the United States. He shows the significance of elements in the situation hitherto insufficiently stressed, such as the mode in which delinquency is dramatized for the young delinquent. He helps us to understand particular facts that at first sight seem merely amazing or even grotesque. B y studying his book we learn why out of 257 gang murders in the years 1923-1929 inclusive there has not been a single conviction, why a chief of police becomes entangled with criminal organizations, why headquarters detectives force criminals to stay criminal, why members of congress attend the funerals of gangsters, why a New York magistrate was heavily in debt to a notorious gambler, why the vice squad in New Y o r k City " f r a m e d " innocent victims under a charge of prostitution. And in explaining these extraordinary and in themselves outrageous facts there is no resort to any abnormal human traits, whether of individual, stock, or race, but only to human nature itself, responsive for good or ill to the whole conjuncture of presented conditions. That is why I wish this book could be read by every social worker, every educationalist, and every magistrate. I should like to see it also in the hands of those people outside the United States who are amazed at certain phenomena of American crime, amazed without understanding. This book shows how the criminal is made and how he is then treated; only incidentally does it deal with the question of prevention and control. But it has many implications for this final question. The position taken by the author raises one very important practical issue. Having shown that crime in America (as elsewhere) is a product of the total situation, he concludes that "not until the American community changes profoundly will the character and the amount of crime in it also change" (p. 49). I suggest that the student carefully examine this conclusion and consider where it leads. There is here involved the whole intricate question of the relation between cause and cure. It can hardly mean that specific reforms here or there, such as better training schools for delinquents or better prison-systems, would not improve the

xiv

CRIME AND THE COMMUNITY

crime situation. But it does mean this at least, that without radical changes both of institutions and of mores, without thoroughgoing reform of such deep-seated conditions as those that in the great cities link politics to crime, no great advance can be made. In conclusion, I may be permitted a word about the author. Frank Tannenbaum is a professor of history, an authority on Latin America, a writer on a variety of subjects. He has an intimate and personal knowledge of American life on several levels, including certain strata of the population to which professors of history are not usually able to penetrate. He knows what prisons are like and what gangsters are like and what political bosses are like, not by reading about them merely but by direct contact with them. It is this breadth of experience that made possible a book which is no less readable and illuminating than it is scholarly. R M MacIV£r Columbia University

Part I THE CRIMINAL PATTERN

CHAPTER

I • Point of View

1. The Search for a Scapegoat Criminology has been the happy hunting ground for all kinds of theories. The dramatic quality of criminal behavior has challenged attention and called forth explanation. Its very deviations from the accepted and approved have required elucidation and judgment. The community has ever had to do something about the criminal, and theory served as a justification of social policy as well as an interpretation of its genesis. From age to age the conduct of society toward the criminal has differed in accordance with the underlying assumption of the prevailing theory. The outstanding characteristic of all criminological discussion has been the assumption that there was a qualitative difference between the nature of the criminal and that of the noncriminal. This probably was inevitable; to find the unsocial and the social identical in nature was to strain all the evidence. All things done despite being forbidden and condemned were done by the unsocial or criminal. They were addicted to the vice which the virtuous shunned. The criminal or unsocial committed theft, robbery, arson, murder; they showed regard for neither God nor man. The conduct of these deviates illustrated the perversity of their beings. This contrast was sharpened by the prepossession of social theorists with the overshadowing conflict between absolute good and absolute evil. This battle, personified by God on one side and the Devil on the other, made the distinction clear and judgment easy. Regardless of the changes that criminological theory has undergone, this underlying contrast has persisted under one or another cover, under one or another disguise. The terminology has changed, but the original idea has persisted. "Good" may have become translated into "normal," and "evil" may have come to be described as "abnormal" in one of its many current variants, but, after all, the change in fundamental attitude is not great. The contrast in absolutes still pervades the air of criminological discussion. During the Middle Ages the notion that evil action was proof of possession by the Evil One seemed both obvious and consistent with the

4

C R I M E AND THE C O M M U N I T Y

entire accepted view of the world and its ways, and was descriptive of the motives of human conduct. This belief has long persisted, and even today it has not entirely disappeared from the common judgment of ordinary folk when they condemn the evil-doer. In fact the idea of possession found its way into the North Carolina State Constitution as late as 1862. " T o know the right but still the wrong to pursue proceeds from a perverse will brought about by the seductions of the evil one." The " R a tionalism" of the seventeenth and eighteenth centuries, their belief in reason, their notions of equality, their rejection of theological theories of causation as a means of explaining human conduct, led them to describe evil-doing in terms of choice rather than in terms of "possession" or "seduction" by the evil one. All men were assumed to be both reasonable and wise about their own interests, and if one chose to do evil it was because of the pleasure it would bring him. Evil-doing became evil choice for the sake of the pleasure it provided. Like the earlier doctrine, the explanation was consistent with a current view of the universe. This theory from the period of the French Revolution, generally identified for criminology with the name of the Italian criminologist, Beccaria, has had a profound influence upon both law and practice in dealing with the criminal. Our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free moral agent, confronted with a choice between doing right and doing wrong, and choosing freely to do wrong.1 As it affected children and the insane this view broke down, but its influence upon our legal system has been very great indeed. T h e development of modern science, the growing practice of measurement, the science of statistics, the development of the theory of evolution, and especially the growth of the sciences of anthropology and psychology have sharply influenced criminological discussion. T h e controversies which these new additions to social theory have aroused have dealt, in criminology, mainly with how the good were to be distinguished from the evil. "Possession" and "seduction" had given w a y to the " r a t i o n a l " choice to do evil. This in turn was to give way to a series of other explanations. T h e Positive School of Criminology, so called as distinguished from the Classical (which is the name given to the theories that arose out of the French Revolution), found the evidence of the distinction between the good and the evil in the physical characteristics of the criminal. Lombroso, who is the recognized father 1Roscoe

Pound, Criminal Justice in America, pp. 33-34. New Y o r k , 1Q30.

POINT OF

S

VIEW

of the Positive School of Criminology, has had a wide and persistent influence upon attitudes toward the criminal. His view has been described as "the proposition that a man's mode of feeling and the actual conduct of his life are in turn determined by and find expression in his physical constitution,'" and that these constitutions were so variable that the "assassins, ravishers, incendiaries, and thieves could be distinguished according to physical characteristics not only from the general population, but also from each other." 2 T h e various constitutions were in a measure anthropological throwbacks: Such a man as this is a reversion to an old type savage, and was born by accident in the wrong century. He would have had a sufficient scope for his bloodthirsty propensities and been in harmony with his environment in a barbaric age or at the present day in certain parts of Africa. 3

These throwbacks were differentiated by projecting ears, thin beard, insensitiveness to pain, projecting frontal eminences, large jaws, square and protruding chin, and a number of other items. For our purpose here it is sufficient to point out that the proof of criminality now became a matter of external evidence. It seems incredible, although it is true, that in 1890 Havelock Ellis said in his book on the criminal, " T h e greater number of tattooed criminals are naturally found among recidivists and instinctive criminals, especially those who have committed crimes against the person," 4 as if being tattooed were one of the evidences of criminality in addition to purely physical deformities. T h e fact that this adduced knowledge about the criminal is merely a proof of a somewhat naive anthropology and physiology as well as an uninformed description of primitive people is beside the point. T h e fact that it had wide acceptance and that remnants of it are still to be seen in circles seriously dedicated to the study of the criminal is important. 5 The development of psychology on one hand, and the annihilating attack upon the naive "morphological" theories of the Lombrosian school by Goring on the other hand, shifted the ground once more from external to internal evidence of criminality. In the meantime the general sophistication had reduced "the devil" and "possession" to a series ! H a n s K u r e l l a , Cesare

Lombroso,

A Modern

Man of Science,

p. 18. L o n d o n , 1 9 1 1 .

2Morris

Ploscowe, " S o m e Causative Factors in C r i m i n a l i t y , " N a t i o n a l C o m m i s s i o n o n L a w Observance and Enforcement, N o . 13, Report on the Causes of Crime, Vol. I, p. 21. W a s h i n g t o n , D . C., 1931. 3 P h i l i p Archibald Parsons, Crime and the Criminal, p. 41 ( q u o t i n g H a c k T u k e , Case of Congenital Moral Defect). N e w Y o r k , 1926. «Havelock Ellis, The Criminal, p. 194. L o n d o n , F i f t h E d i t i o n , 1 9 1 0 . 5

See C h a p t e r V I I I for evidence of the persistence of such v i e w s .

6

CRIME AND THE COMMUNITY

of concepts that served the old purpose under a new name or names. T h e new way of identifying criminality was now more fully aided by a statistical technique almost as naive as the older morphological and anthropological technique had been. Instead of measuring heads, ears, nose and arm length, it now became the rule to measure intelligence. Apart from the fact that a definition of "intelligence" was no more easily formulated than one of "possession," the game of classifying criminals according to psychological terminology went merrily on for a number of years. It has since been shown that, whatever "intelligence" is, it has no demonstrated relationship to crime, and it has also been shown that the "intelligence" testers seem to test their particular techniques against each other rather than the thing they are testing. But the fact remains that the proof adduced was used to "identify the criminal" in terms as naive and full of faith as those of the older evidence, as, for example, when Dr. Henry H. Goddard said, " I t is no longer to be denied that the greatest single cause of delinquency and crime is low-grade mentality, much of it within the limits of feeblemindedness." 1 Criticisms of this view since about 1915 have reduced its pretensions, but have not entirely eliminated its hold upon either theorists or practitioners in their dealing with the criminal. Under the influence of recent psychological thought a new body of theories was developed to describe not the mental but the emotional deficiency of the criminal. A new series of tests and devices were brought into play to show that the criminal was not normal. T h e difference between the older concepts of " g o o d " and " e v i l " has now become one between " n o r m a l " and "abnormal," and the insistence that the criminal must exhibit the evidence of his shortcomings has been shifted from intellectual to psychiatric phenomena. W e are not concerned here with a review of criminological theory, which will be found in Chapter V I I I . It is sufficient to say here that the theories advanced by the endocrinologists who have asserted that criminals "are either of subnormal mentality or of faulty mental or nervous constitution," 2 or of the eugenists who claim that eugenics "supplies the most effective and permanent solution to the problems . . . of combating disease, disability, defectiveness, degeneracy, delinquency, vice and crime," 3 have no greater validity than the theories they attempt to supersede. 1

H e n r y H . G o d d a r d , Human Efficiency and Levels of Intelligence, p. 73. Princeton, 1920. G. Schlapp and E d w a r d H . Smith, The New Criminology, p. 119. N e w Y o r k , 1928.

2Max

3Report

of the President of the American Eugenics Society, June 26, 1926, p. 18.

POINT OF

VIEW

7

T h e criminological theorist has tended to set off the criminal from the rest of the population in terms that would make the difference qualitative. 1 These attitudes have something of absolutism, and their imputation to the man of the physical or psychological deficiency that shows how he is distinguished from his fellows has something of the definiteness and inevitableness of the theories of damnation and predestination. T h e impact of the idea of " l a w " in the physical sciences has in this branch of the social sciences led to a crude assumption of definiteness, separateness, difference, in terms so absolute as to be final. T h e imputation of physical or psychic abnormality has this crude "scientific" basis, that it derives from measurement, testing, calculation. It permits the use of statistical tables and mathematical formulae. The fact that the qualities measured are intangible, that the traits examined may be irrelevant, has not prevented the process from finding wide acceptance and considerable acclaim, and in some instances even legislative sanction. The issue here, however, is not the adequacy of the method but rather the fact that all through criminological theory has run the notion of good and bad in the older days and " n o r m a l " and " a b n o r m a l " in the current period. In each period the criminal has been set off from his fellows. This was indicated by Professor Root when he said: N o n e is so repentant a sinner as to share the blame with the criminal.

If

w e can localize the blame in the individual w e can exact vengeance with precision and satisfaction. T h e more w e can make it appear that all the causes for delinquency have their origin within the individual victim the more w e m a y feel self-elation, the less danger there is of negative self-feeling. W r i t e r s of melodramas k n o w this full well. T h e villain, in order to make us get the full satisfaction out of our positive self-feeling, must be bad with everyone else on the stage oozing goodness from every pore. H e must be b a d in spite of u s ; it is highly disconcerting to h a v e h i m one of us. 2

The underlying causes may be deeper than that: they may lie in the inability to accept deviation from the "normal." T h e projection of the idea of normal or good is merely the passing of a moral judgment upon our own habits and way of life. T h e deviate who is a communist, a pacifist, a crank, a criminal, challenges our scheme of habits, institutions, and values. And unless we exclude him and set him apart from 1 The

environmentalist school does not fall within this classification. T . Root, Jr., A Psychological and Educational Survey of 1916 Prisoners in the Western Penitentiary of Pennsylvania, p. 10. 1927. 2 William

8

CRIME AND THE COMMUNITY

the group, the whole structure of our orderly life goes to pieces. It is not that we do not wish to be identified with him: we cannot be identified with him and keep our own world from being shattered about us. T h e question of values is fundamental. Just because we appreciate the habits, ways, and institutions by which we live, we seem driven to defame and annihilate those activities and individuals whose behavior challenges and repudiates all we live by. Under these circumstances the theories of the criminologists are understandable. T h e y have imputed an evil nature to the evil-doer, whatever the terms upon which that nature was postulated—possession by the devil, deliberate evildoing, physical stigmata, intellectual inferiority, emotional instability, poor inheritance, glandular unbalance. In each case we had a good explanation for the "unsocial" behavior of the individual, and it left unchallenged our institutional set-up, both theoretic and practical.

2. The Meaning o j Behavior In each case these theories rest upon the individual criminal, almost as if he were living in a vacuum and his nature were full-blown from the beginning. Even the mildest of the current theories assumes that the criminal is an unsocial creature because he cannot " a d j u s t " to society. Parsons represents this point of view when he says that the findings "seem to indicate that the bulk of crime is committed by persons who are unable to adjust themselves to society with a sufficient degree of success to meet the requirements of the law." 1 T h e facts seem to point to just the opposite conclusion. The criminal is a social human being, he is adjusted, he is not necessarily any of the things that have been imputed to him. Instead of being unadjusted he may be quite adjusted to his group, and instead of being " u n s o c i a l " he may show all of the characteristics we identify as social in members of other groups. The New Y o r k Crime Commission says, " H e is adjusted to his own social group and violently objects to any social therapy that would make him maladjusted to it." 2 Crime is a maladjustment that arises out of the conflict between a group and the community at large. The issue involved is not whether an individual is maladjusted to society, but the fact that his adjustment 1 Parsons, op. cit., p. 46. •State of New Y o r k . Report of the Crime Commission, 1930. Legislative Document (1930) No. 98, p. 243.

POINT OF VIEW

9

to a special group makes him maladjusted to the large society because the group he fits into is at war with society. The difficulty with the older theory is that it assumed that crime was largely an individual matter and could be dealt with when the individual was dealt with. Instead, most delinquencies are committed in groups; most criminals live in, operate with, and are supported by groups. We must face the question of how that group grew up into a conflict group and of how the individual became adjusted to that group rather than to some other group in society. The study of the individual in terms of his special physical or psychical idiosyncrasies would have as much bearing on the question why he became a member of a criminal group as it would on the question why he joined the K u Klux Klan, was a member of a lynching bee, joined the I. W. W., became a member of the Communist or Socialist party, joined the Seventh D a y Adventists or the Catholic Church, took to vegetarianism, or became a loyal Republican. T h e point is that a person's peculiar physical or psychic characteristics may have little bearing on the group with which he is in adjustment. The question is not how a criminal is distinguished in his nature from a non-criminal, but how he happened to be drawn into a criminal group and why that criminal group developed that peculiar position of conflict with the rest of society. The important facts, therefore, are to be sought in his behavior history. Criminal behavior originates as part of the random movement of children in a world of adults, a world with attitudes and organized institutions that stamp and define the activities of the little children. The career of the criminal is a selective process of growth within that environment, and the adult criminal is the product and summation of a series of continued activities and experience. T h e adult criminal is usually the delinquent child grown up. The delinquent child is all too frequently " t h e truant of yesterday." 1 The truant is the school child who found extra-curricular activities more appealing and less burdensome than curricular ones. The step from the child who is a behavior problem in school to the truant is a natural one; so, too, is the step from truancy to delinquency, and that from delinquency to crime. In the growth of his career is to be found the important agency of the gang. But "the majority of gangs develop from the spontaneous play-group." 2 1 State of New York. Report of the Crime Commission, 1927. Legislative Document (1927) No. 94, p. 285. 'Frederic M. Thrasher, The Gang, p. 29. Chicago, 1927.

CRIME AND THE

10

COMMUNITY

T h e p l a y g r o u p b e c o m e s a g a n g t h r o u g h c o m i n g into c o n f l i c t w i t h s o m e element in the e n v i r o n m e n t . A single illustration will i n d i c a t e the process. The beginning of the gang came when the group developed an enmity toward two Greeks who owned a fruit store on the opposite comer. T h e boys began to steal fruit on a small scale. Finally they attempted to carry off a large quantity of oranges and bananas which were displayed on the sidewalks, but the Greeks gave chase. This was the signal for a general attack, and the fruit was used as ammunition. T h e gang had a good start from this episode. 1 B u t even a f t e r the g a n g h a s been f o r m e d , in its e a r l y s t a g e s its activities are not n e c e s s a r i l y

delinquent and

non-

delinquent a c t i v i t i e s m a y h a v e the s a m e m e a n i n g f o r the children.

delinquent,

and

"We

w o u l d g a t h e r w o o d together, g o s w i m m i n g , or r o b the J e w s on T w e l f t h S t r e e t . " 2 T h e conflict m a y arise f r o m p l a y . We did all kinds of dirty tricks for fun. We'd see a sign "Please keep the street clean," but we'd tear it down and say, " W e don't feel like keeping it clean." One day we put a can of glue in the engine of a man's car. We would always tear things down. T h a t would make us laugh and feel good, to have so many jokes.' O r the j o k e s m a y b e other w a y s of a n n o y i n g people.

" T h e i r greatest

f u n consists in p l a y i n g t a g on p o r c h e s a n d h a v i n g people c h a s e t h e m . ' " O r it m a y b e m o r e serious a n n o y a n c e : " s u c h a s t h r o w i n g stones at w i n d o w s of h o m e s a n d ridiculing persons in t h e street w h o are k n o w n as 'odd c h a r a c t e r s . ' ' "

E v e n a m u r d e r m a y arise o u t of t h e o r d i n a r y

b y - p l a y of t w o g a n g s of y o u n g b o y s in r i v a l r y . D e y picked on us for two years, but even den we wouldn't a shot i f " Stinky " — t h e big guy and the leader of the Elstons—hadn't jumped out of his dugout in a coal pile Saturday and waved a long bayonet wid a red flag on one end of it and an American flag upside down on de udder and dared us to come over de tracks." O n c e the g a n g h a s been d e v e l o p e d , it b e c o m e s a serious c o m p e t i t o r w i t h other institutions as a controlling f a c t o r in the b o y ' s life.

The

i m p o r t a n c e of the g a n g lies in its b e i n g the o n l y social w o r l d of

the

b o y ' s own a g e a n d , in a sense, of his o w n c r e a t i o n . A l l other agencies 2 Ibid., p. 36. Thrasher, op. cit., p. 29. York Crime Commission, 1927 Report, p. 371. 'Ibid., p. 370. •Thrasher, op. cit., p. 180.

1

4 New

3

Ibid., pp. 94-95.

POINT OF VIEW

11

belong to elders; the gang belongs to the boy. Whether he is a leader or just one of the pack, whether his assigned rank has been won b y force or ingenuity or represents a lack of superior force or ingenuity, once that rank is established the child accepts it and abides by the rules for changing it. Children are peculiarly sensitive to suggestion. It is known that y o u n g people and people in general have little resistance to suggestion, that fashions of thought and fashions of dress spread rapidly through conversation and imitation, and that a n y form of behavior m a y be normalized through conversation and participation of numbers. 1

In the boy's gang, conversation, gossip, approval, participation, and repetition will make any kind of behavior whatsoever normal. The gang is important, because the reaction of others is the source of the greater part of the individual's conduct. Conduct is learned in the sense that it is a response to a situation made by other people. T h e smile, the frown, approval and disapproval, praise and condemnation, companionship, affection, dislike, instruments, opportunities, denial of opportunities, are all elements at hand for the individual and are the source of his behavior. It is not essential that the whole world approve; it is essential that the limited world to which the individual is attached approve. What other people think is the more important because what they think will express itself in what they do and in what they s a y ; and in what they do or say, in the way they look, in the sound of their voices, in the physical posture that they assume, the individual finds the stimuli that call out those particular attitudes that will bring the needed and desired approval from his immediate face-to-face companionship. It is here that we must look for the origin of criminal behavior. It is here, largely, that the roots of conduct difficulties are to be found. What one learns to do, one does if it is approved by the world in which one lives. T h a t world is the very limited world which approves of the conduct one has learned to seek approval for. The group, once it becomes conscious of itself as an entity, tends to feed and fortify itself in terms of its own values. The contrast with the rest of the world merely strengthens the group, and war merely enhances its resistance. 1 William I. Thomas and Dorothy S. Thomas, The Child m America, p. 164. New York, 1928.

12

CRIME AND THE COMMUNITY

3. The Group and the

Community

Once the differentiation of the gang has taken place, it becomes a competitor for the child's allegiance, and wins in a certain number of cases. The growing child in a modern large city is exposed to a variety of conflicting stimuli, interests, and patterns. Not only are there differences between the family, the school, the church, and the street gang, but the family itself may be representative of a series of differences between parents and children, between father and mother, between older and younger children. The pattern is uneven, the demands are contradictory. What is approved in one place is derided and condemned in another. Behavior is a matter of choice as to whose approval you want. And whose approval you want may be determined by such invisible and subtle influences as whom you like, who has given you pleasure, who has commended you. Conflicting demands for the growing child's loyalty are the source of much of the difficulty. The fact that the gang wins in many instances does not reflect upon the children. It reflects upon the other agencies that are competing for the child's adherence. Of a dozen children who have come into conflict with the other groups in the community and have given their loyalty to the gang instead, the victory of the gang may have had a different cause in each case. The family by its internal weakness may have been a contributory factor. The father or mother or an older brother may have been delinquent, or there may have been sharp conflict of opinions and attitudes in the family, or constant bickering and incompatibility between the parents, or the father may have been dead and the mother forced away from home so that the children were left unsupervised, or an ignorant and poverty-stricken mother may have encouraged the child to bring in food or money whether earned or stolen, or the father may have been a drunkard and given to seriously mistreating the child and breaking down the loyalty and unity which are essential to the slow maturation of systematic habit formation. In these and innumerable other examples that might be cited of family inadequacy we have a source for the acceptance by the child of his playmates and gang affiliates as a substitute for the home. Gang membership under these circumstances may be a perfectly natural reaction and a seeking for fun, contentment, and status.

POINT OF

13

VIEW

T h a t the fun may take on delinquent forms is another matter, and depends on the opportunities for such uses of leisure within the environment as make delinquency an alternative, or by-product, of gang activity. If the family itself is a unit and well co-ordinated, it still may contribute to delinquency by forcing upon the child an incompatible pattern. The dislike of the pattern, again, may arise from many different reasons, none of which are in themselves evidence of moral turpitude or psychical deficiency on the part of the child. The objections to going to school may arise from lack of good hearing, from poor eyesight, from undernourishment, from being left-handed, from dislike for the teacher because of favoritism, from being taken away from playmates because the family moves, from lack of interest in intellectual pursuits, from being either too big or too small for the grade, from undue competition with other children within the family, from a desire for excitement which the school does not provide, from having poor clothes and being ashamed to go to school, from a too rapid maturing, from a too slow development, from losing a grade because of illness, or from any number of other causes. T h a t is, even in a " g o o d " family, where moral standards are rigid, habits regular, ambitions high, there may still be adequate cause for the child to fall out of the pattern of the family interest because there are insufficient insight and sympathy for his needs, with the consequent conversion of the difficulty into conflict. Truancy may in some degree have its roots in physical defect. " T h u s , only 2.9 per cent of normal school children were suffering from malnutrition, whereas 26.2 per cent of truants were undernourished. Seven and three-tenths per cent of normal school children had defective vision, whereas 20.1 per cent of truants were so handicapped. Forty-nine and fourtenths per cent of normal children had defective teeth, whereas 91.2 per cent of truants had bad teeth." 1

The physical defect may not be a direct cause of truancy, but it may contribute to that disgust with the school which may be directly responsible for truancy. "These are children in whom a definite attitude of dislike or even of disgust toward school has been built up." 2 If the deviation could be compensated by having its need met, then the conflict might never arise and the competition of the gang would not be serious. But ordinarily it is not met. *New Y o r k Crime Commission, 1927 Report, p. 287.

2

Ibid., p. 28s.

14

CRIME AND THE

COMMUNITY

Under our system of compulsory education we force into schools many, many children who would otherwise have been kept, or at least allowed to stay, at home—the "delicate" child, the excessively shy child, the child with some obvious defect, the child who does not care especially for books or activities that appeal only to the intellect. Now we make all of these children attend school, but we have not yet adapted our educational system to their needs.1 T h e difficulties of the child w h o is forced out of step in the school system, either through poor health or through l a c k of aptitude for scholastic endeavor, are met b y the school authorities in terms of conflict, discipline, and tradition. This group has been regarded by school teachers and administrators as more or less of an enigma, because these children stand out so decidedly from their playmates as being free from the domination of school discipline. Threats, punishment, hearings at the Bureau of Attendance, pleas of parents, frequently even commitments to the truant school do not seem to be successful in breaking up this attitude of unyielding resistance to compulsory schooling. It is because the truant is usually such an enigma to the average school administrator that he arouses so much ire. The response of the school administrator to the problem of truancy takes very little cognizance of the specific factors which have entered into the individual case of truancy. His response is in terms of an established tradition. 2 Another source of failure of the other agencies within the community to fulfill the demands made upon them for winning the l o y a l t y and cooperation of the child who ultimately becomes delinquent m a y have no direct relation to the family or to the school, b u t be the results of the environment.

T h e family m a y live in such crowded quarters as to

force the child into the street to such an extent that street life takes the place of family life. T h e f a m i l y m a y be living in a neighborhood where houses of prostitution are l o c a t e d ; where gangsters g a t h e r ; where there is a great deal of perversion of one sort or another; where street pilfering is a local custom; where there is hostility to the p o l i c e ; where there is race friction and w a r f a r e ; where the children, without the knowledge of their parents, m a y find means of employment in illicit w a y s such as acting as procurers for prostitutes or as messengers and gobetweens for criminals; where they can observe the possession of guns, the taking of d o p e ; where they can hear all sorts of tales and observe 1 White-Williams Foundation : Five Years' Review for the Period Ending December 31, 1921, p. 8. ' N e w Y o r k Crime Commission, 1927 Report, p. 283.

POINT OF VIEW

IS

practices or be invited to participate in practices, or become conscious of habits, attitudes, morals, which are entirely in conflict with the teaching, habits, and points of view of the family in which they live. And because the family under these conditions may be an inadequate instrument for the purpose of supervising and co-ordinating all the child's activities, the family may lose the battle for the imposition of its own standards just because there was a lack of time, energy, space, for the doing of the things that needed to be done or for the provision of the room that the children required for the development of their normal play life. The activities which are taken as a substitute for those provided by the community may be innocent enough in themselves. The New York Crime Commission found that the activities of truants, as a rule, were not delinquent activities: the children flew pigeons, went fishing, rode in the subway and the "L," went to the movies, went to a park, shot craps, collected junk, went to work, peddled fruit, went auto riding with older boys, hitched on the backs of wagons, delivered wet wash, and stole lead pipe for sale. These activities, we see, were for the children an adequate substitute for the school which they did not particularly enjoy; instead of doing required things which were not particularly attractive to them—they almost all liked mechanical shop work but were generally indifferent to purely intellectual endeavor— these children turned to the endless opportunities for adventure in the city streets. Here they are free of physical restraint, can avoid any authority they do not wish to acknowledge; may use their wits and legs and voices for objectives they themselves set. But these and other activities carried on during truancy or in spare time are carried on in a group. The gang tends to dominate the children's activities as soon as conflict arises. And conflict arises frequently over issues much less conspicuous than stealing. In the congested neighborhoods where most of the young delinquent gangs arise, the elements of conflict between the old and the young are natural and difficult to avoid. The old want peace, security, quiet, routine, protection of property. The young want just the opposite: chiefly room, noise, running about, unorganized mischief, fighting, shouting, yelling. The crowded homes provide no place for the children, and therefore force them into the streets for play. Not only the homes are congested, but the streets are, too. In densely populated sections children engaged in even the mildest activities seem in the way. The absence of open spaces on the one hand and the conflict of interests on the other provide many occasions for opposition, dispute, and difference.

16

CRIME AND THE

COMMUNITY

Gang KK. This group of 12 boys, ranging in age from 12 to 15 years, were all American-bom. They were fond of athletics and had made a habit of playing hand-ball against the rear wall of a moving picture theatre. Their yells disturbed the patrons of the theatre, and the management frequently ordered them away from the premises. They left, but returned. Finally, in anger, the movie proprietor called a patrol wagon and had them loaded into it. They were arraigned in the Children's Court, but discharged. None of these boys had previous court records. They consisted partly of boys who lived in the immediate neighborhood, and partly of former residents, who still kept up their intimacy with the group. 1 Here is an illustration of the difficulty in its simplest form. It is no crime to play handball against a wall. N o r is it a crime to yell and shout while the playing proceeds. In fact, the shouting, yelling, rough-housing, are an integral part of the game. It would be no game at all if this loud verbalization could not go on. T h e patrons are watching a picture and the noise disturbs them. T h e owner w a n t s to keep his customers. A natural conflict has arisen, and no compromise is possible: the children cannot promise not to p l a y or shout, the patrons cannot help being annoyed. T h e alternative is a different place to play.

B u t a different place m a y not

exist; there m a y be only one available wall and ground in the neighborhood. T h e children are arrested. A definition of evil has been created, a court record has been set up. T h e beginning of a career m a y h a v e been marked. A differentiation has now been created which would never have arisen if the interests of the children were as highly considered as those of the patrons of the theater or of the owner.

T h e children needed

space and a w a l l ; these should have been provided in some form that would not involve the children with the court, the police, the patrol wagon, with which they had had no previous contact. T h e process of gang formation m a y be stimulated also b y the natural efforts of parents to maintain their own social standards in a continual process of classification, of separation of the " g o o d " and the " b a d , " the right and the wrong.

Parents carry their attitudes over to

their children b y talk, gossip, approval, condemnation, punishment, and reward. A system of values, judgments, differentiations, and classifications

makes itself felt v e r y early in the children's lives, and m a y

have any number of grounds: religious, racial, economic, social, professional, and occupational. T h e more differentiation in the community, the greater the heterogeneity of the population, the less internal unity 1

State of N e w Y o r k . R e p o r t of the C r i m e Commission, 1928, p. 620. Legislative D o c u -

ment (1928) N o . 23.

POINT OF VIEW

17

and sympathy, the greater the ease with which gangs are formed. In a sense, therefore, the gangs derive from the natural conflict that exists within the community itself. Gangs are not merely spatial relationships—blocks, neighborhoods —but they are social relationships. The Irish gangs, the Jewish gangs, the Italian gangs, the Polish gangs, the gangs of English-speaking and non-English-speaking members of the community, are all evidence of the range of conflict within which the individual finds an outlet, recognition, and companionship.

4. A Matter of

Definition

In the conflict between the young delinquent and the community there develop two opposing definitions of the situation. In the beginning the definition of the situation by the young delinquent may be in the form of play, adventure, excitement, interest, mischief, fun. Breaking windows, annoying people, running around porches, climbing over roofs, stealing from pushcarts, playing truant—all are items of play, adventure, excitement. To the community, however, these activities may and often do take on the form of a nuisance, evil, delinquency, with the demand for control, admonition, chastisement, punishment, police court, truant school. This conflict over the situation is one that arises out of a divergence of values. As the problem develops, the situation gradually becomes redefined. The attitude of the community hardens definitely into a demand for suppression. There is a gradual shift from the definition of the specific acts as evil to a definition of the individual as evil, so that all his acts come to be looked upon with suspicion. In the process of identification his companions, hang-outs, play, speech, income, all his conduct, the personality itself, become subject to scrutiny and question. From the community's point of view, the individual who used to do bad and mischievous things has now become a bad and unredeemable human being. From the individual's point of view there has taken place a similar change. He has gone slowly from a sense of grievance and injustice, of being unduly mistreated and punished, to a recognition that the definition of him as a human being is different from that of other boys in his neighborhood, his school, street, community. This recognition on his part becomes a process of self-identification and integration with the group which shares his activities. It becomes, in part, a process of rationalization; in part, a simple response to a specialized type of stimulus. The young delinquent becomes bad because he is

18

CRIME AND THE COMMUNITY

defined as bad and because he is not believed if he is good. There is a persistent demand for consistency in character. The community cannot deal with people whom it cannot define. Reputation is this sort of public definition. Once it is established, then unconsciously all agencies combine to maintain this definition even when they apparently and consciously attempt to deny their own implicit judgment. Early in his career, then, the incipient professional criminal develops an attitude of antagonism to the regulated orderly life that he is required to lead. This attitude is hardened and crystallized by opposition. The conflict becomes a clash of wills. And experience too often has proved that threats, punishments, beatings, commitments to institutions, abuse and defamation of one sort or another, are of no avail. Punishment breaks down against the child's stubbornness. What has happened is that the child has been defined as an "incorrigible" both by his contacts and by himself, and an attempt at a direct breaking down of will generally fails. The child meets the situation in the only way he can, by defiance and escape—physical escape if possible, or emotional escape by derision, anger, contempt, hatred, disgust, tantrums, destructiveness, and physical violence. The response of the child is just as intelligent and intelligible as that of the schools, of the authorities. They have taken a simple problem, the lack of fitness of an institution to a particular child's needs, and have made a moral issue out of it with values outside the child's ken. It takes on the form of war between two wills, and the longer the war lasts, the more certainly does the child become incorrigible. The child will not yield because he cannot yield—his nature requires other channels for pleasant growth; the school system or society will not yield because it does not see the issues involved as between the incompatibility of an institution and a child's needs, sometimes physical needs, and will instead attempt to twist the child's nature to the institution with that consequent distortion of the child which makes an unsocial career inevitable. The verbalization of the conflict in terms of evil, delinquency, incorrigibility, badness, arrest, force, punishment, stupidity, lack of intelligence, truancy, criminality, gives the innocent divergence of the child from the straight road a meaning that it did not have in the beginning and makes its continuance in these same terms by so much the more inevitable. The only important fact, when the issue arises of the boy's inability to acquire the specific habits which organized institutions attempt to impose upon him, is that this conflict becomes the occasion for him to

POINT OF VIEW

19

acquire another series of habits, interests, and attitudes as a substitute. These habits become as effective in motivating and guiding conduct as would have been those which the orderly routine social institutions attempted to impose had they been acquired. This conflict gives the gang its hold, because the gang provides escape, security, pleasure, and peace. The gang also gives room for the motor activity which plays a large role in a child's life. The attempt to break up the gang by force merely strengthens it. The arrest of the children has consequences undreamed-of, for several reasons. First, only some of the children are caught though all may be equally guilty. There is a great deal more delinquency practiced and committed by the young groups than comes to the attention of the police. The boy arrested, therefore, is singled out in specialized treatment. This boy, no more guilty than the other members of his group, discovers a world of which he knew little. His arrest suddenly precipitates a series of institutions, attitudes, and experiences which the other children do not share. For this boy there suddenly appear the police, the patrol wagon, the police station, the other delinquents and criminals found in the police lock-ups, the court with all its agencies such as bailiffs, clerks, bondsmen, lawyers, probation officers. There are bars, cells, handcuffs, criminals. He is questioned, examined, tested, investigated. His history is gone into, his family is brought into court. Witnesses make their appearance. The boy, no different from the rest of his gang, suddenly becomes the center of a major drama in which all sorts of unexpected characters play important roles. And what is it all about ? about the accustomed things his gang has done and has been doing for a long time. In this entirely new world he is made conscious of himself as a different human being than he was before his arrest. He becomes classified as a thief, perhaps, and the entire world about him has suddenly become a different place for him and will remain different for the rest of his life.

5. The Dramatization of Evil The first dramatization of the " e v i l " which separates the child out of his group for specialized treatment plays a greater role in making the criminal than perhaps any other experience. It cannot be too often emphasized that for the child the whole situation has become different. He now lives in a different world. He has been tagged. A new and hitherto non-existent environment has been precipitated out for him. The process of making the criminal, therefore, is a process of tagging,

20

C R I M E AND T H E COMMUNITY

defining, identifying, segregating, describing, emphasizing, making conscious and self-conscious; it becomes a way of stimulating, suggesting, emphasizing, and evoking the very traits that are complained of. If the theory of relation of response to stimulus has any meaning, the entire process of dealing with the young delinquent is mischievous in so far as it identifies him to himself or to the environment as a delinquent person. The person becomes the thing he is described as being. Nor does it seem to matter whether the valuation is made by those who would punish or by those who would reform. In either case the emphasis is upon the conduct that is disapproved of. The parents or the policeman, the older brother or the court, the probation officer or the juvenile institution, in so far as they rest upon the thing complained of, rest upon a false ground. Their very enthusiasm defeats their aim. The harder they work to reform the evil, the greater the evil grows under their hands. The persistent suggestion, with whatever good intentions, works mischief, because it leads to bringing out the bad behavior that it would suppress. The way out is through a refusal to dramatize the evil. The less said about it the better. The more said about something else, still better. The hard-drinker who keeps thinking of not drinking is doing what he can to initiate the acts which lead to drinking. He is starting with the stimulus to .his habit. To succeed he must find some positive interest or line of action which will inhibit the drinking series and which by instituting another course of action will bring him to his desired end.1 The dramatization of the evil therefore tends to precipitate the conflict situation which was first created through some innocent maladjustment. The child's isolation forces him into companionship with other children similarly defined, and the gang becomes his means of escape, his security. The life of the gang gives it special mores, and the attack by the community upon these mores merely overemphasizes the conflict already in existence, and makes it the source of a new series of experiences that lead directly to a criminal career. In dealing with the delinquent, the criminal, therefore, the important thing to remember is that we are dealing with a human being who is responding normally to the demands, stimuli, approval, expectancy, of the group with whom he is associated. We are dealing not with an individual but with a group. ' J o h n Dewey, Human

Nature and Conduct,

p. 35. New Y o r k , 1922.

POINT OF

VIEW

21

In a study of 6,000 instances of stealing, with reference to the number of boys involved, it was found that in 9 0 4 per cent of the cases two or more boys were known to have been involved in the act and were consequently brought to court. Only 9.6 per cent of all the cases were acts of single individuals. Since this study was based upon the number of boys brought to court, and since in many cases not all of the boys involved were caught and brought to court, it is certain that the percentage of group stealing is therefore even greater than 90.4 per cent. It cannot be doubted that delinquency, particularly stealing, almost invariably involves two or more persons. 1

That group may be a small gang, a gang of children just growing up, a gang of young " t o u g h s " of nineteen or twenty, or a gang of older criminals of thirty. If we are not dealing with a gang we may be dealing with a family. And if we are not dealing with either of these especially we may be dealing with a community. In practice all these f a c t o r s — t h e family, the gang, and the c o m m u n i t y — m a y be important in the development and the maintenance of that attitude towards the world which makes a criminal career a normal, an accepted and approved w a y of life. Direct attack upon the individual in these circumstances is a dubious undertaking. B y the time the individual has become a criminal his habits have been so shaped that we have a fairly integrated character whose whole career is in tune with the peculiar bit of the environment for which he has developed the behavior and habits that cause him to be apprehended. In theory isolation from that group ought to provide occasion for change in the individual's habit structure. It might, if the individual were transplanted to a group whose values and activities had the approval of the wider community, and in which the newcomer might hope to gain full acceptance eventually. But until now isolation has meant the grouping in close confinement of persons whose strongest common bond has been their socially disapproved delinquent conduct. Thus the attack cannot be made without reference to group life. T h e attack must be on the whole group; for only by changing its attitudes and ideals, interests and habits, can the stimuli which it exerts upon the individual be changed. Punishment as retribution has failed to reform, that is, to change character. If the individual can be made aware of a different set of values for which he may receive approval, then we may be on the road to a change in his character. But such a change of values involves a change in stimuli, which means that the criminal's social world must be changed before he can be changed. 1 Clifford R. Shaw and Earl D. Myers, " T h e Juvenile Delinquent," The Illinois Survey, pp. 662-663. Chicago, 1929.

Crime

22

CRIME AND THE

COMMUNITY

6. The Scapegoat is a Snare and a Delusion T h e p o i n t of v i e w here d e v e l o p e d r e j e c t s all a s s u m p t i o n s t h a t w o u l d i m p u t e c r i m e t o the i n d i v i d u a l in the sense t h a t a p e r s o n a l s h o r t c o m i n g of the offender is the cause of the unsocial b e h a v i o r .

T h e assumption

t h a t crime is c a u s e d b y a n y sort of i n f e r i o r i t y , p h y s i o l o g i c a l or p s y c h o logical, is here c o m p l e t e l y a n d u n e q u i v o c a l l y r e p u d i a t e d . T h i s of course does not m e a n t h a t m o r p h o l o g i c a l or p s y c h o l o g i c a l t e c h n i q u e s do not h a v e v a l u e in dealing w i t h t h e i n d i v i d u a l .

It merely

m e a n s that t h e y h a v e no g r e a t e r v a l u e in the s t u d y of c r i m i n o l o g y t h a n t h e y w o u l d h a v e in the s t u d y of a n y p r o f e s s i o n . I f a p o o r I Q is a b a d b e g i n n i n g for a career in medicine, it is also a p o o r b e g i n n i n g for a career in crime. If the p s y c h i a t r i s t c a n t e s t i f y t h a t a p s y c h o p a t h will m a k e an irritable doctor he can p r o v e the s a m e f o r the c r i m i n a l .

B u t he c a n

p r o v e no more. T h e criminal differs f r o m the rest of his f e l l o w s o n l y in t h e sense t h a t h e h a s learned t o respond t o the stimuli of a v e r y s m a l l a n d specialized g r o u p ; b u t t h a t g r o u p m u s t exist or t h e c r i m i n a l c o u l d n o t exist. I n t h a t he is like t h e m a s s of m e n , l i v i n g a c e r t a i n k i n d of life w i t h the k i n d of c o m p a n i o n s that m a k e t h a t l i f e possible. T h i s explanation of c r i m i n a l b e h a v i o r is m e a n t t o a p p l y t o t h o s e w h o m o r e or less consistently p u r s u e the c r i m i n a l c a r e e r . I t d o e s n o t necess a r i l y p r e s u m e t o describe t h e a c c i d e n t a l c r i m i n a l or t h e m a n

who

c o m m i t s a crime of passion. H e r e p e r h a p s the theories t h a t w o u l d s e e k the cause of crime in the i n d i v i d u a l m a y h a v e g r e a t e r a p p l i c a t i o n t h a n in a t t e m p t i n g to deal w i t h those w h o f o l l o w a l i f e of c r i m e .

B u t even

in the a c c i d e n t a l criminal there is a s t r o n g p r e s u m p t i o n t h a t t h e a c c i d e n t is the o u t c o m e of a h a b i t situation.

A n y habit tends to have a back-

g r o u n d of social conditioning. A man with the habit of giving way to anger may show his habit by a murderous attack upon some one who has offended. His act is nonetheless due to habit because it occurs only once in his life. T h e essence of habit is an acquired predisposition to ways or modes of response, not to particular acts except as, under special conditions, these express a way of behaving. Habit means special sensitiveness or accessibility to certain classes of stimuli, standing predilections and aversions, rather than bare recurrence of specific acts. It means will. 1 In other w o r d s , p e r h a p s the a c c i d e n t a l c r i m i n a l also is t o b e e x p l a i n e d in terms such as w e used in discussing the p r o f e s s i o n a l c r i m i n a l . ' D e w e y , op. cit., p. 42,

23

POINT OF VIEW BIBLIOGRAPHY American A c a d e m y of Medicine. Physical to the annual meeting in Minneapolis, sylvania, 1914.

Bases of Crime, a symposium contributed 1Q13. M a c k Printing Co., Easton, Penn-

American Eugenics Society. Report of the President, June 26, 1926. N e w H a v e n , 1926. BECCARIA, CESARE. An Essay on Crimes and Punishments. London, 1767. BERMAN, LOUIS. The Glands Regulating Personality. T h e Macmillan C o m p a n y , N e w Y o r k , 1928. CANTOR, NATHANIEL. Crime, Criminals and Criminal Justice. Henry Holt and Company, N e w Y o r k , 1932. D E QUIROS, B. Modern Theories of Criminality. ( M o d e r n Criminal Science Series.) Little, Brown & Company, Boston, 1 9 1 1 . DEWEY, JOHN. Human Nature and Conduct. H e n r y Holt and Company, N e w Y o r k , 1922.

ELLIS, HAVELOCK. The Criminal.

Walter Scott Publishing Company, Ltd., London,

1890.

FERRI, E. Criminal Sociology. ( M o d e m Criminal Science Series.) Little, B r o w n & Company, Boston, 1917. GAROFALO, RAFFAELLE. Criminology. (Modern Criminal Science Series.) Little, Brown & Company, Boston, 1914. GAULT, ROBERT H. Criminology. D . C . H e a t h and C o m p a n y , Boston, 1932. GIARDINI, GIOVANNI. " A Report on the Italian C o n v i c t . " A Psychological and Educational Survey of IQI6 Prisoners in the Western Penitentiary of Pennsylvania. T h e Board of Trustees of the Western Penitentiary, Pittsburgh, 1927. GILLIN, JOHN L. Criminology and Penology. T h e Century Company, N e w Y o r k , 1926. GLUECX,

SHELDON,

and

GLUECK,

ELEANOR

T.

500

Criminal

Careers.

Alfred

A.

K n o p f , N e w Y o r k , 1930. 500 Delinquent Women. A l f r e d A. K n o p f , N e w Y o r k , 1934. 1000 Juvenile Delinquents. Harvard University Press, Cambridge, 1934. GODDARD, HENRY H. Feeble-Mindedness, its Causes and Consequences. The Macmillan Company, N e w Y o r k , 1914. Human Efficiency and Levels Princeton, 1920. GORING, CHARLES. The English 1913GRIMBERG, LEIZER E . Emotion HALPERN,

of Intelligence.

Convict.

Y o r k , 1934. KURELLA, H. Cesare Lombroso,

His M a j e s t y ' s Stationery Office, London,

and Delinquency.

IRVING ; S T A N I S L A U S , J . ; a n d

A Modern

University of Princeton Press,

BOTEIN,

Brentano's, N e w Y o r k , 1928. B.

The

Man of Science.

Slum

and

Crime.

New

Rebman, Ltd., London,

1911.

LICHTENSTEIN, PERRY M . A Doctor Studies Crime. D . V a n Nostrand C o m p a n y , New Y o r k , 1934. LOMBROSO, CESARE. Crime, its Causes and Remedies. ( M o d e m Criminal Science Series.) Little. Brown & Company, Boston, 1 9 1 1 . MOLEY, RAYMOND. Our Criminal Courts. Minton, Balch & Co., N e w Y o r k , 1920. MORRIS, ALBERT. Criminology. Longmans, Green & Co., N e w Y o r k , 1934. N e w Y o r k State. R e p o r t s of the N e w Y o r k Crime Commission. Legislative D o c u ments.

24

CRIME AND THE COMMUNITY

PARSONS, PHILIP ARCHIBALD. Crime and the Criminal. Alfred A. Knopf, New York, 1926. PLOSCOWE, MORRIS. "Some Causative Factors in Criminality." National Commission on Law Observance and Enforcement, No. 13. Report on the Causes of Crime, Vol. I. Government Printing Office, Washington, D. C., 1 9 3 1 . POUND, ROSCOE. Criminal Justice in America. Henry Holt and Company, New York, 1930. SALEILLES, RAYMOND. The Individualization of Punishment. (Modern Criminal Science Series.) Little, Brown & Company, Boston, 1913. SCHLAPP, MAX G., and SMITH, EDWARD H . The New

New York, 1928. SHAW, CLIPFORD R. Delinquency 1934-

Criminology.

Boni & Liveright,

Areas. The University of Chicago Press, Chicago,

SHAW, CLIFFORD R . , and M C K A Y , HENRY D .

" S o c i a l F a c t o r s in J u v e n i l e Delin-

quency." National Commission on Law Observance and Enforcement, No. 13, Report on the Causes of Crime, Vol. II. Government Printing Office, Washington, D. C., 1931. SUTHERLAND, EDWIN H. Principles of Criminology. J . B. Lippincott Company, Philadelphia, 1934. THRASHER, FREDERIC M. The Gang. The University of Chicago Press, Chicago, 1927. WHITE, WILLIAM A. Crime and Criminals. Farrar & Rinehart, New York, 1933. White-Williams Foundation : Five Years' Review for the Period Ending December 31, 1921.

CHAPTER

II • Social Forces in the

Development of Crime

1. Crime and Conflict American criminal activity must be related to the total social complex. T h e United States has as much crime as it generates. T h e criminals are themselves part of the community in its deeper sense, and are as much its products as are its philosophers, poets, inventors, business men and scientists, reformers and saints. This is a basic fact that we must accept. If we would change the amount of crime in the community, we must change the community. The criminal is not a symptom merely, he is a product, he is of the very bone and fiber of the community itself. T h e community has given him not merely his ideals and ends, not merely his relationships with the world that make the kind of career he lives a possibility. T h e community has given him his methods too, whether these be g r a f t , political pull, or the use of a machine gun. T h e distinction between the criminal and the community drawn in sharp c o n t r a s t — a distinction between good and evil—is a false distinction and obscures the issue. T h e amount of crime in the United States responds to all the factors and forces in American life—it is one way of describing our politics, our police, our civil and judicial administration, our immigration policy, our industrial and social conditions, our education, our morals, our religion, our manners, our culture. I t is just as much one aspect of America as is baseball or divorce or anti-union industry or unemployment or F o r d s or movies. T h e relationship between the criminal and the community is a total relationship and not a partial one. He is the product of the sum of our institutions and the product of a selective series of influences within them, as are the best and the worst of the non-criminal population. T h e community does not set out to make a saint, and yet it does occasionally. It does not set out to make a criminal, and yet it does, more than occasionally. If, therefore, we are to understand what the forces are that make for so much crime in the United States, we must investigate the forces as well as the criminal. It is by manipulating these forces that we may

26

CRIME AND THE COMMUNITY

ultimately achieve a control and redirection of the energy that goes into criminal conduct. What, then, are the forces that make the criminal? The genesis of crime in the United States is to be found in the allpervasive conflicts that have characterized its history. These conflicts reflect the dynamic quality of American civilization. A glance at the growth of the American community reveals unexampled speed in expansion and growth. Both the settlement of the nation and the increase in numbers were charged with friction. The rapid growth of our industrialism and the congregation of immigrants from widely different parts of the world in close contact produced a species of irritation that embraced all phases of life—religious, political, social, economic, cultural. No appreciation of the growth of American urban life is possible without recognition of the fact that the development of cities (and crime is largely an urban phenomenon) was charged with conflict. The strife was between races, between religions, between political groups, between labor and capital, between new and older immigrants, between the ways of the parents and the ways of the children, between neighborhoods. Manners, customs, language, dress—all of life was thrown into a seething caldron. The conquest, colonization, and settlement of the continent and the rapid filling of large areas by a heterogeneous population were characterized by a process of disintegration of old mores, by individualization, competition, self-assertion, by a process of carving individual careers against a fluctuating and shifting background where fortune and failure followed swiftly upon each other in the lives of individuals, of communities, of sections of the country. Instability, insecurity, movement, change, flux, have been the rule of American life. This flux has been pervasive. It has included custom, rule, habit, and habituation. The rapid and large migration to the United States, one of the greatest movements of population in the history of the white race, was a migration of families rather than of organized tribes or races. It was characterized by the immigration of the individual rather than of the family. This fact of personal migration, personal tearing away from a settled and organized world where tradition, law, and custom were age-old, to join restless millions of human beings in a new world where all (including the basic tool of human relationships, language) was different, has had the profound effect of increasing and emphasizing the individualizing process of life in the United States. It has tended to break down ties between families, to make communities temporary habitats for the individual. The settler was a bird of passage.

SOCIAL FORCES IN THE DEVELOPMENT OF CRIME

27

The breaking down of stability has been and has remained perhaps the most important and the most significant feature of the life of the individual in the United States, and the process has tended to make all law and order a matter of artificial and exterior restraint. Law and order became matters of the outside—foreign, exterior rules. The laws were an attempt to impose a rule upon disorderly movements and processes instead of being an expression of the community's orderly unity of habit. The growth of our large cities has been a process of disintegration of older forms, individualization, and the fusion of temporary culture groups in conflict with each other. The virtues of the pioneer persisted even in the urban community because life in the urban community, in spite of its physical compactness, lacked the kind of unity, cohesion, common interest, and common culture which pervaded the stable community. The individualism of the American process extended from the conquest of the frontier to the filling of the country and the settling of the large urban communities —except that it was made more pronounced by the lack of personal stability, the rapid change in the character of the communities, and the lack of common mores and unity in the component elements. The personal migration of the individual who came without family increased the shifting and unstable nature of his relationship with the world about him. And where the individual had a family the situation was but slightly improved, because the family itself was in a world of shifting ideals, attitudes, and economic and social relations. The attempts of the multifarious religious, social, fraternal, economic, and professional groups to harness the individual, to root him in some stable form, have mitigated the disintegrating effect of personal and economic instability; but they have not replaced the older pattern. It is in this environment of friction, conflict, and disintegration that our present type of crime and criminal activity has developed, and has set itself in the matrix of American urban politics. The peculiar quality of American life, therefore, has been individualism, initiative, self-dependence, conflict, and striving. The answer to this phenomenon is success. Success is the alternative to submergence, isolation, deprivation, failure. In the American urban scene success has taken the place which stability held in the older and simpler culture. In the settled community where life is regulated by tradition and law and custom, where the future is known, where rule governs because it is the way of the fathers, the pattern of life is inevitable and makes success an unnecessary virtue; it has no survival value. In the American

28

CRIME AND THE COMMUNITY

scene success is the alternative to instability. It is the means of securing those things that come as a matter of course to the individual born into a stable and regulated world: status, a living, possessions, satisfactions. The pervasive striving for success in the American scene is therefore the counterpart of instability, insecurity. It is upon this food, this spiritual fare, that American individualism has grown strong as a counterpoise to the weakness inherent in the very basis of its existence. The individual had to succeed or be lost, forgotten, thrown upon the scrap heap. The immigrant who could not make a fortune or secure a niche for himself had to face poverty, isolation, neglect, unemployment, and possibly scorn and abuse. Therefore friction was the essence of life. Upon this friction American life has grown strong and powerful. It has sharpened those virtues of ingenuity that make personal achievement conspicuous. Against such a background of experience law is a feeble instrument indeed, and custom has no roots and covers only the most elementary relationships. It is this environment that covers as a surrounding atmosphere the activities which have shaped the growth of all social forms in the United States, including that of the criminal. Before the Civil War immigration to the United States was less rapid than in the early twentieth century, and the growth of stable communities kept pace, more or less, with the growth of population. There was also a greater homogeneity in the immigrant groups, more similarity in language and cultural background. The slower rate of settlement made possible the development of more stable rural communities with their peculiar virtues and controls. The restless spirits in that period went West in small groups and established in their turn such communities as they had left behind them. The new country, while breeding the virtues of the pioneer, gave them an outlet in an uninhabited and unsettled area, and they ripened readily into a philosophy of individualism. Governmental restraint was at a minimum and had little ideological support. The pioneers wanted freedom; they wished to settle their own problems in the rough and ready methods that came their way. The use of immediate violence against the occasional offender was not seriously frowned upon, and the small community gave rise to a body of controls that made the newly developing mores effective. Laws in the new country were comparatively few, and life, while hard, was simple. There was a genuine neighborhood feeling, and it served those ends which in a more complicated community have been sought by legal machinery. The general character of the community came to have many elements of stability in it, and for practical purposes

SOCIAL FORCES I N T H E D E V E L O P M E N T O F C R I M E

29

this c o m m u n i t y was not unlike those E u r o p e a n communities t h a t m a y b e described as static. I n a static c o m m u n i t y the individual lives in a single set of mores. All of life is integrated in c o n f o r m i t y t o a c o m m o n rule t h a t finds expression in the c h u r c h , the law, a n d t h e morals, m a n n e r s , a n d p r e j udices of the c o m m u n i t y . I n this sense t h e individual lives a life i n t e g r a t e d with the c o m m u n i t y as a whole. T h e small stable c o m m u n i t y gives every m e m b e r in it a s h a r e in s h a p i n g t h e c h a r a c t e r of all the o t h e r s . G r o u p j u d g m e n t a n d g r o u p c o m m e n d a t i o n or criticism a r e universal p h e n o m e n a which all s h a r e a n d in which all p a r t i c i p a t e . T h e teacher, the minister, the s h o e m a k e r , t h e m e r c h a n t , the b a n k e r , all s h a r e in the responsibility a n d all s h a r e in the pleasure or discomfiture t h a t comes f r o m good or b a d b e h a v i o r of a n y m e m b e r in the comm u n i t y . A m a n ' s p r i v a t e a n d public c h a r a c t e r a r e cut f r o m c o m m o n cloth a n d s h a p e d to a common model. T h e mere smallness of the comm u n i t y t e n d s to m a k e differences in m o r a l s t a n d a r d s u n b e a r a b l e a n d c o n f o r m i t y a n d u n i f o r m i t y almost inevitable. T h e space is too small to tolerate g r e a t diversity. T h e entire c o m m u n i t y is a face-to-face comm u n i t y ; people live in public, in t h e eye of their neighbors all t h e time, and the limits of tolerance are well-known a n d firmly executed. D e a n P o u n d h a s expressed this general p o i n t of view b y s a y i n g : In our nineteenth-century polity the home was a chief reliance. The household was a unit, social, economic, and legal. Domestic discipline was legally recognized and was a reality. Such things as one of the household haling another into court were tolerated only in extreme cases, and were repugnant to the settled policy of the law. Likewise neighborhood opinion was effective. Although the neighborhood had ceased to be a legal unit since the Middle Ages, it was a social and economic unit, and the pressure exerted upon the individual neighbor was strong. Above all, organized religion included the great majority of men in well knit groups. Religious training was all but universal, and the pressure of the church group and its opinion of things which were done and things which were not done was exerted upon every one. Obviously, the hold of all these is much less in the urban, industrial society of today. The household is no longer an economic unit and there are little more than vestiges of its legal unity. There is a radical change in the policy of the law as to legal proceedings by children against parents, and domestic discipline is relaxed to the point of extinction. The neighborhood is no longer an economic unit. Large numbers of persons are carried in and out of business centers every day. to live their economic lives in one place, with one set of associates, and their social lives elsewhere with different associates. One's everyday relationships are not necessarily with his neighbors. A dweller in an apartment house is as

30

C R I M E AND T H E

COMMUNITY

likely not to know them as the dweller in the rural community of our formative era was unable to escape knowing them. Thus we must rely on the law and the policeman for much which was once in the province of neighborhood opinion. As to organized religion, its lessened hold is manifest. This complete change in the background of social control involves much that may easily be attributed to ineffectiveness of criminal justice, and yet means only that it is called on to do the whole work, where once it shared its task with other agencies and was invoked, not for every occasion, but exceptionally. 1

T h e stability of our small towns and dominant rural environment was destroyed by the development of industrialism and the rapid growth of our cities. T h e rapid development of industrialism imposed a series of new and complex problems upon the community. T h e earlier legal structure was adjusted to, and had grown out of, a semi-rural environment. I t was competent to deal with the problems of such an environment. There were no complicating factors of rapid movement, strange populations, and corrupt politics. T h e law was the expression of a uniform economic and social structure and was adjusted to operate in an environment of neighbors, where people knew each other and families were acquainted. Life was simple, economic interests were fairly common, and organized crime in our sense was unknown. Suddenly this entire basis of relationship was destroyed. Industrial development imposed upon the older legal arrangements a series of problems which they could not properly meet and for which they were not prepared. In other words, the homogeneous rural communities presupposed by the legal institutions devised in the latter part of the eighteenth century and the first decades of the nineteenth century, had ceased to be the dominant type. A wholly new type of community had arisen, of which our legal institutions had had no experience. In these communities the character and environment of crime are new and the demands upon enforcing agencies, upon police, upon adjudication, and upon penal treatment are Quite out of the experience of those who laid out the lines of our legal development and gave shape to our criminal law and procedure. 2

Industrialism has sharpened the significance of the isolated individual. T h e family unit has broken down. T h e children become independent of their parents at a much earlier date than they used to. Industrialism has even had the effect of increasing the independence of the wife, who ' P o u n d , op. cit., pp. 13-15. Ibid., p. 21.

2

SOCIAL F O R C E S I N T H E D E V E L O P M E N T O F C R I M E

31

may be able to earn her own livelihood. It has tended further to scatter the family both in space and in diversity of experience. The members of the same family may live thousands of miles apart, or if they live under the same roof they may seek different occupations and interests, associate with people unknown to other members of the family. Thus the unifying force of common experience and common interests has been dissipated. The problems of juvenile delinquency and family relations, which in the older law had no special agencies, have so multiplied in number and have become so serious in character that in many cases they have special institutions provided for dealing with them; the juvenile court and the court of family relations are both attempts to meet the problems that have come to the surface as results of modern industrial civilization. They are both evidences of increased individualization.

2. The Growth of Law The answer to the complexity produced by the new industrialism was an attempt to secure order by an increase in the number of laws. Out of one hundred thousand persons arrested in Chicago in a recent year, more than one half were held for the violation of legal precepts which did not exist twenty-five years before. Of the inmates of the prisons of the Federal Government at the present time, 76 per cent are there for crimes which were not crimes fifteen years ago. 1

Industrialism has forced upon the urban community sharp differences of group interests which have called for a great body of law and which have provided a new series of possible unsocial and illegal types of behavior hitherto unknown. An illustration of this change is to be found in the conflict between producer and consumer. The pure food laws, hitherto unknown and unnecessary, have become essential in an industrial community. The laws governing factory inspection indicate that the conflict between the manufacturer and the laborer has created a series of problems entirely new. The crowding together of hundreds or thousands of laboring people in narrow space has raised problems of sanitation, fire hazard, and morals which had to be met by society through the enactment of new legislation and new enforcing agencies. Similar illustrations arise in the body of laws governing the professions. 1

George W. Kirchwey, "The Prison's Place in the Penal System," The Annals of the American Academy of Political and Social Science, Vol. 157 (September, 1931), p. i j .

32

CRIME AND THE

COMMUNITY

W h a t has happened in transportation is a good example of the impact of industrialism upon the law. Since 1 8 4 0 the law has had to adapt itself to the changes brought about by the railroads, by electric transportation, by the automobile and the airplane. T h e problems were new, their effect was unknown, and their impact upon the laws, both civil and criminal, has been profound. Each industrial change has created a new group with special interests, each new group has sought legislation that would protect it. The needs of the community as a whole and the interests of the groups affected were not always the same; the special groups armed themselves with lobbies and secured legislation which not infrequently conflicted with laws already on the statute books.

The

new laws added to the complexity, and raised problems of administration that were incommensurable with the traditions and habits of the community.

The problems were new, the laws frequently both new

and confusing, while the habits and attitudes had hung over from an older day and a simpler community. The result has been an attempt to meet the problem by further legislation.

W h a t has happened in the

matter of increased legislation is illustrated by Dean Pound: Rhode Island is by no means an extreme case. Relatively, penal legislation in Rhode Island is not voluminous. In California the Penal Code contains 1 6 1 6 sections, covering the same ground as Titles X X X I X , X L , and X L I of the General Statutes of Rhode Island of 1923, which contain in all 657 sections. In Illinois, the current edition of the statutes requires four volumes, each about as large as the single volume of the General Laws of Rhode Island for 1923. In Missouri the current edition of the statutes is in six volumes, in Ohio in seven volumes, in New York in eight volumes. In Missouri the total number of sections in the statute law of the state is (or at least was recently) 13,672. In Michigan it is, or was recently, 15,532. In Ohio it was recently 15,367. In the General Laws of Rhode Island for 1923, the whole number of sections is 6,786. T o take Rhode Island for an example, then, is very conservative. Taking this state for our example of what has been going on throughout the land, a comparison of penal legislation as it was one hundred years ago, as it was fifty years ago, and as it is today, will reveal much. In the Revised Public Laws of Rhode Island of 1822, the " A c t to Reform the Penal L a w s " defines fifty crimes. In the General Laws of 1923, in Title X X X I X , "Of Crimes and Punishment," the number has grown to two hundred and twelve. Thus there are now more than four times as many punishable offenses prescribed by the title on crimes as there were one hundred years ago, and there has been an increase of sixty per cent in this title in fifty years. But this is far from the whole story. Today the Title "Of Crimes and Punishment" does not contain half of the offenses that may be prosecuted by the state and

SOCIAL F O R C E S IN T H E D E V E L O P M E N T OF C R I M E

33

may be visited with fine or imprisonment, or both. One important new title in the General Laws of 1923, as compared with the General Statutes of 1872, is T i t l e X , " O f Labor and Industry." T h e following chapters in that title, each involving more than one penally sanctioned offense, to be prosecuted by the state, are significant of relatively new conditions in American criminal j u s t i c e : Chapter 85, " O f Factory Inspection," Chapter 89, " O f Sanitary Accommodations in Factories," Chapter 92, " O f Payments to Employees for Personal Injuries Received in the Course of their Employment, and of the Prevention of Such Injuries," Chapter 93, " O f the Protection of Employees during the Erection of Buildings," Chapter 94, " O f the Inspection of and Fixing a Standard for the Construction of Boilers." Again, in 1872 there were twenty chapters in T i t l e X I V , " O f Internal Police." In 1923 that title has expanded into three: X V , " O f Internal Police," X V I , " O f the Public Health," and X V I I , " O f Protection from Fire." T h e old title " O f Internal Police" now has thirty-four chapters, and the new titles have eighteen chapters and seven chapters respectively. T h u s in this connection alone there are fifty-nine chapters where fifty years ago there were but twenty, and these new chapters provide fifty-four new offenses non-existent in 1872. Other significant new chapters in 1923, as compared with 1872, are : Chapter 98, " O f Motor Vehicles and the Operation thereof," Chapter 127, " O f Enforcing the Prohibition of Intoxicating Liquors for Beverage Purposes," Chapter 273, " O f the Regulation of the Sale of Securities," Chapter 3 1 1 , " O f Sales and Merchandise in B u l k , " Chapter 315, " O f Criminal Offenses Relative to Warehouse Receipts," Chapter 320, " O f Criminal Offenses Relative to Bills of L a d i n g . " This catalogue of chapters defining new crimes is very far from exhaustive. It is enough to say that when all are taken into account, the number of crimes for which one may be prosecuted in Rhode Island has very much more than doubled in fifty years, and has multiplied by eight in one hundred years. 1

3. Progress and Political

Corruption

T h e r a p i d g r o w t h of our i n d u s t r i a l c i t i e s r e - c r e a t e d the

American

s c e n e in a n i n c r e d i b l y short p e r i o d . A r e a s t h a t h a d no u r b a n p o p u l a t i o n a t all in 1 8 3 0 — l i k e C h i c a g o , D e t r o i t , C l e v e l a n d , a n d L o s h a v e g r o w n to b e m e t r o p o l i t a n c e n t e r s w i t h m i l l i o n s of

Angeles— inhabitants.

Older cities like N e w Y o r k and Philadelphia had sudden expansions and g r o w t h s t h a t w e r e u n p r e c e d e n t e d in their h i s t o r y .

I n the p e r i o d since

t h e C i v i l W a r , t h e r e f o r e , the u r b a n e n v i r o n m e n t h a s b e e n c o m p l e t e l y transformed. A l a r g e a n d i n c r e a s i n g p r o p o r t i o n of o u r p o p u l a t i o n m o v e d f r o m rural 'Pound, op. cit., pp. 15—17.

34

CRIME AND THE COMMUNITY

and semi-rural communities to the large cities. T h e second source of the growth of the cities was immigration. T h e discussion of the influence of immigration upon crime has tended to take the form of asking and answering the question of the direct participation of immigrants or their children in lawlessness. That, however, is a minor issue. T h e really significant fact is that the rapid flow of immigration to the United States had a great part in developing the institutional arrangements and group interests that made possible the peculiar environment within which urban crime develops. T h e large immigrant populations, helpless and friendless in a new environment, unacquainted with the democratic technique and indifferent to it, made for the growth of

machine-

controlled politics in our large cities. T h e situation was simple enough. T h e immigrants were helpless and needed favors, protection, justice. T h e large and powerful interests needed political power.

T h e inter-

mediary political henchmen gathered together the votes of the newlyenfranchised in return for past and future favors and garnered for themselves the available fruits of the arrangement. The politics of the large urban community thus came to be a gradation of favors. Large industrialists, traction magnates, public utility operators, contractors, and others sought for franchises, contracts, exemptions, prerogatives. T o secure them they achieved control of the city council; to control the city council they made alliances with the large and small politicians; these in turn, for favors granted, secured votes—honestly and dishonestly. T h e arrangement led from the powerful to the less powerful, and thence to those who had only a vote to bargain for a favor. I t became a highly organized system of patronage.

It rested upon an un-

informed and comparatively uninitiated voter, and was geared to extend protection to its own. American urban politics became flavored with corruption because the stakes were large, the tools pliant, the system profitable; because the ignorant and the helpless were willing to purchase little favors by what they had to sell—the vote. T h e building of such a political machine tended to make it an instrument of protection to its members, good and bad, honest and dishonest. T h e collection of graft tainted the giver and the receiver. The granting of large favors through manipulation of the political organization tended to make the machine and its instruments immune from the ordinary run of law. This system would have flourished less widely if an immigrant population had not been available for use in the building and strengthening of political fences. Professor Merriam has indicated this process in the following excerpt:

SOCIAL FORCES IN T H E D E V E L O P M E N T OF C R I M E

35

If you control the political situation, you may make friends finally with certain public utilities who may unite with you in an offensive and defensive alliance for the mutual interest of the high contracting parties. Whether the chicken came first or the egg, whether utility companies corrupt the city government or are the victims of blackmail and extortion is often disputed. Whatever the answer, the lords of the grafters will find opportunity for alliances with some of the great corporations who administer the quasi-public services of the city. These groups have ready money, avenues of publicity, a long arm in the business and labor world, a large interest in the community, astute and practical legal counsel, and they are not unaccustomed to intimate relations with public officials and politicians. They watch with solicitous care the elimination and election of aldermen and legislators, not neglecting mayors and corporation counsels. Nor are they unmindful of the many minor cogs in the machine, important for its final control. Their trustees and directors will be men of great business capacity and of high social and perhaps religious standing in the community. They are in a position to lend effective even if quiet support to a machine or an individual who is friendly, or to castigate those who are recalcitrant; to lend, even more than cash, legal advice, subtle counsel, a certain form of respectability in the circles of business where the oddities of politics might be explained in terms of exigencies of the utility situation, and where graft might take the politer form of extortion or blackmail or the sweeter term of "legal expense," without detail. To the public much of this may sound terrifying and fearful, but not so in certain regions of the Upper-world of business, where affairs are placed upon the hard and realistic basis of engineering. Obstacles must be swept aside at whatever cost in the interest of the greater efficiency, and among them are the obstacles of politics and the politicians whose whims and eccentricities and financial appetites are subjects of alternate irritation and amusement. 1 Therefore a partial answer to the question why we have had so much crime in the United States is to be found in the peculiar character of our urban politics, and urban politics are to be explained in part by the use the politicians have been able to make of the immigrant population. Their need for protection, defense, favor, on one hand; their ignorance and indifference to political methods on the other, have made them pliable instruments. On the political side, therefore, large-scale immigration was important in shaping the politics of our large cities, and this in time became an agency for protecting and perhaps even promoting certain types of criminal activity. 1

Charles Edward Merriam, Chicago, a More Intimate View of Urban Politics, pp. 52-53. New York, 1939. Reprinted by permission of tbe publishers, The Macmillan Company.

36

CRIME AND THE

COMMUNITY

4. Violence and Immigration Just as immigration has influenced the development of American politics, so it has contributed to the bitterness and violence that has marked our industrial strife. In fact, the conflict between capital and labor has been described as civil war. These civil wars have been waged for many generations; and pitched battles have been fought during the last fifty years throughout the nation, leaving in their train millions of crippled lives and thousands of broken enterprises. T h e wounds received in these battles go below the flesh. T h e y scarify the minds, the very souls of men, with rancor and hatred and fear that only time and years of peace can alleviate. 1

For our purposes the issue is the habit of violence which has been a residue from the conflicts between labor and capital. American industrial history has been marked by conflict. This conflict has on many occasions led to the bringing in of new immigrants to take the place of either native workers or older immigrants ; this happened, for instance, in the Colorado and Pennsylvania coal mines. It has also expressed itself in some industries—such as the New England textile m i l l s — i n the deliberate grouping under the same roof of as many divergent races as possible, to prevent communication and organization. T h e attempt to suppress labor organization or to defeat strikes led to the employment of small armies of guards; and during strikes violence on both sides was frequent. Systems of spying grew up. Special organization that supplied experienced strike-breakers as well as armed protection for those strikebreakers became a common practice. 2 T h e presence of foreign workers was exploited to justify fear on the part of the employer, prejudice on the part of the public. In many instances the struggle took on the form of strife between the native and the foreigner, a condition frequently fomented deliberately as a way of destroying labor organization and defeating strikes. In reply labor unions both of native and of foreign workers retaliated when they could in kind, b y violence. T h e history of more than one union shows the gradual development of a strong armed group in self-defense against the hired gangsters, guards, and deputies who were employed for the purpose of destroying the labor organizations. 1 R a d i o address b y D o n a l d R . printed v e r b a t i m in the New York 2 See testimony b e f o r e N a t i o n a l R e m i n g t o n - R a n d C o . , New York p. 1 3 ; N o v e m b e r 26, p . 34.

Richberg, " F r e e d o m and Security U n d e r the N . R . A . , " Times, A u g u s t 30, 1933, p. 4. L a b o r Relations B o a r d on use of a r m e d guards b y the Times, September 24, 1936, p . 8 ; N o v e m b e r 25, 1936,

SOCIAL FORCES IN THE DEVELOPMENT OF CRIME

37

The outcome of the situation, especially in certain large cities, has been the development of gangs who were definitely nurtured by the industrial disputes; who learned to live by violence, and developed those habits, attitudes, and relationships which make a return to earning a living by ordinary toil unacceptable; and who therefore have fastened themselves either on the unions or on the industries, or, failing these, have gone into racketeering of one sort or another. Wherever and whenever strong-arm work or " r o u g h s t u f f " is required either by the employer or the employee or by their respective organizations, the gang, particularly of the criminal type, is a ready instrument. Strikebreaking, intimidation, blackmail, acid or rock throwing, bombing, dynamiting, slugging, and similar methods, gang-executed, h a v e been used not only between capital and labor, but also between rival unions and between rival organizations of business enterprisers. . . . Criminal, political, and labor activities may all enter into the program of a single gang. 1

In a very real sense our gangs, racketeers, and criminal groups received an important (perhaps their most important) start and early support from the peculiarly bitter and violent character of our industrial disputes. And these disputes were so bitter and violent, in no small measure, because the industrial strife was intensified by cultural and racial conflicts. The result has been a growth and continued use of violence in labor disputes, and the maintenance of armed bands of gangsters who, in addition to being regular participants in the industrial struggle and beneficiaries of it, tend inevitably to garner what they can in other fields from their proclivities as strong-arm men, or to become just plain criminals. We may illustrate the situation by a few examples. A t Roosevelt, N e w J e r s e y , it was found b y the commission's investigators and later confirmed in court that the office of sheriff was virtually turned over to one J e r r y O'Brien, the proprietor of a so-called detective a g e n c y ; that he imported a number of men -of bad reputation and clothed them with the authority of deputies; and that on J a n u a r y 1 9 , 1 9 1 5 , these criminals, without provocation, wantonly shot and killed 2 men and wounded 1 7 others who were on strike against the American Agricultural Chemical Co., which paid and armed the deputies. ' T h r a s h e r , op. cit., p. 4 4 1 . I n J u n e , 1 9 3 6 , C o n g r e s s passed a n d t h e President signed a bill prohibiting transportation in interstate commerce of s t r i k e - b r e a k e r s w i t h criminal records (New

York

Times,

J u n e 20, 1 9 3 6 , p. 1 7 ) , as a result of t e s t i m o n y b e f o r e the Senate C o m -

mittee on L a b o r and E d u c a t i o n hearings on espionage a n d violence in i n d u s t r y in the spring of 1 9 3 6 . See New

York

Times,

A p r i l 1 7 , 1 9 3 6 , p. 2 ; S e p t e m b e r 2 3 , p . 2 6 ; S e p t e m b e r 24, p . 8 ;

S e p t e m b e r 2 5 , p. 8 ; S e p t e m b e r 26, p . 7 .

38

CRIME AND THE

COMMUNITY

Similarly, during the C a l u m e t , Michigan, strike, a b o u t 230 men were imported from detective agencies in eastern cities, 52 under p a y from the county board of supervisors, which w a s made up almost entirely of copper company officials. T h e actions of these men were so w a n t o n l y brutal t h a t they were censured b y the local judge, but they w e n t unchecked in their career of arrogant brutality, which culminated in their shooting, without provocation, into a house in which women and children were, killing t w o persons a n d wounding two others. T h e recent strike in B a y o n n e , N e w Jersey, threw more light on these armed guards. D u r i n g this strike one of the N e w Y o r k detective agencies furnished for the protection of the T i d e w a t e r Oil C o m p a n y ' s plant men w h o were so vicious and unreliable that the officials of the c o m p a n y themselves say that their presence was sufficient to incite a riot. T h e s e men shot without provocation at anyone or everyone w h o came within sight, and the killing of at least three strikers in B a y o n n e and the wounding of m a n y more is directly chargeable to these guards. T h e character of the men w h o make a specialty of this kind of employment has never been more f r a n k l y described than in the testimony of M r . L . M . Bowers, chairman of the board of directors of the C o l o r a d o Fuel and Iron C o m p a n y , w h o repeatedly referred to those in the employ of that company as " c u t t h r o a t s , " against whose character, he stated, he h a d frequently protested. According to the statement of Berghoff Bros. & W a d d e l l , w h o style themselves " l a b o r a d j u s t e r s " and w h o do a business of strike breaking and strike policing, there are countless men who follow this business at all times.

They

say they can put 10,000 armed men into the field inside of 72 hours. T h e fact that these men m a y have a criminal record is no deterrent to their being employed, and no check can be made on the men sent out b y these companies on hurry calls. W h e n the question of providing the bail for these men arose as a result of the killing of the strikers at B a y o n n e , the c o m p a n y attorney a c t u a l l y declined to furnish bail for them on the ground that they were thugs of w h o m the comp a n y knew nothing and that it would not be responsible for their appearance. 1

Other examples relating to this point could be cited. Here is one. [Senator Martine of N e w Jersey, a member of the investigating commission, is quoted.]

T h e n we heard stories, not from one witness, but a hundred,

of how gatling guns were loaded upon flat cars and freight cars and these trains were run at night through the mining villages where the strikers were with their families. T h e s e trains would run up to a village, usually a single street 1 U . S. Commission on Industrial Relations. Final Report and Testimony, Vol. I, PP- S&-57- Washington, D. C., igi6. P. L. Bergoff and his aides were called upon by the National Labor Relations Board to testify to similar activities in November, 1936. See New York Times, November 25, P- 13, and November 26, p. 34.

SOCIAL FORCES IN T H E D E V E L O P M E N T OF C R I M E

39

along the railroad track, the mine guards would fire a couple of rifle shots from the cars to incite the strikers to return the fire, and then the machine guns would be brought into action and the train would move the length of the village at a snail's pace, spitting bullets at the rate of 250 a minute, perforating the tents and shacks and mowing down and maiming and killing men and women and defenseless children. 1 T h e reply of labor to this phenomenon is violence, which grew up in self-defense and which has become an independent racket of its own. L a b o r racketeering, like other species of racketeering, is by no means restricted to Chicago. It merely started there back in 1 9 2 0 ; since t h e n — especially from 1925 on—labor dynamitings, assassinations, and arson incidents have been occurring with great frequency in New Y o r k City, Brooklyn, and other industrial centers where labor unions are meeting with strenuous opposition from the bosses. Violence and the fear of violence are sometimes the only methods that s a v e some unions from passing out. T h e following are a few bombings and other violent incidents in recent years for which no one was arrested and punished, but most of which were probably perpetrated by racketeers hired by men connected with labor unions, or b y union men themselves: On M a y 25, 1 9 2 5 , two company houses owned by the Glendale Gas and Coal Company, at Wheeling, West Virginia, occupied by non-union miners were bombed and wrecked during a miners' strike. On August 30, 1926, two bombs exploded in the factory of L . B . Levinson Clothing Company, at Lakewood, N e w Jersey, tearing off a wall, damaging machinery and smashing all the windows. T h e concern employed non-union operatives and the bombing occurred shortly after certain organizers failed to induce the company to hire organized men and women. On August 19, 1927, more than fifty non-union negro miners were hurled from their beds early in the morning by an explosion which wrecked two buildings in West Elizabeth, Pennsylvania. T h e miners were employed by the Pittsburgh Coal Co. There had been a strike a while before. On the same day, in Henderson, North Carolina, the home of M . E . Partin, who had walked out with eight hundred strikers in the Harriet Cotton Mills two weeks before but later returned to work, was dynamited. The blast tore off the back porch and shattered the windows of other homes in the vicinity. T h a t same night small explosions occurred in the yards of two other exstrikers in that town. 2 ' H a r r y W . Laidler, Boycotts

and the Labor

Struggle,

p. 299. N e w Y o r k , 1 9 1 3 .

See also

charges of labor racketeering in connection w i t h the murder of N o r m a n R e d w o o d , N e w Y o r k building-trades labor leader. Neiv 2

L o u i s A d a m i c , Dynamite,

York

Times,

pp. 3 3 1 - 3 3 2 .

M a r c h 2, 1 9 3 7 , p. 1 ; M a r c h 6, p. 3 4 .

New York, 1931.

40

CRIME AND THE COMMUNITY

A large number of similar instances could be cited. How important the role of the gangster and strike-breaker has remained even to this day and in our largest industries is to be seen by the following: Got $503,000 in 1929 to Break Strikes—Pete De Vito Seized on Charge of Filing Improper Income Tax Return—Called. Leader of Racket—Standard Oil of New York is Said to Have Paid Him $250,000—Political Backing Alleged Failure to file a proper income tax return on $503,000 earned in five weeks in 1929 for breaking strikes in Brooklyn—including the strike of the employes of the Standard Oil Company of New York and of the American Can Company—led to the arrest yesterday of Peter De Vito, 33 years old, of 8731 168th Place, Jamaica, Queens. Federal authorities have the checks which De Vito received from the corporations. They were obtained by the staff of Hugh McQuillan, special agent in charge of the intelligence unit of the Internal Revenue service in the New York district, who worked up the case. Although none of the officials would be quoted it is understood that the oil company check was for approximately $250,000. De Vito, a short, squat man with curly black hair was indicted by the Federal Grand Jury in Brooklyn on evidence turned up by McQuillan's men. Although De Vito had never been arrested before, Howard W. Ameli, United States Attorney in Brooklyn, described him as "the biggest racketeer in the strike breaking business, reputed to be the only man in Greater New York who can successfully break a strike at any time." Six men—two United States marshals, two uniformed policemen and two detectives—with pistols drawn, forced their way into De Vito's bedroom in his substantial brick home in Jamaica early yesterday morning to serve the warrant charging him with filing a false income tax return. Two .38 calibre Colt pistols were slung over the posts of his bed, but he made no effort to reach for them. He submitted to arrest good-naturedly. " I t ' s a good thing some of you had on the uniform," he is alleged to have remarked as he slipped out of bed, "otherwise I might have thought it was a gang ready to take me for a ride and there might have been some excitement." De Vito had a permit for one of the pistols, but not for the other, so the detectives entered a charge of violation of the Sullivan Law against him. On this charge he was held in $1,000 bail later in Jamaica Court. He produced bond immediately, just as he had earlier in the day when he was held in 88,000 bail by Judge Moscowitz in Federal Court. He will be tried on the Federal indictment during October term of court, before Judge Robert A. Inch. The De Vito home adjoins that of former Police Inspector Thomas J . Mullarkey, retired, and the Mullarkey house was purchased by the inspector

SOCIAL F O R C E S IN T H E D E V E L O P M E N T O F C R I M E

41

from De Vito. In the basement of De Vito's house the detectives saw a fifteenfoot bar where De Vito entertains friends. Behind it, the police said, were all kinds of liquors and beer on tap. A billiard room was in another p a r t of the house. T h r e e walking sticks found in the place excited the detectives' curiosity. One was a sword cane with a bright Toledo blade, another was a malacca stick with a flashlight in the handle and the third has a steel inner casing, with boring, similar to the boring of a rifle. T h e police were speculating as to whether it might not have been used as a detachable rifle barrel. D e Vito frankly admitted that he had made much of his money as a strike breaker, according to the police. He is also alleged to have boasted to the detectives that he was a schoolmate of A1 Capone, the Chicago racketeer who was indicted for failing to file proper income tax returns, and that he had been chosen by Capone to take Capone's place as "big b o s s " of the nation's racketeers, " i n about six months." Brooklyn detectives who knew De Vito eight or ten years ago, when he had a fleet of trucks and a big garage at Fourth Avenue and Fourth Street in that borough, said he had been known to them as a quiet business man who had always been straight. They laughed at reports that he was a " b i g muscle m a n " and a millionaire racketeer. " H e had a lot of money when he was in the trucking business himself," said one detective, " b u t we heard that he dropped almost everything he had, two or three years a g o ; that he was practically broke." Members of the International Brotherhood of Teamsters and Chauffeurs, however, painted De Vito as a "big s h o t " and " a tough m a n . " T h e y said he employed thugs to help him break strikes and that he had the protection of the police in his strike-breaking activity because his ventures had the backing of prominent Brooklyn politicians who shared in his profits. D e Vito, the union men said, was employed not only in the Standard Oil strike of 1929, which was marked with many stabbings and shootings and ended in defeat for the oil company employes, but also provided strikebreakers for all the labor disputes in the great grocery chain store systems as far back as 1925. In his income tax return for 1929 De Vito admitted a gross income of $503,353, but his deductions for "business expenses" and " g i f t s " brought his net income down to $14,275.45. The government, however, allowed him only $187,000 for "business expenses"—for quartering and feeding his men and for similar items—and placed his net income at $315,729.95, subject to a tax of $66,397.54. All that he paid, on the basis of his own figures, was $223.65. " D e Vito is reputed to be in the trucking business," said the formal statement given out in Mr. Ameli's office. " I n 1929 he was engaged in breaking a strike, for which he received approximately $500,000. T h e duration of the strike was not more than two months."

42

CRIME AND THE

COMMUNITY

D e Vito is alleged to have told the police who took him into custody that he has at his beck and call, ready to work, between 3,000 and 4,000 men and that he can marshal, at short notice, at least 700 delivery trucks, of all types. During the Standard Oil strike of 1 9 2 9 — w h i c h later involved several other large oil distributing companies in the metropolitan d i s t r i c t — h i s men kept gasoline stations fully supplied although the union had pulled out every one of its drivers and helpers. When D e Vito was arraigned in Jamaica Court on the Sullivan law charge, he was extremely affable and self-possessed. He pretended, when first questioned by Magistrate Thomas Downs, that he could not understand English, but when the detectives told the court that he had conversed freely with them, he spoke up. A f t e r bail was fixed and date for hearing set for Sept. 30, he motioned his wife, a short pleasant-faced woman, and left the court room with her. Neither was flashily dressed. T h e only jewelry worn by Mrs. D e Vito was a plain wedding band. On the way out D e Vito approached the men, w h o had arrested him. He smiled and shook hands with them! " Y o u boys just did what you were told," he said magnanimously. " I don't blame you for this. I don't hold no hard feelings against y o u . ' "

5. Conflicting

Mores

The presence of large immigrant groups had other consequences which led to the development of those situations that have made possible our type of crime phenomena. The presence of the immigrant has seriously affected the enforcement of the law. There is first of all the question of language. In our urban communities law enforcement has naturally been in the hands of English-speaking individuals. Their linguistic facilities failed them against the Greek, Armenian, Turkish, Chinese, Russian, Yiddish, and a host of other tongues. Within these language groups the rule of the law was bound to be weaker than among those who spoke English. T h e y were more ignorant of the law, their failure to comply with it was not so readily communicated, and the mere problem of unraveling evidence against them was complicated. Because of differentiation, past tradition, and experience, they were likely to be more clannish and afraid of the outsider, especially the policeman. They expected nothing good from him, and would refuse to communicate or participate in unraveling evidence even if they could. 1 New York Times, September 24, 1931, p. 10. Five years later the Senate C o m m i t t e e on E d u c a t i o n and L a b o r heard similar testimony f r o m officials of six companies devoted to strike-breaking activities for which prominent industrialists engaged them. New York Times, September 24, 1936, p. 8.

SOCIAL FORCES IX THE DEVELOPMENT OF CRIME

43

The rapid growth of our city in the past half century and the incoming of millions of immigrants, ignorant of our language, laws and customs and their adhering to racial segregation, have increased immensely the problems of the Police in detecting crime and arresting the criminal. The tendency of some foreigners to be suspicious of a police officer and their unwillingness to expose a criminal of their own race make arrest and prosecution most difficult.1 Among some of the racial groups there were secret societies, like the Italian Mafia and Chinese tongs, who b y tradition and experience preferred to settle their own disputes. About one-half of the Chinese in San Francisco are alleged to be members of tongs. The tongs get their chief income from some form of illegal business, fleecing their own countrymen rather than members of other races. Their members are engaged in or are accessory to traffic in dope, smuggling Chinese into this country, dealing in Chinese slave girls, and gambling. It is said that all Chinese gamblers are tong men, necessarily so from the standpoint of protection. Since the tong is often a blackmailing organization, it is somewhat analogous to the American-Italian black hand, which preys upon wealthyItalians. The Chinese, however, are more helpless than the Italians in a similar situation because American customs and institutions are even more foreign to them, and there is no superior authority to settle their disputes, which cannot be handled without great difficulty in American courts.2 Nothing here is to be presumed to say that there was more crime or less crime among immigrants, or certain immigrants, than among nonimmigrants, but crime was more difficult to deal with and thereby was fostered. It continued behind a veil, and precipitated the growth of practices and habits that strengthened the hold of criminal activity in our urban communities. The political, social, and industrial conflicts between racial groups were all factors in the situation that made any general standards, any general law, any general custom, weak and ineffectual. T h e actual battles between racial gangs in certain sections of New York, Chicago, and Detroit are indications of this. When a certain west side gangster was told that there were no Jewish gangsters in Milwaukee, his first question was, "Do the Jews get pushed around much in Milwaukee?" The attitude of gangs to protect the community's safety against hostile foreign groups in the race conflict has been the basis o' the status of gangsters among the law-abiding people in the neighborhood 1

Annual Report of the Police Department, City of New York, 1931, p. 3. 'Thrasher, op. tit., p. 210.

44

CRIME AND THE COMMUNITY

Around Davey Miller and his gang, including Nails Morton, there is a tradition of defenders of the race. It is the defense of the Jews against the Poles. But there are innumerable homelier every-day incidents of which the following is an instance: " A young Jewish workman was frequently attacked by gangsters on his way to his shop. He went into Davey Miller's place, told him his story, and Davey Miller assigned two of his gangsters to accompany the young man to his work. The attacks ceased to occur after the Irish gangsters near the shop observed the companions of their victim—the erstwhile lone Jewish workman." 1 T h e Jewish gangs that grew up to protect the Jew against the Irish, the Italian gangs later in conflict with the Jewish gangs, the old comment in certain parts of C h i c a g o that " E v e r y Irish kid w a s raised to kill a Swede," the conflict between N e g r o and white that led to race riots in Chicago and East St. Louis, all trace the long-time irritation and conflict that contributed to the habit of violence, that led to coalescence of groups practicing violence against their neighbors, and that later as a matter of course left these habits established in certain areas, in certain w a y s of life, to become accepted means to a livelihood. W h i l e this was going on another process even more important was taking place, the conflict between immigrant parents and their American children.

In addition to all the other influences of industrialism and

urban life, there was here the special problem of two cultures in conflict in the same family.

Children and parents would have different lan-

guages, different attitudes, different senses of values. T h e universal conflict between the old and the young was here sharpened b y the conflict between two totally different w a y s of life. Through frequent interviews with Nick it became clear that he assumed toward his family the same attitude that prevailed among the neighbors. He regarded his parents as foreigners and aliens and assumed an attitude of contempt and superiority toward them.2 T h e home was weakened b y this struggle even more than it otherwise would have been b y the impact of industrialism, and in m a n y cases it failed either to pass on to the children the older forms or to see to it that they acquired the new w a y s . T h e family ceased to be an effective a g e n c y for education and control because it was not culturally in tune J o h n Landesco, " O r g a n i z e d C r i m e in C h i c a g o , " Illinois Crime Survey, P a r t I I I , p. 1050. R . S h a w and H e n r y D . M c K a y , " S o c i a l Factors in Juvenile D e l i n q u e n c y , " National Commission on L a w Observance and Enforcement, N o . 13, Report on the Causes of Crime, V o l . II, p. 11. Washington, D . C., 1931. 1

2Clifford

SOCIAL F O R C E S I N T H E D E V E L O P M E N T O F C R I M E

45

with the environment. The other agencies of the community could not absorb the additional burden that the failure of the family imposed upon them, and the result was the greater isolation and disorganization of the individual caught between the two sets of mores and fully absorbed in neither. The strife natural to a community that grew rapidly and by the continued addition of new and varying cultural groups was not an easy background for the enforcement of puritanic virtues and ideals written into law. The ruling and law-making prerogatives remained for a long time, and still largely remain, in the hands of the earlier immigrants and settlers and their children. Reinforced by the experience of pioneer conditions and rural life, they succeeded in writing their moral code into the law and in retaining it there because the rural districts, even in those states where cities are large, have retained control of the state legislatures. An . . . obstacle which will long stand in the way of improvement is to be found in the organization of the legislature in most states, dating from a rural, agricultural era and giving a decided preponderance to localities in which older and now obsolescent conditions obtain. T h e chief difficulties in criminal justice are in t h e cities or about the metropolitan areas. But for the greater part of w h a t a great city needs in order to cope with crime, it must depend on action by the state legislature or even on amendments to the state constitution. In the end, the state may do anything not forbidden it by the federal constitution. T h e state legislature may do anything not prohibited to it by the federal and state constitutions. T h e city, on the other hand, may do only what the state empowers it to do. 1

It was natural for the rural districts charged with pioneer tradition to attempt to suppress prostitution, gambling, drunkenness, and related evils by fiat of law. In countries of greater experience and more maturity, these matters are regulated, controlled, hedged in; they are not abolished by an edict. In the field of women's criminality one is, first of all, struck by the different attitude of American states concerning sex morality. Very varied factors have contributed to the legislation in this field: English common law forms t h e oldest substrate of i t ; the severe P u r i t a n philosophy of the New England colonists added new rules; the deportation of convicts and vagabonds from England to the American colonies, and later slavery, necessitated f u r t h e r provisions to control the moral evils to which these conditions gave rise; later 1

Pound, op. cit., pp. 201-203.

46

CRIME AND THE COMMUNITY

again migration problems stimulated legislation; and finally the so-called social hygiene movement for the suppression of prostitution and venereal diseases, developed since the end of the last century, led to a substantial extension of penal legislation in this field.1 T h e difference between the use of suppression in the United States and the use of regulation in European countries in dealing with vice, drinking, and gambling may be seen in the treatment of fornication. The act of itself does not generally constitute an offense in the Continental countries. Fornication, i. e. sexual intercourse between unmarried persons or of a married man with a single woman (the definitions differ), was not punishable at English or American common law, unless it was committed under notorious circumstances corrupting public morals. Under Puritan influence, however, it was made a statutory offense in Massachusetts in 1692, and at present the single act of fornication is a statutory offense in 23 states and in the District of Columbia.2 Such provincial control was particularly unfortunate because under the urban conditions of life in America these evils were perhaps inevitable and the attempts to suppress them bound to fail. In the process of suppression many activities became illegal rather than disreputable. T h e attempt to enforce strictly a code that was not fully applicable to the urban communities created difficulties for the law and the lawenforcing machinery which complicated the problem of enforcing other laws. What happened in the case of prohibition had its replica on a smaller scale in the cases of prostitution, gambling, and other vices. In the attempt completely to suppress them related activities also became illegal, and the indiscriminate grouping as criminal of all activities that have centered around these phenomena resulted in their becoming subject to control, direction, protection, and manipulation by criminal elements. Just as prohibition produced its crop of law-breakers, so did the attempt to enforce the rest of the puritanical code upon an urban community. The number of unenforceable laws increased the field of criminal activity and nurtured the criminals who profited by these laws to the point of creating a system definitely outside of the law and beyond the police power. T h e profit-making aspect made such organization possible, and played an important role in paralyzing law-enforcing agencies through political manipulation and direct corruption. T h e attempted suppression of prostitution, gambling, and drink made them profitable beyond 1 E u g e n i a Cornelia L e k k c r k c r k e r , Reformatories 19. Groningen, Netherlands, 1931.

for Women

in the United p. 22.

2Ibid.,

States,

pp. i S -

SOCIAL FORCES I N T H E D E V E L O P M E N T OF C R I M E

47

ordinary expectancy. The breaking of the law became doubly lucrative, and part of its gain was used to corrupt the law-enforcing agency through bribery. No one who has an insight into the history of politics and law-enforcement in cities like New York, Chicago, Detroit, St. Louis, and San Francisco, fails to see how the police, the public, the district attorney's office, even the magistrates' courts became in one or another way corrupt or dominated by those interests that grew wealthy from the carrying on of practices prohibited by the law. We have attempted to suppress what is regulated in other countries; the attempted suppression has failed, but its failure has seriously tainted those very agencies upon which the community most depends for the enforcement not merely of these but of all laws. By direct or indirect partnership with the law-breakers in things still profitable though prohibited, lawenforcing agencies became less competent in the enforcement of all law.

6. Administrative

Conflicts

An additional complicating factor has been the divergent and overlapping character of our legal and judicial administration. The conflict of authority between the Federal government and the states, the frequent conflict between the city and the county, the conflict between urban and rural jurisdictions both in the enunciation of law and in the enforcement of it, have made it difficult to carry out any consistent policy in dealing with the lawbreaker. As one studies criminal justice in action in America today, he must be struck with the way in which the different agencies of justice, acting quite independently, continually hinder or thwart each other, or, if fortunately there is no interference, at best lend each other little or no aid. Each state, each county, each municipality, each court, each prosecutor, each police organization—and often more than one is operating in the same territory—is likely to go its independent course, with little or no regard for what the other is doing. It may even happen that state and federal prosecuting agencies or judicial officers may cross each other's paths and interfere with each other's operations. . . . In more than one locality, local and state police may act together or may act independently, or may act at cross purposes. Federal enforcement officers acting under different bureaus have been known to ignore or even thwart each other. State and federal enforcement agencies frequently clash, and when municipal, state, and federal agencies have concurrent powers, they seldom concur in any effective cooperation. Where there is but one jurisdiction involved, police, public prosecutor and coroner may proceed with parallel investi-

48

CRIME AND THE COMMUNITY

gations, or with investigations that cross each other, or may even hamper each other, as the exigencies of politics, quest for publicity, or zeal for the public service may dictate. 1 T h e r e are endless complications in the divergence of statutes which m a k e something legal in one place and illegal in another, enforced in one place and not in another.

In other words, the task of developing

common standards, already difficult in a community so filled with internal strain as the United States, has been impeded b y the division and confusion of authority among different jurisdictions, and b y the different ideas of the incidence of conduct and its necessary control or direction that characterize the United States. . . . The maximum punishment for arson in fraud of insurance is in Alabama imprisonment for one year and a fine of two thousand dollars, in North Carolina forty years imprisonment. The maximum punishment for perjury is five years imprisonment in Connecticut, twenty years in New York, life imprisonment in Maine, death in Missouri, and ten years imprisonment, a fine of five hundred to two thousand dollars and forty lashes in Delaware. Whereas in West Virginia the maximum punishment for bigamy is sixteen times as high as that of incest, in Wyoming and Colorado incest is punished ten times as severely as bigamy. In California minors are under the Chancery jurisdiction of the juvenile court until they are twenty-one years old, whereas in some other states even very young children of seven or eight years old may be subjected to the same law and jurisdiction as adults. And so examples could be cited ad infinitum.2 P e r h a p s we need not decry these facts. T h e y are part of the v e r y substance of American life, and the by-products are to be seen not merely in the increase of crime and the difficulty of its control, but also in the growth, expansion, freedom, and initiative that have characterized the A m e r i c a n community. A stabler community would conceivably h a v e given us less crime, but it would certainly have given us less of those special virtues and achievements that we recognize as especially American. I t does not require great perception to see that the v e r y emphasis upon success as a personal accomplishment has colored individual conduct to such an extent that criminals' as well as b a n k e r s ' careers m a y be expected to be profoundly influenced b y the desire to succeed in monetary terms. So too our emphasis upon freedom and the rights of the individual has been a factor in this process of developing the virtue of " r u g g e d individualism" on one hand and of facilitating certain criminal careers on the other. ' P o u n d , op. cit., pp. 174-176.

2 Lekkerkerker,

op. cit., p. 17.

SOCIAL F O R C E S I X T H E D E V E L O P M E N T O F C R I M E

49

A discussion of the causation of crime in the United States must therefore take this general setting as its point of departure. Our verycrime is typical of the community, an exposition of its internal strains and conflicts; but the strains and conflicts are evidence of the possible deeper mergence of diversity into a greater United States.

W e may

decry our extensive criminal activities, but we must accept them as indigenous rather than foreign or extraneous to the body politic; and we must recognize that a change in the amount and character of our crime awaits a change in the community which has given rise to that crime. I t is only in this very broad sense that cause has any meaning. Cause is related to the broad influences that have called forth, stimulated, tolerated, and upon occasion utilized the very elements we define as criminal.

American criminal activity has persisted because it was

called into being and perpetuated by those complex and overlapping social strains which have characterized the growth and development of American life. Not until the American community changes profoundly will the character and the amount of crime in it also change.

BIBLIOGRAPHY and others. Report on Crime and the Foreign-Born. National Commission on Law Observance and Enforcement, Report No. 10. Government Printing Office, Washington, D. C., 1931. ADAMIC, L O U I S . Dynamite. The Viking Press, New York, 1931. ADAMS, J A M E S T R U S L O W . Our Business Civilization. A . & C. Boni, New York, 1929. ALLPORT, FLOYD H . "Culture Conflict versus the Individual as Factors in Delinquency." Social Forces, Vol. 9 (June, 1931), pp. 493-497. BROOKS, R O B E R T C. Corruption in American Politics and Life. Dodd, Mead & Company, New York, 1910. CLAGHORN, K A T E H . "Crime and Immigration." Journal of Criminal Law and Criminology, Vol. 8, 1917-1918, pp. 675-693. ABBOTT. E D I T H ,

DOUGLAS,

PAUL

H.;

HITCHCOCK,

CURTICE

N.;

and

ATKINS,

WILLARD

E.

The

Worker in Modern Economic Society. The University of Chicago Press, 1924. F R A N K F U R T E R . F E L I X . The Public and its Government. Yale University Press, New Haven, 1930. F R Y , H E N R Y P . The Modern Ku Klux Klan. Small, Maynard & Company, Boston, 1922. H A L L , J E R O M E . Theft, Law and Society. Little, Brown & Company, Boston, 1935. Illinois Association for Criminal Justice. The Illinois Crime Survey. Chicago, 1929. Especially Part III, "Organized Crime in Chicago." LAIDLER, HARRY W. Boycotts and the Labor Struggle. John Lane Company, New York, 1913. L E K K E R K E R K E R , E U G E N I A CORNELIA. Reformatories for Women in the United States. J. B. Wolters Uitgevers-Maatschappij n. v., Groningen. Netherlands, 1931.

SO

C R I M E

A N D

T H E

C O M M U N I T Y

Lewis, LLOYD, and SMITH, H. S. Chicago, The History of its Reputation. Harcourt, Brace and Company, 1929. MAUNOWSKI, BRONISLAW. Crime and Custom in Savage Society. Harcourt, Brace and Company, New York, 1926. MCCORD, CHARLES H. The American Negro as a Dependent, Defective, and Delinquent. Benson, Nashville, 1914. MECKLIN, JOHN M. The Ku Klux Klan. A Study of the American Mind. Harcourt, Brace and Company, New York, 1924. MERRIAM, CHARLES EDWARD. Chicago, a More Intimate View of Urban Politics. The Macmillan Company, New York, 1929. MOWRER, ERNEST R . Family Disorganization. The University of Chicago Press, Chicago, 1927. New York City Police Department. Annual Reports, especially 1 9 3 1 . OREBAUGH, DAVID A. Crime, Degeneracy and Immigration. Richard G. Badger, Boston, 1929. POUND, ROSCOE. Criminal Justice in America. Henry Holt and Company, New York, i93°" Prisons of Tomorrow." The Annals of the American Academy of Political and Social Science, Vol. 157 (September, 1 9 3 1 ) . REID, IRA DEA. Social Conditions of the Negro in the Hill District of Pittsburgh. General Committee on the Hill Survey, Pittsburgh, 1930. REUTER, EDWARD BYRON. The American Race Problem. Thomas Y . Crowell Company, New York, 1927. RIPLEY, WILLIAM Z. Main Street and Wall Street. Little, Brown & Company, Boston, 1937. SHAW, CLIFFORD R . , and M C K A Y , HENRY D .

" S o c i a l F a c t o r s in J u v e n i l e Delin-

quency," Publications of the National Commission on Law Observance and Enforcement (commonly called the Wickersham Commission), No. 13, Report on the Causes of Crime, Vol. II. Government Printing Office, Washington, D. C., 1931THOMAS, WILLIAM I. The Unadjusted Girl. Little, Brown & Company, Boston, 1923. THOMAS, WILLIAM I., and ZNANIECKI, F .

The

Polish

Peasant

in Europe

and

America. Alfred A. Knopf, New York, 1927. THRASHER, FREDERIC M. The Gang. The University of Chicago Press, 1927. VAN WATERS, MIRIAM. Youth in Conflict. Republic Publishing Company, New York, 1925WATSON, FREDERICK. A Century of Gunmen. Nicholson and Watson, London, 1 9 3 1 . YOUNGMAN, ANNA. Economic Causes of Great Fortunes. The Bankers' Publishing Company, New York, 1909. ZORBAUGH, HARVEY W. Gold Coast and Slum. The University of Chicago Press, 1929.

CHAPTER

III • Education for Crime

1. Habituation

to a Way of Life

Education for crime must be looked upon as habituation to a way of life. As such it partakes of the nature of all education. It is a gradual adaptation to, and a gradual absorption of, certain elements in the environment. As an educational process it depends upon instruction, stimulus, approval, companionship, conversation, idealization. It has its elements of curiosity, wonder, knowledge, adventure. Like all true education it has its beginnings in play, it starts in more or less random movements, and builds up toward techniques, insights, judgments, attitudes. It gradually takes on constructive skills. It depends upon companionship and approving judgment. Like all education it utilizes the material and ideal elements in the environment; it could not come to pass otherwise. It uses what there is to be found in the neighborhood. These may be such humble things as junk heaps, alley ways, abandoned houses, pushcarts, railroad tracks, coal cars. It begins with the easy things that can be picked up, pilfered, carried off, eaten, disposed of. It requires companionship and encouragement. It is a social process, like all education for life. Friends, companions, brothers, gangs, participate, encourage, amuse, tease, praise, blame, compensate. It is a part of the adventure of living in a certain way in a certain environment. But both the environment and the way of using it must already be there. Both the material and the social environment are prerequisite. For the career of the criminal to develop there must not only be the friends in the gang, the habits of the older companions already prepared to make certain adjustments through previous instruction, but there must also be the support of the older generation. There have to be intermediaries or the career would have no outlet. These intermediaries are an essential part of the environment which may be utilized in a certain way. The intermediary (the fence) may be only a humble junk peddler. But he is important. He will purchase bottles, copper wire, lead pipes, bicycles, and trinkets. He will not only pay cash which can be used to continue the play life of the growing children, for movies, candies, sweets, harmonicas, base-ball bats, gloves, and other paraphernalia, but if he is a friendly and enterprising fence

52

CRIME AND THE COMMUNITY

he will throw out suggestions, indicate where things can be found, will even supply the tools with which to rip and tear down lead pipes or other marketable materials. And the young gang will accept the suggestions and carry out the enterprise as a part of a game, each act providing a new experience, new knowledge, new ways of seeing the world, new interests. Nor is this sufficient. For the career to mature and the habits to be crystallized, there must and there do exist certain other items in the environment. There is approval, from parents, older members of the family, or other experienced people. There must also be a certain attitude toward the police, toward private property of foreign agencies, like railroads and the merchandise which they transport. There must also be older criminals who utilize the youngsters as messengers, lookouts, go-betweens. There is also necessary a pre-existing sense of values: the younger boys must learn to approve, respect, imitate, and crave the companionship of, the older and more experienced members of the criminal fraternity. All this is essential, and with it there must also be present the conflict between the marauding youngsters who in their random and mischievous movements intrude, destroy, annoy, and pilfer and the older and more settled element in the neighborhood who chase, shout, throw things, and call for police protection. All these elements are part of the atmosphere, of the environment within which the educational process begins and proceeds. T h e y provide the resources, the motive, the stimulus, the approval, the conflict, opposition, and persecution, which are essential for a hardening of wills and the defining of characters as good and bad from the different angles of the slowly habituating criminals on one hand and the community on the other. The absence of the essential elements in the environment would make the education for crime impossible, just as the absence of books, schools, teachers, blackboards, and pencils would make the other kind of education impossible. They are processes that differ only in their emphasis upon values and the habits which they stimulate and bring forth. They do not differ in method, except that one is organized, formal, overhead, impersonal. T h e o t h e r — t h e criminal education—is more random, less formal, more personal, intimate, interesting, kinetic. T h e first is more intellectual, the second more muscular. In the process approval, praise, fun, and pleasure go to the successful in each of the groups of young students. T h e group going in for crime receives perhaps a greater amount of direct instruction and stimulus than the other group. All this discussion is merely a way of saying that the criminal

EDUCATION FOR C R I M E

S3

career has its origin in education, that is, in the slow, persistent habituation of an individual to a way of life. T h i s includes both a w a y of using the material world and a way of viewing it. Unless one sees this one cannot understand the criminal career. T h e criminal career tends to begin in a gang where the differentiation between play and crime is not sharply drawn. In fact, at first this distinction may not be drawn at all. It is play, one kind of play, to go robbin'. Games themselves, of course, are derived from the f o l k w a y s and the mores of the environment; the opportunities for play and mischief as well as the materials for it are also to be found in the environment. And if we recall what has frequently been insisted upon, that " t h e most important situations in the development of personality are the attitudes and values of other persons," 1 then we can see that slow maturation and differentiation of a criminal personality is itself part of the process of growth and education within certain groups where specific habits and attitudes are present. T h e difference between " g o i n g robbin' " and playing robbers is not so great after all. I asked Jimmie if his was a tough gang. After his indignation at the question had cooled, he resumed his usual good-natured smile. "Well, what does your gang do, then ? " I ventured. "Oh," came the naive reply, "We go robbin' mostly." 2 While in one case they actually go robbin', in another the game itself is evidence of greater sophistication and knowledge of the w a y s of the world in its dealings with crime than is indicated by the actual experience of going robbin'. The game cited shows that the boys already know specialized techniques and attitudes which indicate more than mere play. One of our favorite games was the well-known one, coppers and robbers, and I can truthfully say I never seen it played as we did; we divided our two groups up; one bunch was coppers and the other was crooks; then we separated and it was up to the coppers to catch the crooks and see that he was put into the jail as we called the spot under the porch. But now comes the hard part of the game; when a crook was caught he hollered for help, and he got it, and the unlucky copper that pinched him got banged up good and plenty, until he got help from some one on his side, or until he would let us leave with the guy he had pinched, and when some one of the unlucky crooks got to what we called the jail, it was too bad for him; he got what is termed as the "third degree" until he told where we were hiding •Thomas and Thomas, op. cit., p. 571.

2

T h r a s h e r . o p . cit., p. 9 a .

54

CRIME AND THE COMMUNITY

and where we hid the swag, as the swag was the thing the side of the coppers wanted, and when they found it we changed sides; the coppers were then crooks and the crooks coppers. The third degree consisted of being pinched, socked and kicked, and then everybody that reached the jail got five or any amount of slaps on the rear end, and was then tied up as it was the best substitute for handcuffs we could think of.1 These beginnings are gradually defined and crystallized through specific instruction and inculcation by the older members of the group. The criminal career may be said to begin as an act of instruction in illegal behavior. Investigations of the careers of the criminal illustrate that fact over and over again. It is not merely the usual bad companions or environmental influence. It is the fact that there is actual instruction, teaching. The teaching may be by older children as a part of a game, or it may be by older criminals with the deliberate intent of training for the career, but in either case it is teaching. One criminal wrote " I was taught to commit crime. I was shown the sport to be got from money without work." 2 Another said " I went with a boy who taught me how to be a pickpocket." 3 Another said " I associated with a lot of truants and I learned craps from them. When my money was spent I would follow the example of the others stealing petty things to make a few cents." 3 In the detailed stories collected by Shaw and McKay in their studies of the careers of delinquents we get a picture of the process of learning the trade of being a criminal. Here is an example of how one playmate teaches another to steal apples from a fruit store. It reveals all the essentials in any teaching. There are to be seen here example, stimulus, repetition, further stimulus, approval, and finally pleasure. It required "lots of practice and . . . many examples." It was at about this period that I began to go to school and I liked it. I had often asked my mother when I could start to go. When I finally went I was tickled to death. Shortly after this I became acquainted with a boy named Joseph Kratz, who lived a few doors from where I lived. Joseph was about four years older than I was and knew a lot. He knew so much about life and I liked him so I made him my idol. At first he would not allow me to go places with him because I was so much younger than he was. But finally he allowed me to ' S h a w and M c K a y , "Social Factors in Juvenile Delinquency," pp. 253-254. Unpublished documents from prisoners in Auburn and Sing Sing prisons. 3 Ibid. 2

EDUCATION

FOR

55

CRIME

accompany him after school and we became fast friends. He proved to be very fast indeed; for one day while we were passing a fruit store he picked up an apple while no one was looking and continued to walk past the store with the apple in his hand. He performed for me in like manner quite a few times and nothing would do but that he must teach me to do the same thing. T h a t was the first time I ever stole anything. . . . He, that is Joseph, started to walk past the fruit store and as he came to a box of fruit he took some fruit and walked on. He motioned me to do the same thing. I would walk behind him and as soon as he would pick up a piece of fruit I was supposed to do likewise. It took lots oj practice and he had to set many examples before I could at last gain enough courage to follow suit.1 T h e i n s t r u c t i o n of h o w to t a k e a p p l e s is f o l l o w e d b y f u r t h e r e d u c a t i o n , a little m o r e i n t e r e s t i n g a n d m o r e difficult. . . . Joseph wanted me to crawl in first but I lacked the courage. So he had to crawl in first himself. After he was inside he had to do a lot oj coaxing and motioning in order to get me to follow him. I finally crawled through and we made for the rear, he leading. He went straight for the cash register and proceeded to rifle it. I had much rather have explored the cigar case. I got to my toes several times in an effort to peer into the cash drawer but Joseph cautioned me down with " S h ! wait'll I get through." Finally he allowed me to help myself from the cash drawer. I couldn't raise myself high enough to see the whole cash drawer but I saw enough to let me know that they were all empty except one and that contained nickels and a few dimes. . . . N o one was there so we stole through to the side passage and thence to the street. With my hands in both pockets I commenced jingling the coins and made lots of noise walking down the street. I was reproved for this by Joseph for I was attracting people's attention toward us. 2 H e r e the little f e l l o w l e a r n e d n o t m e r e l y h o w to c r a w l into a store b u t h o w to b e h a v e a f t e r w a r d .

H e l e a r n e d an i m p o r t a n t lesson, n o t to a t -

t r a c t a t t e n t i o n . T h e s e e v i d e n c e s of i n s t r u c t i o n c a n b e d u p l i c a t e d a g a i n a n d a g a i n in t h e e x p e r i e n c e s of p r o f e s s i o n a l c r i m i n a l s . T h e y l e a r n their trade. . . . He asked me how I would like to be able to " l i f t a p o k e " as good as he could. . . . I was awed at his ability to pick a man's pocket without a person feeling it. . . . He first started to schooling me in a room in which he lived in how to pick a pocket. . . . I was with him for several months as his " d u k e man." During the course of these months he was giving me daily lessons. 3 ' S h a w and M c K a y , op. cit., pp. 223-224. (Italics not in original.) 2 Ibid.,

pp. 224-225.

(Italics not in original.)

'Ibid., pp. 235-236.

CRIME AND THE

56

COMMUNITY

A n d t h e d e l i c a t e a r t r e q u i r e s m o n t h s of i n s t r u c t i o n . H e l e a r n e d t o b e a ''stick-up man." I finally decided to quit picking pockets because it didn't pay enough. Besides I got in with a mob of stick-up guys who were making dough. I started working with this stick-up outfit who were preying upon gambling houses, union halls, and I learned their trade. I stayed at that for about three years. 1 E v e n the m o d e s t a n d u n r e m u n e r a t i v e a r t of " r o l l i n g d r u n k s " r e q u i r e s time, courage, habituation, and practice. . . . I had seen several of the older boys put what is known as " t h e a r m " on a drunk and later on when I happened to be walking down a street and I see a drunk, I always went to a pool room where they hung out, told them which way the drunk had gone and went with them, not taking part in the actual robbery. I was always given all the way to $20, which I didn't know whether it was split or not. I didn't know just how much they got. Later I gamed up and took an actual part. . . . 2 I n the case of a g r o u p a d d i c t e d to s t e a l i n g b i c y c l e s , S h a w a n d M c K a y g i v e a n o t h e r c l e a r d i a g r a m of the l e a r n i n g p r o c e s s :

suggestion,

c o u r a g e m e n t , e x a m p l e , a t t e m p t , the thrill of s u c c e s s f u l e f f o r t . o c c u r r e d the " t r a n s m i s s i o n o f d e l i n q u e n t t r a d i t i o n . "

en-

Thus

T h u s is t h e be-

h a v i o r l e a r n e d a n d p a s s e d on. It was during the vacation of school in 1924 when the two lads I was chumming around with asked me to go with them up north to take bicycles. I mean the north side of Chicago. 1 told them I have never been out there and was afraid of getting lost; Joe, which was one oj the boys, said "Come on, you won't get lost. All you have to do is to jollow the L." So I went with them. When we arrived in the swell neighborhood by Rogers Park we walked around the streets. W e walked a few blocks and one boy, which was Charley, said, " T h e r e ' s a good bicycle." Then Joe said, " W a t c h me get that one," then he walked up to a bicycle and rode away with it. Then Charley said to me to come on, let's go home. W e took the L back and he paid the fare. W e got home and having nothing to do we waited around for Joe to come with the bicycle. He came back about four hours later and told Charley he sold the bicycle to a fellow for five dollars. W e went there a few times and stole a few more bicycles. T h e few dollars we made in selling the bicycles made me think I was a millionaire/ 1 ' I b i d . , p. 239. (Italics not in original.) 2Ibid., 3Ibid.,

p. 234. p. 230.

(Italics not in original.)

EDUCATION

FOR

CRIME

57

2. Crime as Normal Activity N o t only does the criminal career begin as instruction, but it must have the support of a gang where these activities are accepted as normal. In fact, crime among the young tends to be "social enterprise" rather than individual. Like all education for a way of life, it must have the support of a group. The education for the criminal career does not in this sense differ from other education. It is the passing on of habits, attitudes, views; it is the sharing of experiences and the carrying on of common adventures and the communication of common ideals. The career develops in connection with other careers, is part of the other careers, and could not develop outside of this companionship, participation, and common enterprise. In fact it may be argued that the criminal career is the career of a group in which individuals play different parts. It is as much that as the career of a profession—medicine, or law, or engineering—is a group career within which the individual plays a part. T h e part may be large or small, it may be impressive or negligible, but it is made possible by the group. The doctor requires a medical education which involves social enterprise in the form of schools, hospitals, laws, teachers, traditions. So does the lawyer, so does the engineer. In all these cases the training is a social enterprise. So is the practice of the profession. It too requires the consent and the participation of the professional group. Co -operative enterprise is of the essence of a profession. So it is of crime. It too must be practiced in a group. Gang O. T h i s gang meets on the street from which it takes its name. It has eight members between the ages of n

and 16 years. T h e y cover a territory

five blocks each w a y . T h e i r offenses consist in stealing and selling j u n k , cutting lead pipe out of v a c a n t houses, and stealing fire wood and coal. T h r e e members are known to the Police W e l f a r e D e p a r t m e n t for having stolen lead p i p e from a house. O n e of these and four others were recently in the Children's C o u r t for stealing j u n k and $30 from a j u n k shop. O n e member helps dispose of their loot. T w o are known to have recently burglarized a store. 1

This common experience may produce self-consciousness, pride, and standards of conduct, a professional code. . . . T h e y are proud of being a tough gang and often get caught b y the police, but never squeal on a member. Seven of its members h a v e been in the 1 New

York Crime Commission, 1927 Report, p. 371.

CRIME AND THE

58

COMMUNITY

Truant School and about one-third of its members have been in the Children's C o u r t ; two have been in the Magistrate's Court and three have been in reform institutions. 1 T h e a c t i v i t i e s of s t e a l i n g a r e o r g a n i z e d a n d d i s t r i b u t e d in t e r m s o f special abilities and past experience. I got in with two older boys who were pals of my other companions in the racket and we planned to make some money. One of the boys had a pistol. These two lads knew the game because they have participated in hold-ups before. So all I had to do was do as I was told. W e went to a garage in the neighborhood and stuck up the attendant. While they stuck up the attendant they told me to get a car. T h e fastest one there was. So I picked on a GrahamPaige. T h e y got in and we went away. 2 I n its e a r l y d a y s the c a r e e r is f u n d a m e n t a l l y a d v e n t u r e r a t h e r t h a n e n t e r p r i s e . I t b e c o m e s a s o u r c e of i n c o m e o n l y s l o w l y . I n t h e b e g i n n i n g it is f u n , w a r , p l a y ; it is r a n d o m m o v e m e n t . Y o u s e t o u t t o s t e a l m o n e y a n d i n s t e a d c a r r y a w a y " s a r d i n e s , c a n d l e s , a n d m a t c h e s , " b u t the a d v e n t u r e s e e m s to b e j u s t as e n j o y a b l e . W e used to go robbing at a wholesale grocery. Five of us went there one night; we had been in twice before. W e knew there was money in the safe, but we was afraid to take it because the safe might have 'lectricity. So we filled a big bag with sardines, matches, candles, etc. 3 T h e s t e a l i n g a c t i v i t i e s m a y t h e m s e l v e s b e a s o r t of g a m e a m o n g b o y s . When we were shoplifting we always made a game of it. For example, we might gamble on who could steal the most caps in a d a y , or who could steal caps from the largest number of stores in a day, or who could steal in the presence of a detective and then get away. W e were always daring each other that way and thinking up new schemes. This was the best part of the game. I would go into a store to steal a cap, by trying one on and when the clerk was not watching walk out of the store, leaving the old cap. W i t h the new cap on my head I would go into another store, do the same thing as in the other store, getting a new hat and leave the one I had taken from the other place. I might do this all day and have one hat at night. It was the fun I wanted, not the hat. I kept this up for months and then began to sell the things to a man on the west side. It was at this time that I began to steal for gain. 4 I remember one petty robbery one afternoon where we needed something to smoke but didn't have any money to buy smoking tobacco with, so the 1 Ibid., 2 Shaw

p. 369. and M c K a y , op. cit., pp. 231-232.

3 Thrasher, 4Shaw

op. cit., p. 93 and M c K a y , op. cit., p. 251.

EDUCATION

FOR

CRIME

59

oldest of the crowd suggested shaking dice. T h e loser had to grab the purse of the next woman who passed along the street. The loser happened to be the bully. Well, just then an old lady came by with one of those old-fashioned purses and the bully walked over and grabbed her purse. 1 A g o o d i l l u s t r a t i o n t h a t m a y s u m m a r i z e the p a r t t h a t the g r o u p p l a y s in t r a i n i n g the d e l i n q u e n t is the f o l l o w i n g s t a t e m e n t of h o w one b e c o m e s a b a b y b a n d i t a t the a g e of e i g h t . T h e reader will n o t i c e all the m a n y t h i n g s t h a t the little f e l l o w l e a r n e d on his first " b i g n i g h t " w h e n h e g o t t h e " k i c k of his w h o l e l i f e . "

H e s e c u r e d in t h a t one n i g h t e x -

p e r i e n c e , a p p r o v a l , a t t i t u d e , t e c h n i q u e , a n d c o m p a n i o n s h i p of

older

b o y s to w h o m h e l o o k e d f o r g u i d a n c e a n d w h o s e a p p r o b a t i o n h e w a n t e d . When I was 8 years old I did my first big job in the racket. This job was the biggest thrill I ever got in my life. It happened in April. T h a t d a y I was hanging around with the oldest brother and his gang. T h e y had been playing baseball all afternoon and I was watching them. When it got too dark to play ball we all went into and tell stories. T h e big guys got to talking about said he had a good place spotted where we would (money). T h e big guys planned everything, and

the alley to have a smoke stealing, and my brother get some easy " d o u g h "

I only listened. These guys were seven or eight years older than me and had pulled off a lot of big jobs before. T h e y would never let me go with them on big jobs; but this night I went along and they didn't say a word. W e all went to the butcher shop about 1 1 : 3 0 o'clock. It was very dark and everything was quiet, and I was nervous and stayed close to my brother. W e all slipped around into the alley behind the butcher shop, and my brother and another big guy went up to the building to see if the doors were unlocked. M y brother had been in the place a few days before to see how to get in and where the cash register w a s ; and so he led the way. I and two other guys waited close to the alley between two buildings. W e were going to give "jiggers."

In a little while my brother came back and said everything was locked tight. T h e owner lived over the butcher shop, so we couldn't make much noise by breaking the glass or jimmie the door. W e all went up to the back door, and then my brother got a box and stood on it and tried the t r a n s o m — a n d it opened. It was too little for my brother or the other guys to get through. T h e n I was thrilled when they said I'd have to crawl through the transom. T h a t was the kick of my whole life. I was only 8 and always was very little so I could get through the transom easy. I was scared but made up my mind to go through anyway. I was too thrilled to say no.

1

Ibid., p. 124.

60

CRIME AND THE COMMUNITY

When we got out, my brother divvied up everything and I got $4 and a lot of cigarettes. I felt like a "big-shot" after that night and the big guys said I could go with them every time they went robbin'. Almost every night we went robbin' and many times I had to crawl through transoms and one time through an icebox hole. That's why the big guys called me the " b a b y bandit." 1 B u t more than companionship is required.

T h e community itself

must p r o v i d e older people who a p p r o v e of and support the delinquent careers of the y o u n g s t e r s , and to w h o m the y o u n g e r ones can look up as heroes. I t is important that the career of the criminal be seen a s a moral enterprise f r o m the point of view of the growing children.

That

sense of " r i g h t , " " g o o d , " and a p p r o v a l is derived f r o m older criminals in the neighborhood, w h o provide stimulus, example, approbation.

They

m a k e the big w o r l d f o r the little fellows. I t must be insisted on that unless there w e r e older criminals in the neighborhood who provided a moral j u d g m e n t in f a v o r of the delinquent and to w h o m the delinquents could look f o r commendation, the careers of the y o u n g e r ones could not develop at all. Unless something is known of Abie's family no possible explanation can be made for his delinquent acts. The " F G a n g " was notorious fifteen years ago. Abie, hanging around the F Theatre, where the members of this gang loafed, ran errands for them and listened to their stories of the unlawful deeds and the successful getaways of these gangsters. As an adolescent boy he knew his father was sexually promiscuous, that he ran a "speak easy," and frequently acted in the capacity of a burglar, and that he never supported his family properly. He had heard violent quarrels in his home when his mother accused his father of infidelity. Not only was the father a burglar, but more than five years ago he asked his son to assist him, and they did several " j o b s " together. 2 T h e little fellows look with admiration at the " b i g s h o t s , " and the " b i g s h o t s " tolerate, instruct, and use the little fellows. T h i s support m a k e s the enterprise of the y o u n g e r elements an a p p r o v e d activity. I t must be urged over and o v e r again that without this a p p r o v a l , support, and cooperation, the activities of the younger members either would never arise, or if t h e y a r o s e would disintegrate much more readily than they do at present. When I was twelve years old we moved into a neighborhood where there lived a mob of gangsters and big crooks. They were all swell dressers and had ' S h a w and M c K a y , op. cit., pp. 2 5 2 - 2 5 3 . 2 N e w Y o r k Crime Commission, 1928 Report, p. 358.

EDUCATION

FOR

CRIME

61

big cars and carried " g a t s . " Us kids saw these swell g u y s and mingled with them in the cigar store on the corner. Jack Gurmey w a s the one in the mob that I had a fancy to. He use to take my sis out and that w a y I saw him often. He was in the stick-up racket before he was in the beer racket and was a swell dresser and had lots of dough. He was a nervey guy and went in for big stuff. He was a mysterious fellow and would disappear sometimes for several days but always came back. He was looked up to as the leader of his mob and anybody would be glad to be in his place. He never talked to me about crime, but I secretly looked up to him for his daring and courage. He was what a fellow would call a big hit to me. I liked to be near him and felt stuck up over the other guys because he came to my home to see sis. 1 T h e a r t of " s h o w i n g o f f , " h a v i n g b a n k rolls, a g u n , a c a r , " b e i n g a swell d r e s s e r , " " b e i n g a t o u g h g u y , " a r e all p a r t of the d i s p l a y t h a t is p a r a d e d in f r o n t of t h e y o u n g h a n g e r s - o n b y o l d e r c r i m i n a l s . Wherever the old guys met they would talk about robbin'. T h e older guys were called " b i g shots" for their ability to make money fast by picking pockets, snatching purses, and the use of a gun in holdups. T h e y even had what is called " b a c k e r s , " a lawyer or somebody with a pull. Just as soon as they got caught a lawyer would come and also a bondsman and out on the street the boy went. T h e " b a c k e r " worked on a fifty-fifty basis. 2 T h e m o r e e x p e r i e n c e d c r i m i n a l s t o l e r a t e the s m a l l e r d e p r e d a t i o n s of the y o u n g e r ones w i t h a sense of s u p e r i o r i t y a n d a p p r o v a l . M y neighborhood was filled with rackets of all kinds, from stealing pennies from news stands to stick-ups. T h e little fellows begin by stealing little things and bumming from school. T h e " b i g s h o t s " steal automobiles, stick up, and do robbery jobs. T h e y drive around in swell cars and strut their stuff and have a swell broad on the string. N o kid wants to be in a piker's racket very long and steal coal and junk, because he sees bigger money in the stick-up game, and if you make a hit with the right mob, you're all set. 3 W e m a y n o w s u m m a r i z e this p a r t of t h e e d u c a t i o n of t h e c r i m i n a l . I t b e g i n s as p l a y , r a n d o m a n d u n d i f f e r e n t i a t e d , w h e r e " d e l i n q u e n t " a n d n o n - d e l i n q u e n t a c t i v i t i e s are i n t e r c h a n g e d w i t h o u t m u c h s e n s e of m o r a l values.

I n their r a n d o m m o v e m e n t s t h e c h i l d r e n c o m e in c o n f l i c t w i t h

s o c i e t y , n o t b e c a u s e t h e y are " b a d " b u t b e c a u s e t h e g a m e s t h e y p l a y , like " s n a t c h i n g " a p p l e s , are n o t a p p r o v e d . ^haw 2

and M c K a y , o p . cit., pp. 2 4 9 - 3 5 0 .

Ibid., p. 126.

3Ibid.,

T h e growing conflict m a y

p. 132.

62

CRIME AND THE

COMMUNITY

set afoot a differentiation between gangs who have acquired one set of games and a group who by accident or direction have acquired another. In addition there is the older boy, who has more experience, is more saturated in the tradition, and who "goes robbin' " both because it is a game and for a source of income, who passes the new games along to the younger children and with them the tradition of the group. This leads to further differentiation and habituation. And the little fellow as he grows older copies and follows the older members of his play group and learns to do what they do. He goes from apple stealing to shoplifting, from that to "rolling bums," from that to pickpocketing, from that to car stealing, to hold-ups, to murder. But all this gradation in crime is carried out in connection with other members of the play group; it is a collective enterprise. It has the approval of the play group, and the play group becomes the criminal gang by slow differentiation and habituation. The following quotation gives a good description of the process: M y start as a delinquent was as many more fellows started. It started with playing hookey from school. T h e n I was shown how to get cookies, cakes, and a lot of other things that can make the day nice for a young truant. T h a t was simple, the folks, having credit at stores paying every two weeks or month, were the goats. I would go into the store and ask for whatever I wanted, and when I got it all I had to say was put it on the bill and walk out. When the time came for the bill to be payed it was all marked in with the regular purchases and nothing was said.

From that it led on to taking pennies from

mother's purse, stealing junk from yards, etc. Then it started to be a habit of going through the brother's pockets while he was at work and taking change, a dime, fifteen cents, a quarter, and sometimes more; it all depended on how much change was there. T h a t served to give me enough courage to prowl a house when the opportunity came one day. I should have never did it alone, but being with one of my pals that was different.

T h a t led to heaving coal and

selling it, stealing pigeons and sometimes chickens and selling them;

also

hanging around Hiesler and Junge bakery and crawling through windows and stealing cakes and cookies, and also stealing and selling bicycles. And so it went, always increasing the value of the theft until it came up to where I was using a gun, and had dropped most of the petty things and was going after some real dough. 1 1

Ibid., p. 254. (Italics not in original.)

EDUCATION FOR CRIME

3. The Supporting

63

Elements

The development of the criminal career requires and finds in the immediate environment other supporting elements in addition to the active "criminal gangs;" to develop the career requires the support of middlemen. These may be junk men, fences, lawyers, bondsmen, "backers," as they are called. It requires dealers in the spoils of crime. It requires an atmosphere that has low resistance to delinquency. It requires an atmosphere where parents, or neighbors, or merchants, or politicians, or policemen, or some other group apart from the criminal gang itself, exist and by their very existence act as a feeder of, protector of, and contributor to the growing criminal careers. There would be no use in stealing lead pipe or copper wire or bicycles or merchandise if these things could not be sold. It would be useless to steal coal if the parents would not use it; if there were not an organized market for cars it would be impossible to steal automobiles as a profession. This is true of diamonds, watches, scarf pins, furs. The community must provide a means for disposal of the wares. The mere existence of these agencies assures the continuance of the careers which it feeds, supports, nourishes, and makes possible. The criminals who begin as children that "go robbin' " and who end by becoming "big shots" have this outlet. But the existence of such agencies implies and fosters the existence of others: "backers," lawyers, bondsmen, dishonest police, crooked politics. It is not too much to say that the development of the criminal career as here described is possible only because there are more or less wellorganized and recognized agencies that live off, and depend upon, the profit-making opportunities which the criminal supplies. The career as it develops finds therefore already in existence agencies that can and will utilize the little and big things that come to hand as a result of these activities and that in addition give a peculiar but well-defined atmosphere to the immediate environment within which the criminal develops. It seemed to me that many of the people encouraged young boys to crime by buying stolen articles. The junk yard dealers bought stolen junk. They never asked any questions. They didn't care how, what, or when the goods were gotten, just so they were able to buy them. Some of the money would go for the mothers and fathers of these children, and so nine times out of ten they will encourage the child's mind to work for easy money.1 1

Ibid., p. i2$.

64

CRIME AND THE

COMMUNITY

T h e g r o w t h of t h e c r i m i n a l ' s c a r e e r t e n d s to f u l f i l l t h e b e h a v i o r e x p e c t e d b y t h e older m e m b e r s in the e n v i r o n m e n t . I t m a y b e p a r e n t s w h o s h a r e the p o i n t of v i e w of the d e l i n q u e n t s a n d c o n t r i b u t e to it. T h e general point of view of the parents in these communities seems to be that thievery from a railroad is not wrong because it is a big corporation. Whole neighborhoods sometimes engage in stealing from the tracks. 1 I f the p a r e n t s d o n o t a c t u a l l y steal f r o m t h e r a i l r o a d c a r s t h e y m a y " i n some cases . . .

act as receivers for the stolen g o o d s . " 2

T h a t this

is n o i s o l a t e d i n s t a n c e m a y b e seen f r o m a n o t h e r q u o t a t i o n . Most of the loot was taken to the homes and disposed of through the parents. Cases of electric irons, which had been obtained by the boys six years before, were found in one of the homes. Fifteen yards of stolen linen was found in a cradle under an infant, and the mother of the baby was wearing stolen shoes. Dozens of cases of salmon, cartons of cigarettes, and boxes of shoes stolen three or four years before were discovered. 3 I f t h e r e are n o c o - o p e r a t i n g p a r e n t s f o r t h e g r o w i n g y o u n g d e l i n q u e n t s t h e r e a r e o t h e r s in t h e n e i g h b o r h o o d w h o l o o k w i t h k n o w i n g e y e u p o n their a c t i v i t i e s a n d p a y f o r the g o o d s a c q u i r e d in s t e a l i n g . I can not remember when I first started to stealing. It was as soon as I began to play around in the streets and alleys with my older brother and his pals. T h e y were stealing junk, lead pipes from buildings in the neighborhood, shoplifting, stripping cars and strong arming drunks. W e would go into a building and cut out the pipes and haul them to our hangout or a back yard. When we got a big pile we'd sell it to a junk man and then m a y b e break into his shed that night and steal it back and sell it to another junk dealer. 4 T h a t in a c i t y l i k e C h i c a g o t h e r e a r e a g r e a t n u m b e r of p o i n t s of c o n t a c t b e t w e e n t h e d e a l e r in j u n k w h o " w i l l a s k n o q u e s t i o n s " a n d the delinq u e n t is i l l u s t r a t e d b y t h e f a c t t h a t . . . the wagon peddler comes into direct relation with the boy and represents the chief point of contact between junk-dealing and juvenile delinquency. There are between 1,700 and 1,800 of these wagon peddlers in Chicago.

In

the past five years they have doubled in number, while the retail junk shops have increased only 50 per cent. 5 B u t it is n o t m e r e l y t h e j u n k d e a l e r ; t h e r e are o t h e r s a s well. b o y s , y o u n g a n d old, t o o k p a r t in t h i s k i n d of l i v i n g . . . . 1

Thrasher,

2

Ibid., p.

3

Ibid., pp.

op.

cit., p .

154. 154-155.

155.

4

S h a w

5

Thrasher,

and

M c K a y , op.

op.

cit., p.

cit., p p .

148.

"The

T h e y used to 1 1 8 - 1 1 9 .

EDUCATION FOR C R I M E stick up trucks and sell the stuff on M a x w e l l Street." 1

65 T h e entire at-

mosphere of a neighborhood may be such as to make certain delinquent behavior, and therefore the growth of certain attitudes and habits, perf e c t l y natural and consistent. The boys from sixteen to twenty use to hang around the corners and wait for some old drunkard whom they would beat and take from him whatever valuables he may have. People would stand by and stair and even laugh as the boys would rob the drunkard. This would happen during the day where everybody could see it and the older people only was amused by it.2 M o r e important than the actual depredations committed b y the y o u n g criminals are the attitudes they acquire toward the world and its w a y s . T h e s e activities which we have been illustrating can be seen relatively only, in terms of the mores of the group in which the life of the y o u n g delinquent develops. Here we must seek for the rationalizing attitudes that become a habit of mind, a philosophy of life, that become an insulating and protective covering for the career, and that provide that basis of evaluation which produces in the criminal a sense of incredulity when he is confronted with the mores of the community at large. T h e y o u n g delinquents acquire through their contacts and experiences an elaborate insight into crookedness, corruption, police bribery, fences, dishonest officials, unfair practices in the courts, political pull, the criminal code, jails, prisons, bondsmen, houses of prostitution, rackets, gangsters, the general hangers-on about the criminal courts, and the political rings. T h e y learn a v o c a b u l a r y that proves their insight, their knowledge of the c r a f t technique.

T h e y o u n g delinquent's ideas and

ideals, his beliefs, hopes, and ambitions, his loyalties, chagrin, sense of justice and injustice, are colored and heavily influenced b y the mores of his companions, his community. H e a l y and Bronner testify that The knowledge of graft in connection with a city hall, of laxity or venality in a public prosecutor's office, of loose administration of justice in a court (and one of the shrewdest policemen we have ever known has assured us the last point is of vast importance) are all influences that determine trends toward delinquency and crime. One may note this directly exhibited in individual and group lawlessness, and even in youthful self-justification in misdoing. Where community spirit in such matters is better, certainly delinquencies are commensurately milder.3 1Shaw

and McKay, op. cit., p. 126. Ibid., p. 125. 'William Healy and Augusta Bronner, Delinquents Unmaking, pp. 190-ipi. New York, 1926. 2

and Criminals,

their Making

and

66

CRIME AND THE COMMUNITY These elements in the mores are varied and extend to little things.

Such things as not paying car-fare m a y become a matter of tradition in a group. We traveled all over the city by bumming rides on trucks or sneaking into street cars. We never paid for anything because the guys razzed you if you couldn't get by without paying. It was smart to sneak into a crowded street car without paying. 1 T h e career of crime m a y be taken for granted, m a y be looked forward to as a natural w a y of living and making a living. Experience, conversation, acquaintanceship, occupational opportunities, attitudes, needs, and possibilities as seen by the y o u n g delinquent from his special point of vantage may all lead in the direction of choosing the career of crime; in fact, no other choice may present itself. " B y this time I had a confident feeling that I could steal and make a success of it. I knew dozens of other boys who were making a go of it, and felt sure that I could do it also." 2 And under the circumstances the risks are part of the occupation, are taken for granted. One might almost say that there is certain expectancy of risk. . . . There were about twelve guys in the gang, and we split up in small groups to go stealing. There wasn't a day that somebody didn't get pinched. You don't think anything about an arrest in that neighborhood.1 B u t as part of the mores, as part of the education, there grows up a certain awareness of e n e m i e s — r a t s , stool pigeons, detectives. " I got so I could not only spot a house detective a mile a w a y , but I could almost smell him. Y o u can tell them b y the w a y they a c t . " 4

4. The Hardening

Process

T h e delinquent's attitudes become crystallized and hardened b y the conflicts which develop between his gang and the rest of the community. T h e random play movements of the young gangs or their minor delinquencies bring them into conflict with other elements in the community. In so far as the play movements are natural, free, spontaneous, and random, the play group answers opposition b y older members of the i S h a w and M c K a y , op. cit., p. 123. I Quoted by Thomas and Thomas, op. cit., p. 102. 3 S h a w and M c K a y , op. cit., p. 120. (Italics not in original.) 4 Ibid., p. 236.

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community with reactions of hostility, anger, spite, deliberate mischief, or even damage. Such reactions are in themselves perfectly normal for the gang, and the step from these to actual delinquency is a step so narrow (and indiscernible) that it is easily made. When this step is taken as a part of spite (like breaking windows for being chased from a playground) or as a part of play (like going robbin'), then the conflict which follows becomes a conflict between two incompatible w a y s of using the material environment. Instead of yielding, that is, instead of accepting the way of the organized world, it becomes natural and normal for the children to resist. T h e resistance on the part of the youngsters takes the form of flight and aggression. On the part of the community it takes the form of chase and punishment. The actual cause of the difficulty, of course, is not taken into consideration. The cause is the resistance of a stable and organized world in a narrow space to the random and unorganized movement of overflowing and undirected young energy and interest. T h e conflict becomes one of wills. It becomes a conflict between peace and depredation, between order and disorder, between quiet and noise. T h e fact that the orderly world has not found acceptance for reasons which may be just in terms of the child's ultimate needs is beside the point. Once the conflict arises, it is easily translated into terms of good and bad, each side calling the other names equally ineffective and equally meaningless. This conflict may arise first over a question of school attendance: A t the present time, in other words, the persistent truant is up against the cold facts of a system that is hard to b e a t — o n e that does not solve its problems by ignoring him, but by p a y i n g persistent attention to him. A system that is inflexible, running squarely into a resistance that is unyielding, is bound to result in a personality distortion of some sort in the child w h o is fighting the system. T h i s clash of wills inevitably results in an attitude of resentment on the part of the child toward a system that he fails to understand.

This

resentment,

strong anti-social

we believe,

tendencies

exhibited

is one of the roots from which in the attitude

of most

develop

criminals}

The conflict may be with other gangs or with the stable world about them: In this ubiquitous crowd of children, spontaneous play-groups are forming e v e r y w h e r e — g a n g s in embryo.

Such a crowded environment is full of op-

portunities for conflict with some antagonistic person or g r o u p within or with1

New York Crime Commission, 1927 Report, p. 286. (Italics not in original.)

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out the gang's own social milieu. T h e conflict arises on the one hand with groups of its own class in disputes over the valued prerogatives of gangland — territory, loot, play spaces, patronage in illicit business, privileges to exploit, and so on; it comes about on the other, through opposition on the part of the conventional social order to the gang's unsupervised activities. Thus, the gang is faced with a real struggle for existence with other gangs and with the antagonistic forces in its wider social environment. 1

In fact, conflict is essential for the integration of the gang. It does not become a gang however, until it begins to excite disapproval and opposition, and thus acquires a more definite group-consciousness.

It

discovers a rival or an enemy in the gang in the next block; its baseball or football team is pitted against some other t e a m ; parents or neighbors look upon it with suspicion or hostility; " t h e old man around the corner," the storekeepers, or the " c o p s " begin to give it " s h a g s " (chase i t ) ; or some representative of the community steps in and tries to break it up. This is the real beginning of the gang, for now it starts to draw itself more closely together. It becomes a conflicts group. 2

An essential element in the life of the growing gang is war. It has to fight for its play space, for its instruments of sport. A boy is thrown out if he does not come to every meeting. T h e y keep a constant guard over their beach place, and the younger boys watch while the older boys play, and then the older boys watch while the younger boys play. T h i s watch is directed primarily against the interference of other gangs, but partly against police interference with crap games. One of the members of this gang showed the informant a large scar on the back of his head, received in gang warfare, and he was quite proud of this. 3

In addition it must fight for leadership. This conflict with other groups is repeated in turn within the group itself. Leadership can be established only by war. I can't remember very good of my first crime I committed. When I was a kid I used to fight. If you know anything at all about Chicago, you must understand that we were always

fighting

in that neighborhood.

First, we

fought for the championship of our block. Next, we fought to see which kid would be the king pin of his school. W e had gang fights and had all kinds of trouble keeping leadership over the different neighborhood. 4 1 Thrasher,

op. cit., p. 26. Thrasher, op. cit.. p. 30. 3 N e w Y o r k Crime Commission, 1927, op. cit., p. 369. 4 Shaw and M c K a y , op. cit., p. 120. 2

EDUCATION

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69

It is at this early stage in the career of the children that these attitudes of war become defined and w i t h t h e a t t i t u d e of conflict the differences in the mores b e c o m e s h a r p e n e d . I t is all p a r t of the education, an education in hostility and in l o y a l t y . I liked to go swimming and so did the other kids in the neighborhood like the same. So we would gather as many of the kids as we could and start for Lake Michigan and when we came to the negro neighborhood we would go into an alley and get a hold of some house bricks and clubs and stones and be ready for a battle. All the kids hated a negro and if any made an attempt to touch us we sure would give them a fight. T h e y used to bar us from swimming at the lake and would steal and burn our clothes up. So if they came in our neighborhood, we sure would mess up them tar babies. They sure would get slaughtered. 1 L i f e becomes at this e a r l y age an effort to escape f r o m interference b y those w h o would impose a f o r m a l p a t t e r n .

" F o r awhile m y life w a s

m a d e up of constant efforts to avoid the t r u a n t officer, the house detectives of the d e p a r t m e n t stores, a n d m y m o t h e r a n d brother w h e n I should h a v e been in s c h o o l . " 2 In e s c a p i n g f r o m those w h o w o u l d impose a f o r m a l order the children a c h i e v e a p l a c e in a g r o u p in conflict with the w o r l d about them.

T h e flight f r o m restraint, w h i c h in itself m a y be

innocent and natural enough, leads to a n escape to a group w h i c h is c o m m i t t e d to conflict and d e l i n q u e n c y .

T h e step f r o m a child hard to

m a n a g e to a child associated with a delinquent g r o u p is thus t a k e n w i t h o u t intent on a n y o n e ' s part, and h a s arisen out of differences in the degree of a c c o m m o d a t i o n to the f o r m a l institutions of the community.

T h e innocent t r u a n t w h o w e n t

fishing

b e c a u s e an older b o y

said " l e t ' s g o fishing" m a y end in a g r o u p that c a n be described in the following terms: This gang first had a tent in the backyard of the home of one boy, but because of disorderly behavior was put out by the boy's mother. Since then members have spent their free time around the docks, where they swim in New York Bay. Their delinquencies have been truancy, throwing stones at teachers, staying out at night, and robbing stores. All the members are known either to the Children's Court or to the Police Welfare Department. These boys are known to have committed a number of thefts. Four are known to have participated in a grocery store theft. T w o have been in the Children's Court five or six times and have been committed to a Protectory and recommitted for violation of parole. Another member has 1

Ibid., p. 122.

2

Ibid., p. 250.

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C R I M E AND THE COMMUNITY

been in the Children's Court three times and has been in a Children's Protectory. These are the older members of the gang.1 When the situation has developed to this sort of climax, the next step becomes inevitable. The formal agencies of the community are called in to deal with what is now a delinquent group. The disciplinary action taken by the organized agencies of the community crystallizes and focuses the educational influences in the developing career of the young delinquent. In another chapter the dramatizing effect of the first arrest has already been pointed out. Here are any number of more or less amorphous, random-moving gangs of children, all playing the same kind of games, all engaged in more or less the same kind of activity. Here is a group of children all of whom are guilty of stealing copper wire from a railroad car, or of sexual promiscuity. But by reason of accident, chance, opportunity, time, place, speed of legs, some are arrested, others are not. The children arrested suddenly discover an organized world with which they were unacquainted. Here is a world of policemen, police stations, truant officers, attendance bureaus, truant schools, juvenile courts, juvenile institutions, industrial schools, reformatories. What was fun, mischief, deviltry, bad behavior, toughness, has now become "crime." Suddenly a world that had no existence before except in the random conversation of older gangsters takes on reality. The boy arrested is suddenly subjected to a series of investigations, visits, interviews, examinations, tests, family histories, admonitions, threats, warnings, tears, pleadings, and punishments with which he had had little experience before. The world itself has become a different place, and he has suddenly achieved a different place in the world. The meaning of his activities has changed. He has changed, because the attitude of the world about him has changed to him. And all the enterprise, interest, concern, and diligence of the community is concentrated on him because he has been arrested for doing some particular thing, a thing that he has probably done a hundred times before and that other children in his group also have done, so that they are equally guilty. The relation between the child and the larger world has now been defined in terms that he barely suspected, and the definition is in terms of conflict. There are of course and have been for some years attempts, through various social agencies like the juvenile courts, to keep the definition of "criminal" down to a minimum. There are also attempts to mitigate ' N e w York Crime Commission, 1927 Report, p. 372.

EDUCATION FOR C R I M E

71

the experience by making it as informal as possible, and to reduce the effect of confinement by the use of other techniques. W e shall consider the nature and adequacy of these in another chapter. T h e fact remains that these efforts, even of the more recent type, have failed to make much headway against the impact of the method used by society in its dealing with the children who are arrested. T h e fact that a large proportion of even the best juvenile procedure fails is proof of that. 1 T h e failure is caused by the dramatization of the activity, the concentration, specification. Explanation lies in the focusing of attention upon the delinquent child in a way that sets him off in his own mind from the other children and makes him " k n o w " and " f e e l " bad. What was play and fun and mischief and robbin' has become crime and evil. This dramatization by the community of the activities of a child arrested, as against the activities of the other children not arrested, must be counted as a decisive step in the education of the criminal.

5. Imprisonment and

Education

Every time the apprehension of a child involves throwing him in contact with other young criminals who are confined together there is an increased stimulus in the education for crime. The mere assembling of a group of young delinquents, each with a varying experience and having a common unit of selection, having just been through the harrowing and dramatic experience of arrest, trial, conviction, brings to the front the thing most vivid in their recent life. It is the thing to talk about. It is the major subject of conversation. T h e very process of dramatization that has gone on has made the " c r i m e " the basic source of interest. " W h a t are you in f o r ? " is almost always the first question that the youngsters ask the new arrival. Experiences are exchanged, information is imparted. A completely new and varied set of stimuli is presented to the newcomer. He becomes acquainted with crimes that he had no notion of before. T h e institutional experience is thus a concentration of stimuli adapted to develop delinquent interests. T h e natural tendency to boast, show off, brag, leads to exaggeration and detailing. T h e younger children are bullied and impressed. T h e values in the group which come to the front are the deeds of daring, courage, bravery, toughness. The institution is just the place where the child has originally ' H e a l y and Bronner, op. cit., pp. 218-221. See Sheldon Glueck and Eleanor T . Glueck, joo Criminal Careers, p. 311 and pp. vii, ix. New Y o r k , 1930.

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random and uncrystallized attitudes t o w a r d himself and toward society emphasized.

W h e n h e r e t u r n s t o t h e c o m m u n i t y a n d h i s g a n g h e is

m u c h b e t t e r i n f o r m e d a n d b e c o m e s in t u r n a c e n t e r o f d i s s e m i n a t i o n a n d stimulus.

Thrasher points out that

T r a i n i n g in the gang is periodically interrupted b y visits to various correctional institutions. He [the gang member] comes to regard these as little more than side excursions and m a y even point to them with some degree of pride. A l t h o u g h they are designed to " r e f o r m " him, in most cases they simply speed the process of demoralization. 1 W h y should this not be so ? T h e children of c o m p a r a t i v e l y the s a m e a g e p a s s o n t o e a c h o t h e r in p l a y a n d c o n v e r s a t i o n t h e t h i n g s t h e y learned.

have

I n s t r u c t i o n s e e m s e a s i e r b e t w e e n m e m b e r s of t h e s a m e g e n -

eration : Influences seem to spread more rapidly laterally, as between members of a y o u n g e r generation, than vertically, as between members of different generations. T h e congregation, therefore, of bad b o y s in juvenile homes and reformatories has had unexpectedly bad consequences. 2 T h e s h a r i n g o f e x p e r i e n c e s in a j u v e n i l e i n s t i t u t i o n b r o a d e n s t h e w o r l d of the delinquent. D u r i n g the times while I was in the h o m e I met crooks of e v e r y creed and color. T h e y were there for every crime, running a w a y from home, bumming from school, taking automobiles, stealing from parents, shoplifting, breaking in houses and stores, petty stealing, and sex perversions.

It was a novelty to

learn that there were so many crimes and w a y s of stealing that I had never heard about.

I was green at first, and the b o y s petted and pitied me, but I

w a s well on the w a y to C r o o k d o m at the end of m y second month in that place. 3 T h e c o n v e r s a t i o n s n a t u r a l l y t u r n u p o n t h e a c t i v i t i e s of t h e p a s t , a n d the promises held out b y the future. A n d as the institutional experience m e r e l y tends to stimulate a n d e n h a n c e the v a l u e s of the p a s t b y talk, b o a s t i n g , a n d e x a m p l e , t h e e m p h a s i s u p o n t h e f u t u r e t e n d s t o b e in t h e v e r y t e r m s of t h e d e l i n q u e n c y t h a t b r o u g h t t h e g r o u p t o g e t h e r . A t work or at play out in the y a r d , the prisoners would form into small groups and talk about the " o u t s i d e . "

T h e outside that was so near, just

over the wall, and yet so far a w a y in time. T h e y would talk about w h a t they were going to do on release. M o s t of them planned vengeance and crime. T h e y 1 Thrasher,

op. cit., p. 369. and Thomas, op. cit., p. 96. 3 Clifford R. Shaw, The Jack Roller, A Delinquent Boy's Own Story, p. 58. Chicago, 1930.

2 Thomas

EDUCATION

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73

CRIME

would pull off a big deal and then retire in luxury. Even while in prison, which they hated, they did not think about being arrested again. Consequences didn't concern them much. T h e y thought only of getting by, and they were too egotistical to think that they would ever get caught again. It was only a " b u m r a p " that landed them in jail this time, and they would know better next time, so they thought. A few would talk about home and mother and going straight, but these were the younger crooks, and they usually got the razz from the older ones. 1 N a t u r a l l y , too, under the c i r c u m s t a n c e s , the p r o m i n e n t m e m b e r of the institution is the one who h a s a reputation for being s o m e b o d y . T o myself, I thought I was somebody to be doing a year in Pontiac, but in these groups of older prisoners I felt ashamed because I couldn't tell tales of daring exploits about my crimes. . . . So I kept quiet, happy enough to listen to the thrilling stories of adventure. " M i k e " O'Brien was one big hero in the place. He had done a lot of time and was in for big stuff and besides, everybody had read about his brother, Smiling J a c k O ' B r i e n , being hung for "picking off a copper." He was certainly looked up to for that. I admired him. I used to watch him all the time in the yard and in the mess hall. I couldn't help it. Something about him caught my eye every time I got close to him. T h a t wasn't only true in my case, but for everybody it was true, especially the younger crooks. 2 In addition to the i n c r e a s e d interest in crime, the grouping of older a n d y o u n g e r b o y s t o g e t h e r tends to s t i m u l a t e and i n c r e a s e sex perversion. T h e r e was lots of sex perversions in the form of masturbation and sodomy committed in Cottage " D . " T h e bullies would attack the younger boys in the dormitories and force them to have relations. Some of the boys caught venereal diseases and had to be treated. T h a t was very easy in a place like that, where there were a lot of boys living together in close quarters, especially where the older boys mingle with the younger ones. T h e younger ones get all the bad habits of the older boys, and sex habits are very common in every institution where boys or men are confined. I've seen lots of it. I knew little boys who had sex relations with four or five older boys every night. I t was easy in the dormitory to slip into another boy's bunk. 3 T h i s t y p e of evidence of the existence of a n d stimulus to p e r v e r s i o n c a n be q u o t e d f r o m m a n y s o u r c e s t h a t relate to the e x p e r i e n c e of y o u n g b o y s in juvenile institutions. ilbid., pp. 106-107.

A q u o t a t i o n s o m e y e a r s earlier t h a n the 2

Ibid., pp. 108-109.

3

Ibid., p. 69.

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CRIME AND THE

COMMUNITY

foregoing, and from New Y o r k instead of Illinois, corroborates what is well known, that the phenomenon is nation-wide. Of all the juvenile institutions I have been in, the New York

out

does them all for lack of moral and sociable training. T h e place is overridden with corruption. I have seen and heard of more sodomy committed in that institution than I have while in the House of Refuge or during the four years and a half that I have spent in the New Y o r k Juvenile Asylum. 1

One way of estimating the bearing of the juvenile institutional experience is to examine what the professional criminal looking back upon the juvenile institution says of it. Without exception, when he can be persuaded to express his opinion, he states it in terms that reflect the increased stimulus toward his career as a criminal. He says over and over again, in effect if not in words, that the experience in an institution at an early age provided a decisive impetus to his development. He learned new ways of committing old crimes, as well as new crimes. His former admiration for the successful criminal was strengthened. He was personally degraded by new habits of vice, whether acquired willingly or forced upon him. His resentment against authority grew to overpowering proportions. Here are statements from men in Sing Sing and Auburn prisons, collected in 1 9 1 6 : [ R E A S O N S FOR BECOMING A C O N V I C T ]

It is largely due to what I learned in N e w Y o r k

. I have been in 4

prisons in this state, have spoken to all kinds of men but have never spoken to a man that could tell me something I did not hear or see while I was in Y o u may think this is a strong statement, but it is true. I got an idea that crooks made an easy living and got a w a y with it from hearing about stealing in the State Industrial School at Rochester. . . . reformatories are perfect hell holes for immorality and vice.

They

teach young boys silent vices and sins with one another and learn them to become expert robbers, pickpockets, burglars and thieves in general. B a d company and House of R e f u g e ; that's where I learned to be a real professional thief. I went out of there with the ambition to become a great thief and wound up here with 7 years. I had a real old fashioned course in House of Refuge. Permit to say that that last question is superfluous when applied to anyone who has been confined in any or all of the minor institutions or reformatories. A better name 1 Unpublished documents from prisoners in Auburn and Sing Sing prisons in possession of the author, No. 63, p. 13.

EDUCATION FOR C R I M E

75

would be deformatories, for unless a youngster has an exceedingly strong character, he is well on the road to the '"Gray Brotherhood" for degeneracy and degradation, these reformatories stand alone. I venture to say that 70% of the youngsters having had a course in an institution, wear the convict uniform in this state or elsewhere. Some of the things practiced in reformatories aren't fit to mention. They spell degeneracy with a large " D . " [INSTITUTIONAL

EXPERIENCE]

. . . I was and am still able to converse with any ex-inmate of the above named institution with my fingers, which was the method the boys had for transmitting and receiving messages to one another in church, school, dining room or any other place where silence was the rule. I was not fit, morally, to associate with the innocent boys or girls after I left there. . . . The boys when idle and too tired to play any more begin telling stories of all kinds, immoral and thievery seems to be more interesting to them than any others. They tell one another their experiences of all the good times they had with their ill gotten gains. The bad side is seldom told and the poor and inexperienced boy will see, so he believes, the light whereas he too can make money easily and enjoy life. Talk about your Fagans. A Fagan by the way is one who teaches another how to steal and everything the pupil steals he must return the same to the teacher or Fagan. The Fagan protects his pupils as much as he can. In case of an arrest a good lawyer is retained, etc. Well, the boys in the majority of our juvenile institutions teach other fellow inmates the art of thievery. W h y ? Why, simply because they have nothing else to do to occupy their time. I have ofttimes dwelt upon the problem of juvenile delinquency and I can safely say, without fear of successful contradiction that the morals of fifty per cent (a very low figure) of the boys confined in this institution, are corrupted to such an extent, that it takes years to undo the evils of a few months. One fact that deserves special attention is the utter lack of system in the classification of youngsters seeking admittance to this preparatory school. I venture to say that this school has prepared more students for the colleges [prisons] than any other institution of its kind in the state. . . . A kiddie learns more wicked things in a year, in this institution than he could possibly learn in five years outside. Q. Did the institution help you in any way ? A. Of course, didn't it help me to become a member of Sing Sing? If the superintendents (past and present) had done their work properly, somebody would have to advertise for students to populate this "monastery." 1 1

E x c e r p t s f r o m u n p u b l i s h e d d o c u m e n t s f r o m prisoners in A u b u m a n d S i n j Sing prisons

in possession of t h e a u t h o r .

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C R I M E AND T H E COMMUNITY

When questioned about the accuracy of his delineation of the influences of a certain New York juvenile institution upon the careers of its inmates one prisoner replied, " B u t remember there are about two thousand men in our prisons who are graduates from there so if you doubt my word ask them." 1 These testimonies in 1 9 1 6 do not differ in essentials from the material gathered by Shaw and M c K a y in their studies of 1928-1929. The juvenile institutional experience is in a sense the climaxing of the training received in the gang, and lays the basis for the future career of the criminal more securely than ever. In addition to the concentration of delinquent stimuli, the institutional experience also concentrates the conflict with authority that plays so large a role in the development of the delinquent career. In the juvenile institution the old hostility between organized authority and the delinquent and his gang is continued, at an even greater tension. In the outside world authority can be escaped by hiding, simulation, running away. The outside authority is intermittent. The policeman is in view only occasionally. But in the institution the authority is ever present and no escape is possible. The guards and the superintendents stand for restraint and lack of freedom, and the conflict with society continues under greater irritation. In both instances, therefore, in terms of delinquent habits and of attitudes, the institutional experience tends to harden and solidify the experience in the gang and to make the career of the criminal by so much the more natural, the more inevitable. The juvenile institution must take its place as an important link in the influences that educate the young delinquent and make a professional criminal out of him. These are harsh words against institutions devised as a basis of reform. But the fact was overlooked that the congregation of boys of comparatively the same age with a common interest would inevitably act to increase the stimuli for the thing which they all had in common. It was also overlooked that the confinement would produce a "fight situation" and that such a situation was destructive in its impact both upon the youngsters and upon the officers. This situation has been well described by Thomas. When the young person is deprived of liberty and incarcerated the situation assumes the form of a fight. It is evident that a fight is not a socializing procedure, not favorable to the transmission of good influence. Furthermore, in order to carry on this fight it is necessary to have a prison personnel, guards and wardens who are able to take the situation as a fight. The attendants 1

Ibid.

EDUCATION* F O R

CRIME

77

will therefore tend to be or become hardened persons. There is even a considerable unconscious recruiting of sadists for these positions in the prisons. 1 A prisoner in a N e w Y o r k State prison confirmed T h o m a s ' s statement b y s a y i n g of his own experience as a child, I am no penologist and don't profess to be one; but I will state a few facts that comes from past experiences and knowledge my reason of the cause, of at least sixty per cent of the crimes in the City of New York and that is—the brutal and inhuman treatment that is administered to the boys of our juvenile institutions. In other words, they are nothing more nor less than breeding places for crime. The majority of such institutions has but one system for the reformation of juvenile delinquents and that is to put the fear of God into every boy received in them which is done in various ways, of that later. The constant fear of being punished, which in most cases is nothing less than torture, for the most trivial infraction of the rules and regulations of the institution is more detrimental to the future welfare of an inmate than the rest of the ill treatment combined. 2 I t is not necessary to go into elaborate illustrative e x a m p l e s of the technique of punishments in juvenile institutions. T h e r e h a s been considerable improvement since 1 9 1 5 , and these examples r e f e r to some y e a r s earlier when the men now practising the art of being p r o f e s s i o n a l criminals were children. T h e s e are the records of the p r o c e s s of education of the present older generation among the criminals. T h e question of penal administration is l e f t f o r another section of this b o o k ; here we merely note the f a c t that the juvenile institution tends to continue the conflict between society and the criminal, and to m a k e that conflict even more intense and self-conscious than b e f o r e . One of the prisoners S h a w interviewed said of his e x p e r i e n c e s : During the five months' imprisonment I worked as an errand boy part-time, and went to school. Discipline was so strict throughout the institution that a boy could not even talk, and there wasn't any interesting recreation or diversion. The boys all hated the place, and guards were hard boiled, and severe punishment was inflicted for the least infraction of the rules. For each misdemeanor a boy received a mark against his conduct, and it is removed by strenuous exercise, and if you were slack you would be anointed with cowhide, and they weren't any too gentle about laying it on. The most common kinds of punishment were muscle grinders, squats, benders, standing in corner, whipping, confinement in " t h e cage," chewing soap, being deprived of food and 1

T h o m a s and Thomas, op. cit., p. 106. 'Unpublished document in the author's possession.

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sleep, strenuous labor, and making the sentence longer. Many times I experienced these forms of torture. 1

Another prisoner in New York, recalling his own experience in a juvenile institution when he was a youngster, said, . . . The above named instrument [cane] is used in all cases of "mopping." Mopping is administered in various w a y s — t o wit—across the palms of the hands, across the back of the hands. Sometimes both ways. Every time a boy pulls in his hands he receives a blow across the head or back or both, in place of it. In a good many cases the boy's hands are swollen, bleeding and blistered after such punishment. Another way is to make a boy stand on the gutter or block with his hands, containing snow or a piece of ice, outstretched until melted. Then he is taken to a room called " T h e Fly R o o m " so named because the rod certainly does fly there and then blow after blow is dealt upon the frozen hands. Can you imagine how painful that is? If not, then let a piece of ice or snow melt in your hand until the hand is almost frozen and then give it a slight tap with any kind of a cane and you will get some idea how painful such treatment is. Another form of mopping is to make a boy bunch his fingers in a way that the tips of them will be up when he holds them out. Then he is struck upon the tips of his fingers. The result of that kind of punishing is, in some cases, the ruining of their fingers permanently, and in the majority of them temporarily. Then there is another kind that is as painful, if not more so, than the other forms of mopping, that is a mopping across the bottom of the bare feet. One kneels down to receive that kind of mopping. There is another called, in the language of the institution " a barey" administered by making the boy strip himself of his clothing then he stands before his torturer with no more clothing on than he had when he first came into this evil world of ours waiting for further orders. Then the poor unfortunate boy is showered with blows from a tape covered cane or rattan upon the behind, back, every place on the body of the boy the brute cares to strike and where it will give the brute the most satisfaction. It was a common thing to see every night, after evening prayers, twenty-five to thirty men standing in the hallway leading to the dormitories and the Assistant Superintendent's office waiting to be punished before going to bed for one thing or another. The same can be said of the Sunday afternoon service. 2

These evidences of the type of practice and influence in boys' reformatories of some years ago are shown to have continued to 1928: 1Shaw,

op. cit., pp. 62-63. 'Unpublished document in the author's possession.

EDUCATION" FOR

CRIME

79

A subsequent visit to the school on April 23, 1928, revealed the fact that punishments, corporal and otherwise, are very much more severe than they were in November. T h e half basement under the bakery has been made into a guard house, or " j a i l . " There are three rooms in this place; one good-sized outer room where the jailer and his assistants are stationed, a slightly smaller room, with an iron-barred door where most of those confined in the jail are kept, and a small room, with no outside wall, reserved for those whose punishment is particularly severe. In the larger jail room were about fourteen or fifteen boys. Neither cots nor mattresses are provided. Boards have been nailed together and are laid down on the concrete floor. E a c h boy is given two blankets for his comfort while sleeping. All of the boys in jail were barefoot. T o make identification easy in case of escape, two swaths had been cut with barber's clippers through each boy's hair, meeting at right angles on top of the head. T h e length of stay in jail varied. One case was reported in which a boy had been kept 32 days. T h e acting managing officer said that the usual stay was about a week or two. Most of the boys in jail had been strapped before being locked up. Again, the amount of punishment varied. One boy said he had received 28 licks. T h e jailer told the writer that the usual practice was to give a certain number of licks (differing in relation to the assumed seriousness of the boy's misconduct) for the first offense. For each subsequent offense, the number given is double that administered on the occasion just preceding. In answer to the question: " H o w many do y o u sometimes g i v e ? " the answer was, " W e l l , we gave one boy 75 t o d a y . "

Within the small room mentioned a b o v e — a room probably 6 b y 9 f e e t — four boys were confined. T h e y were said to be particularly vicious, had been immoral, had run away, assaulted guards, etc. In each corner of the room is an iron pipe attached to the floor and ceiling. These boys were handcuffed to the pipes, and were kept thus manacled night and day. These boys have two blankets, but have to sleep on the concrete floor. T h e jailer said that boys were usually handcuffed here for ten days. One case however, was reported by a former employee in which two boys had been handcuffed to the pipes for three weeks for the offenses of homosexuality and running away. A fifth boy had his hands thrust through the bars of the jail door and handcuffed together. Since he could not sit or lie down he was probably released from that position at night. 1

T h e impact of association with other delinquents and the conflict with the officers, whether or not there is the brutal form of physical punish1 Clifford R. Shaw and Earl D. Myers, " T h e Juvenile Delinquent," Ch. X I V of Illinois Crime Survey, pp. 716-717.

The

80

CRIME AND THE

COMMUNITY

ment described in the quotations above, contribute to the continuance of the delinquent career on release. T h e influence of institutional experience in perpetuating the career of crime is indicated by the following statement from a boy who has gone from one institution to another and has neither hope nor expectation of reform. M y first institution was the truant school. A t my age of n - J years old. Society has denied me my freedom because I did not like to go to school. I was caught cussing one day. For that bad word I have said, they put a piece of soap in my mouth for one hour. For making an attempt to escape, I was put in plane [plain] room with bars on the windows, no heat, no bed to lay on, no slippers or shus to wear, with mice running all around me day and night. N o cloths to wear but a nightshirt. This was in the month of February. So you can imagine how I have felt. . . . M y second place was the Orphan home, at my age of 13 years old. Spent there two years. I was there about two weeks when a little lad has run out to get some apples. Another little lad has seen him. He went out and told the overseer about it. I told the little lad why has he told on him for. For saying that to this lad I get my punishment. I was taken into the assembly hall. And beat up something terrible. Which I could scarcely walk for 4 days afterwards. . . . M y third place was N e w Y o r k C i t y Reformatory at my age of 16 years old. I was sent there for disorderly conduct. I have spent 9 months and 8 days there. Y o u cannot learn anything there for your good. It was a school for teaching crime. And revenge on society. T h a t ' s all you can learn from older men. Nothing good. . . . M y fourth place was in N e w Y o r k C o u n t y Penitentiary for one year at my age of 17 years old. I went there with a bullet wound in my right hand. I have been getting it treated for two months. And my two officers in my shop took pitty on me, because I was a young lad and thrown in among the old men. Every day they would ask me how my hand was getting along. . . . M y next place was Sing Sing Prison, to 5 years, at my age of 18 year? old. T h e y doubled me upon a lad that is in the crazy house now. I have spent three nights in that cell when this Lad ask me to commit sodomy. I refused him. I told him never to talk to me again. So I wrote a note that night to the hall keeper asking him to single me out it did not do any good. T h e fourth night I have felt sick from smoking too much when this evil-minded wretch thought he had the best of me that night. H e has come up on my bed and tried to compell me to do it. I just throw him on the floor and started to fight with him. . . . . . . And treated like a beast I am going to act like a beast . . . what's left for me to do. I have lost time in Sing Sing which I cannot get back. I have five months more for parole. If I make it I will be taken from one hell into

EDUCATION another.

FOR

81

CRIME

I h a v e t o g o to t h e N e w Y o r k p e n i t e n t i a r y f o r o n e y e a r , a f t e r I g e t

t h r o u g h here. C a n society expect me to reform.

I n t h e first p l a c e I c o u l d n o t

r e f o r m if I did t r y . I w a s t o l d r i g h t in m y f a c e w h e n I c a m e out t h e y w i l l send me right back.

I will tell y o u if I g e t b o t h e r e d w h e n I g e t o u t it w o n t b e well

f o r t h e o n e t h a t b o t h e r s m e a n d it w o n t b e w e l l for m e . m o r e . O n e or t h e o t h e r l i b e r t y o r d e a t h .

h a v e t a k e n it b e f o r e a n d c a n t a k e it n o w . . . . one institution to another. 5 different places.

But I dont care any-

I a m reddy to take what's coming, I I h a v e c o m e out a n d g o n e f r o m

I a m o n l y a b o y of 20 y e a r s of a g e . I w e n t t h r o u g h

I g o i n g t h r o u g h m y s i x t h a n d b e f o r e I a m a f r e e m a n I will

h a v e g o n e t h r o u g h seven i n s t i t u t i o n s . 1

BIBLIOGRAPHY BOCARDUS, EMORY STEPHEN. The City Boy and his Problems. Los Angeles, 1926. BRIDGES. KATHERINE MAY BANHAM. " F a c t o r s Contributing quency.'' Journal of Criminal Law and Criminology, Vol. 17 BURT, CYRIL. The Young Delinquent. D . Appleton & Co., N e w FORBUSH. WILLIAM B. The Coming Generation. D . Appleton 1912.

House of Ralston, to Juvenile Delin( 1 9 2 7 ) , pp. 31-80. Y o r k , 1925. & Co., N e w Y o r k ,

FURFEY, PAUL H. The Gang Age. T h e Macmillan Company, N e w Y o r k , 1926. HALL, JEROME. Theft, Law and Society. Little, Brown & Company, Boston, 1935. HARTWELL, SAMUEL WILLARD. Fifty-five Bad Boys. Alfred A . K n o p f , N e w Y o r k , 1931HEALY, WTLLIAM, and BRONNER, AUGUSTA. Delinquents

and Criminals,

their

Making

and Unmaking. T h e Macmillan Company, N e w Y o r k , 1926. Illinois Association for Criminal Justice. The Illinois Crime Survey. Chicago, 1929. Especially Ch. X I V , " T h e Juvenile Delinquent," by Clifford Shaw and Earl D . Myers. SHAW, CLIFFORD R . Delinquency Areas. T h e University of Chicago Press, Chicaco, 1930. The Jack Roller, A Delinquent Boy's Own Story. T h e University of Chicago Press, Chicago, 1930. SHAW, CLIFFORD R., and MOORE, M . E. The Natural History of a Delinquent Career. T h e University of Chicago Press, Chicago, 1931. SHAW, CLIFFORD R . , and M C K A Y , HENRY D .

" S o c i a l F a c t o r s in J u v e n i l e

Delin-

q u e n c y . " National Commission on Law Observance and Enforcement, Report N o . 13, on The Causes of Crime, Vol. I I , Government Printing Office, Washington. D . C . , 1931. State of N e w Y o r k . Reports of the Crime Commission. Legislative Documents. Especially 1927-1928. SuLLENGER, THOMAS E . Social Determinants in Juvenile Delinquency. Douglas Press, Omaha, 1930. THOMAS,

WILLIAM

I., a n d

THOMAS,

DOROTHY

SWAINE.

The

Child

in

America.

A l f r e d A . K n o p f , N e w Y o r k , 1928. THRAÜHER, FREDERIC M . The Gang. T h e University of Chicago Press, Chicago, 1927. ' U n p u b l i s h e d document in possession of the author.

CHAPTER

IV

• Organized Crime

1. Crime as a Livelihood The criminal career must be looked upon not merely as a way of life but also as a means to a livelihood. The individuals who follow crime as a career are motivated by monetary ends. They make their living at it. Such success or failure as they achieve is measured largely by monetary standards. This fact helps to explain the assiduity with which the career is pursued. The criminal must meet his bills—for food, and rent, and clothing, for all the items that go into his standard of living—from the income he derives from his illicit activities. In view of the fact that only a few crimes net any considerable sum, the pressure of this necessity forces the individual to pursue his activities with the relentlessness of a man seeking to keep hunger from his doorstep. The questions of why he chooses this way to a livelihood rather than another can be answered only in terms of the habituation and technique that have become his. The fact that he does pursue it almost without let-up in spite of risk, danger, pursuit, arrest, imprisonment, and the prospect of an early death reveals merely the potency of an integrated habit system in the life of the individual. In this the criminal may be compared to the struggling members of the overcrowded legitimate professions. Few enter other, possibly more profitable occupations; they lack the desire, the opportunity, the knowledge, or they prefer the accustomed to the new. We have already seen how the habit system gets built up. We may now see how it operates. Being a criminal for a livelihood means literally working at i t — d a y in and day out. A few examples will make that clear. The first is from a prisoner who confessed all the crimes he could remember having committed between January 1913 and April 1 9 1 8 — a period of five years and three months. He remembered forty-nine specific crimes scattered over Philadelphia, New York, Brooklyn, Newark, Boston, Washington, D. C. Intervening in this five-year period were nearly four years' imprisonment in four different commitments, two in Pennsylvania, one in New York, and one in Rhode Island. The crimes confessed to were therefore committed in the year and a half of freedom which this man enjoyed. A recital of the acts gives the definite impression of working at a trade:

ORGANIZED

CRIME

83

The crimes I confess to are as follows: From Department Store A, Philadelphia, Pa., at least five larcenies of merchandise (men's overcoats and raincoats), approximate value $500, January, February, and March, 1 9 1 3 . From Department Store B, Philadelphia, Pa., at least five larcenies of merchandise (men's overcoats and women's kimonos), approximate value $2500, January, February, and March, 1 9 1 3 . (Arrested March 18, 1 9 1 3 , assault and battery with intent to kill; convicted and sentenced on same, courts of Philadelphia, Pa., M a y 2, 1 9 1 3 , to Pennsylvania State Reformatory, Huntingdon, Pa. Released J u l y 29, 1 9 1 4 . ) From Department Store A, Philadelphia, Pa., at least three larcenies of merchandise (men's and women's fur coats), approximate value $ 1 2 0 0 , December 1 9 1 4 and January 1 9 1 5 . From Department Store B , Philadelphia, Pa., at least four larcenies of merchandise (men's overcoats, man's fur coat, and women's fur coats), approximate value $1,000, December 1 9 1 4 and J a n u a r y 1 9 1 5 . From Department Store C, Philadelphia, Pa., at least three larcenies of merchandise (men's overcoats and women's French nightgowns), approximate value $500, December 1 9 1 4 and January 1 9 1 5 . (Arrested January 1 2 , 1 9 1 5 , Philadelphia, Pa., attempted larceny; convicted and sentenced January 19th, one year, to Philadelphia County Prison, Holmesburg, Pa. Released November 19, 1 9 1 5 . ) From Department Store C, Philadelphia, Pa., at least three larcenies of merchandise (men's overcoats), approximate value $200, December, 1 9 1 5 . From Department Store D, Philadelphia, Pa., at least three larcenies of merchandise (men's overcoats), approximate value $200, December 1 9 1 5 . From Department Store E , New York City, at least three larcenies of merchandise (men's and women's fur coats), approximate value $2,000, January and February 1 9 1 6 . (Arrested February, 1 9 1 6 , New York City, unlawful entry; convicted and sentenced to New York County Penitentiary, indeterminate sentence. Released on parole August 23, 1 9 1 6 . ) From Department Store F , New York City, at least two larcenies of merchandise (men's fur coats), approximate value $300, December 1 9 1 6 . From Department Store G, New York City, at least two larcenies of merchandise (men's fur coats), approximate value $200, December 1 9 1 6 . From Department Store H, Brooklyn, N . Y . , at least three larcenies of merchandise (men's and women's fur coats), approximate value $600, December 1916. From Department Store I, Newark, N . J . , at least three larcenies of merchandise (men's overcoats and fur coats), approximate value $400, December 1916.

84

C R I M E AND THE COMMUNITY

From Department Store J , Boston, Mass., two larcenies of merchandise (men's overcoats and women's fur coats), approximate value $1500, January 1917. (Arrested January 2 3 , 1 9 1 7 , Providence, R . I., two larcenies; convicted and sentenced to Providence County Jail, January 24. Released February 1 9 , 1 9 1 8 . ) From Department Store K, Philadelphia, Pa., three larcenies of merchandise (men's fur coats), value $450, March 1918. From Department Store L, Washington, D. C., two larcenies of merchandise (ladies' waists and women's fur coats), approximate value Siooo, March 1918. From Department Store M, Washington, D. C., one larceny of merchandise (man's fur coat and woman's fur coat), approximate value $ 1 7 5 , March 1918. From Department Store N, New York City, one larceny of merchandise (women's fur coats), approximate value S1500, April 1918. From Department Store O, New York City, one larceny of merchandise (man's fur coat), value $185, April 1918. (Arrested April 10, 1918, New York City, violation of parole; returned by order of New York Parole Commission to New York County Penitentiary. Release scheduled February 1919.) 1 T h a t this is a typical instance is verified b y the evidence of other individual criminals whose life activities can be had. T h e following citation from Thrasher about the Tessler gang in New Y o r k City over a period of eight and a half months is characteristic. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 1

Feb. 2, 1925, Holdup of Interborough ticket agent: $252. Feb. 10, 1925, Interborough ticket agent: 8160. Feb. 17, 1925, Interborough ticket agent: $54.60. Feb. 17, 1925, Station agent: $312.40. Mar. 2, 1925, Doctor: $150, watch, jewelry. June 29, 1925, Gas station: $225. May 10, 1925, Publishers: $9,000 (inside man). June 24, 1925, Gas station: $35 (in stolen car). June 29, 1925, Gas station: $225. June 29, 1925, Gas station: $250. July 7, 1925, Gas station: $ 7 1 . July 21, 1925, Gas station: $49. June 16, 1925, Subway agent: $42. July 2, 1925, Subway station: $ 1 3 . July 16, 1925, Same station; same agent: $282. Feb. 3, 1925, I. R. T. station: $270. Sept. 1, 1925, Dentist: $165, jewelry; patient shot.

Unpublished document from a prisoner at Blackwell's Island Penitentiary in possession of tbe author. Names of stores have been deleted.

ORGANIZED

CRIME

85

18. 19. 20. 21. 22.

Sept. 2, 1 9 2 5 , Store: $ 5 8 ; clerk shot in arm. Sept. 27, 1 9 2 5 , Drug store: $ 1 0 0 . Oct. 6, 1 9 2 5 , Drug store: 8 1 3 5 . Oct. 7, 1 9 2 5 , Pursuing motorcycle patrolman shot at. J u n e 2 1 , 1 9 2 5 , Poolroom.

23. 24. 25. 26. 27. 28.

Oct. Oct. Oct. Oct. Oct. Oct.

9, 1 9 2 5 , Drug store. 9, 1 9 2 5 , Druggist. 14, 1 9 2 5 , Drug store. 14, 1 9 2 5 , Drug store: $40. 1 4 , 1 9 2 5 , Drug store: $65. 14, 1 9 2 5 , Hardware store: $ 1 9 0 .

T i m e : 8^ months. Crimes: 28. Total ascertained money loot, $ 1 2 , 1 3 4 . 1 N e w s p a p e r reports r e p e a t e d l y i n d i c a t e this c h a r a c t e r i s t i c b e h a v i o r of c r i m i n a l s : T w o youths who were arrested yesterday on complaint of John Lynch of 408 E a s t Sixty-Fifth Street, told the police that they had committed 100 burglaries of apartments in Manhattan and the Bronx. . . . T h e youths said they had stolen some $30,000 worth of property since starting their criminal career. 2 T h e p r o f e s s i o n a l c r i m i n a l w o r k s a t his t r a d e .

N o other w a y

d e s c r i b i n g his p e r s i s t e n c e in the f a c e of opposition c a n be g i v e n .

of

Once

the c a r e e r h a s t a k e n s h a p e , it is p u r s u e d with a sort of p r o f e s s i o n a l c o m p e t e n c e a n d p o s s i b l y e v e n pride. T h e a r r e s t s a r e interludes in the c a r e e r r a t h e r t h a n a c a u s e f o r c h a n g i n g it. For the fifth time since 1 9 2 1 and for the third within the last month, Federal narcotic agents under Joseph A. Manning appeared yesterday before a United States Commissioner with M . H. (One-eye Maxie) Gordon, St. Louis gangster, who has a long record of arrests and bail jumping. He now is alleged to be the head of a narcotic ring supplying drugs to N e w Y o r k , Chicago and Hollywood. In the last three raids which resulted in his arrest, two in New York and one in Chicago, Federal agents said they had seized narcotics which, when cut, would have retailed at more than §150,000. In the last raid, Friday night, at 1 4 6 West Ninety-fifth Street, Manning said he found telegrams which indicated that the prisoner supplied drugs to persons in the motion picture world in Hollywood. Federal Attorney Tuttle, pointing out that the prisoner's entire stock of narcotics and his cutting plant had been seized in the previous raids, commented on the apparent facility with which Gordon had obtained new supplies. 1

Thrasher, op. cit., pp. 424-435.

2

New York Times, July 13, 1931, p. 19.

86

CRIME AND THE COMMUNITY

He expressed the belief that the seized drugs had been smuggled into this country by a European ring. T o make sure that the prisoner would not continue his operations Commissioner Cotter set his bail at $60,000. Gordon, who could furnish no bond, was taken to the Federal House of Detention. He waived examination and will plead on Monday to an indictment based on his fourth arrest. Gordon, according to Manning, was arrested in Chicago May 8, where he was held in $35,000 bail for a hearing. Business, however, soon brought him to New York. In Chicago Manning and two of his assistants had seized thirtyfive pounds of opium and sixty-four ounces of morphine. But evidently Gordon's supply was not exhausted. Four days later at 1274 Fifth Avenue, where Gordon kept a cutting plant in Apartment 65, Manning and his men found 200 ounces of morphine, worth $85 an ounce, wholesale, and fifty pounds of gum opium valued at $30 an ounce. In the raid Manning also arrested Gordon's brother-in-law, Jules Goldberg, alias J. D. Zeiden, J. Lane, L. Dura and David Goldberg. Goldberg and Gordon were freed in $15,000 bail each, but Manning and his men watched them carefully. Meanwhile, last week a Federal grand jury handed up an indictment against Gordon, charging violation of the Miller-Jones narcotic act. Samuel G. Kleid, Assistant United States Attorney, who questioned Gordon, said that the prisoner had shipped from 100 to 300 ounces of morphine and heroin weekly to various places throughout the country. . . . Gordon, who also is known as John Davis, Frank C. Gordon, John Mall and H. M. Miller, earned the sobriquet One-eye Maxie when his left eye was shot out in a fight with the "Egan Rats of St. Louis" in 1920, according to the agents. In 1921 he was arrested here with two trunks filled with narcotics. He jumped bail of $3,000 under which he was released. In 1926 he was arrested on a narcotic charge in Chicago and on April 21 began service on a four-year sentence. He was released from Leavenworth June 18, 1929. His next arrest was in Chicago. Outstanding bail bonds ordered against him to date total $110,000.1 T h e criminal who follows the career as a means of livelihood develops an economic attitude towards it. H e s p e a k s of it in terms no different from those employed b y the professional in other fields of endeavor. T h i s point is stressed because it is f u n d a m e n t a l to an understanding of the problem of crime to see that the criminal takes his " w o r k " as a matter of course, as a w a y of life, and a s a means to a livelihood.

The

following quotation reveals clearly that the man w h o practices the art of picking pockets learns to speak of it in terms peculiar to the trade, 1New

York Times, June 15, 1930, p. 3.

87

ORGANIZED CRIME

with a specialist's insight into its specific problems, and with that sense of specialized technique that reveals a complete mastery of the mysteries of the c r a f t . I worked State Street different times by myself and made barely a living. I didn't have the success that Harry had. Well, I worked at that for a while till 1 had confidence in myself, and thought I could support a troupe. By having a troupe makes it so much easier to pick a pocket. I didn't have confidence in myself that I could steal good enough to support a troupe, but after working alone for a while I decided to give it a whirl. I asked two pickpockets who weren't working at the time and who were not very well known, to take a trip to Detroit with me. They were scared to go out of town, not knowing nothing of my ability, and suggested that we work around Chicago for a while. After working with them a short time, we left town. I found the work very much easier having some assistance. There is different "offices" used by different sets of pickpockets. The old-fashioned set seems to be used by the old-fashioned pickpockets, is of letting one another know when they have retrieved a man's valuables. When a " m a r k " is "clipped," you make a peculiar sound by sucking in the breath through the lips. That signals to the " s t a l l " that you have relieved " J o h n " of his wallet, and you step right over to the next "mark." 1 T h e best evidence, perhaps, that criminal activity must be considered primarily as an economic enterprise, as a means to a livelihood, is the fact that a criminal will o b e y p r a c t i c a l l y all laws save those which interfere with his professional pursuits. 2

2. Organized

Activities

Criminal activity as an economic enterprise requires organization. T h e commission of a crime is usually a co-operative effort. It is planned and executed b y more than one person. A f t e r the crime itself, disposal of the goods involves further co-operation with middlemen.

If

the

criminals are caught there are elements t h a t must come into p l a y : the bondsman, the criminal l a w y e r , the politician are required to lend their aid and assistance.

In addition there exist a host of persons more or

less directly connected with the business of crime w h o in one w a y or another draw part or all of their income f r o m illegal enterprise.

There

m a y not exist an organized criminal community that embraces all the illegal activities perpetrated, but there does exist organization, more or 1 2

Shaw and McKay, " Social Factors in Juvenile Delinquency," p. »37. New York Crime Commission, 1930 Report, p. 143.

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CRIME AND THE COMMUNITY

less tenuous, more or less definite, varying in time and place, and depending upon the particular type of criminal activity in question. There is a recognizable classification of those who belong to the criminal class. In 1 9 i s the Chicago City Council Committee on Crime said, There were in Chicago at the time of the investigation a large number of professional criminals, of whom the Committee has located about five hundred. T h i s list includes pickpockets, burglars, holdup men, confidence men, gamblers, pimps, safe-blowers, shoplifters, and all around crooks. Most of the burglary, robbery and larceny is committed by them. 1

T h e obviously existing organization of these criminals was described in the following terms: T h e crime system is not a system in the sense that it is centrally organized, that is completely centralized, and under fairly close control. T h e degree of centralization differs in the various branches of crime. T h e pickpockets for example, are probably the best organized, while burglars and hold-up men are regarded as the lower grade of criminals. There are dukes, counts and lords in the criminal group, but there is no king who rules over the entire population. T h e closest approach to centralization is found in the lines of political influence that converge toward a small group of men, characterized as the men, or sometimes even the man "higher up." While this criminal group is not by any means completely organized, it has many of the characteristics of a system. It has its own language; it has its own l a w s ; its own history; its tradition and customs; its own method and technique; its highly specialized machinery for attack upon persons, and particularly upon property; its own highly specialized modes of defense. These professionals have interurban, interstate and sometimes international connections. 2

More specifically, criminal activities are broken up into smaller groups, mobs and gangs that frequently go by special names, and that have a history of their own extending over periods of years. In fact most American cities have well-known gangs operating in them. Within these groups or mobs there may exist special gangs that more or less continuously and for a period specialize in some related type of criminal activity, becoming automobile thieves, freight-car thieves, jewelry thieves, bootlegging gangs, narcotic rings, bank robbers. Thus it is evident that crime is an associated enterprise, involving a number of persons, requiring specialized skills and peculiar relations to the world. Crime is an organized enterprise. Chicago City Council, Report of Committee on Crime, p. 10. Chicago, 1915. *Ibid., p. 164.

1

ORGANIZED

CRIME

89

T h e types of organization that exist m a y be illustrated by a few examples. A case of insurance fraud is shown to have involved at least six m e n : Six men listed on insurance records as dead marched briskly to the witness stand today in County Court at St. George, Staten Island, and, in varying degrees of indignation, denied that they were ghosts. One by one the " d e a d men " testified against six other men who are on trial charged with conspiracy to defraud the Metropolitan L i f e Insurance Company. It is charged that they proved the " d e a t h s " and were paid the insurance on the lives of the six men who testified today. John R . Hogan, a watchman, testified he did not die of a fractured skull, although his "son, J a m e s , " had collected on a $ 1 , 3 6 4 life insurance policy after the " f u n e r a l . " Hogan said he had no son. 1 T h e technique of the arson ring is indicated in another news item.

In

this case seven men were involved : According to the authorities, the alleged arson ring had what was known as a contact man, whose job was to establish acquaintance with a property owner who might be in need of money and strike a bargain with him. After that, they s a y , the layout men arrived at the property. T h e y brought pig bladders filled with a highly inflammable substance, and placed the bladders in various spots in the property. T h e touch-off man then was sent to the premises, they declare, and he arrived when the family was conveniently out of town, and set off fuses leading to the various bladders. The fire would destroy the pigs' bladders, the insurance men say, leaving no evidence and causing authorities to report the cause of the fire as unknown. 2 T h e elaborate technique of the pickpocket is indicated by the following description: . . . A pickpocket " m o b " consists of 3 or 4 men. Generally 3, sometimes 5 (what they call a "basket-ball t e a m " ) . One is called " t h e stall." He is the man who is in front, slows up the victim's progress, and keeps him from turning. Then " t h e w i r e " is the man who actually reaches in and picks the pockets. T h e " d u k e m a n " comes to on his left hand and covers the " w i r e ' s " hand while he is at work and covers him from the people standing back and the people on the side. A " d u k e m a n " always keeps his right hand at his side; so when the " w i r e " comes away from under " t h e m a r k ' s " coat with his purse or roll of money, he always hands it to the " d u k e man." T h e " d u k e m a n " puts it in his " l e f t coat t a i l " (meaning his left coat pocket). T h e reason that the " d u k e 1

New York Times, November 14, 1930, p. 6.

2

New York Times, October 25, 1931, p. 6.

90

CRIME AND THE COMMUNITY

m a n " keeps his right hand at his side in case of a " r u m b l e " the wire pulls his hand away and there is always two hands there and the victim is undecided which one it was. T h e reason that he always goes to his coat " tail" with the purse, in case the victim "blows" (meaning, feels his loss) and turns around and grabs the duke man, the stall and the wire know just what pocket to go to, take the purse out, and throw it on the floor. The "sucker" is always satisfied when he sees his money. When I was with Harry P. I was his "duke man." 1 T h e elaborate organization, care, and timing involved in a s a f e t y vault r o b b e r y are shown in the following description of such a crime in C h i c a g o . T h i s crime took the greater part of the night. They set to work in a second-floor apartment immediately over the real estate offices. First, with augers, they cut away the hardwood flooring, then sawed through the joists to a layer of brick, eighteen inches thick, covering the steel wall of the vault. Then they put the flame of the oxy-acetylene torch on the brick and mortar and the steel. The three-foot hole they cut let them into a general storage vault. Here the torch wielder cut into the vault housing the safety deposit boxes. Pointing their pistols at Kruse, they forced him to show them a card index of safety box renters. The torch operator burned the lock off each box, and the contents were removed and placed in a basket, which was pulled up through the hole to the second floor, where they were sorted. Only cash was taken. Securities and jewelry were left in huge piles. The robbers wore gloves to prevent leaving fingerprints, worked calmly and methodically and had left nothing to chance. As the hours went on they, as well as their prisoners, became hungry, and they directed the women to prepare a dinner, which was eaten by both the robbers and their prisoners. When, early this morning, the robbers departed, one of them laughingly remarked to Laschetzke, pointing to the piles of jewelry and other valuables which they left behind: " I f you want to start a jewelry store, go in and help yourself. There's a fortune left." While the police said they believed the cash taken was in the neighborhood of $1,000,000, no accurate total was obtainable. Some estimates ranged as low as $250,000. But in any event it was one of the greatest robberies in the city's annals. Mr. Koch was reached at Green Bay and returned to the city today. He personally lost $30,000, he said. He stated that the exact amount of the loss ' S h a w and M c K a y , op. cit., p. 236.

ORGANIZED

91

CRIME

could not be determined until a f t e r the time lock on the vault which is set for T u e s d a y morning, opens. T h e crime was placed by the police in a class w i t h the robbery of t h e v a u l t in the Werner Brothers warehouse in 1923 in which the loot exceeded $1,000,000.

In many respects the methods employed resembled those used

b y the gang that plundered the vault of the W i c k e r P a r k Deposit and Vault C o m p a n y on a week-end a year ago, t a k i n g cash, j e w e l r y and securities worth $100,000. 1 T h e s e elaborate techniques can be developed only with time experience;

they require discipline, obedience, and loyalty.

It

and takes

elaborate preparation, mutual confidence, and long-range planning to c a r r y o u t s u c h c r i m e s a s h o r s e - d o p i n g f o r r a c e s in w h i c h l a r g e a m o u n t s of m o n e y a n d t h e s t a k e s of n u m e r o u s p e r s o n s a r e i n v o l v e d . T e n race-horse owners, managers, trainers and track employes were indicted by a Federal grand j u r y today in connection with the " d o p i n g " of horses at Arlington P a r k and other tracks.

T h e indictments charge viola-

tion of the Harrison Anti-Narcotic A c t . N i n e of the defendants are charged with conspiracy. T h e tenth, D r . Nelson E . Southard, a track veterinarian, is charged with purchase, possession and concealment of nine grains of a narcotic. T h e others are Jack

H o w a r d and B e n j a m i n Creech, stable

managers;

A . A . Baroni and H a l Price H e a d l e y , o w n e r s ; I v a n H . P a r k e , a former j o c k e y ; W i l l i a m Payne, M a r v i n Hardin, James H e x h e m and Charles P.

Mitchell,

exercise boys. T h e indictments were obtained by District A t t o r n e y D w i g h t Green, who assigned Leslie Salter, Special Assistant A t t o r n e y General, to present the case before the grand j u r y . R a l p h Oyler, in charge of the N a r c o t i c Bureau here, said that the government was prepared to show that 250 horses were doped at seven tracks around C h i c a g o and in the South this year. T h e specific instances in which it is charged that horses were drugged are as f o l l o w s : Marmion—July 4, Arlington Park. Louie D e a r — J u l y 5 and July 28, Arlington Park. Islam—July 5, July 12, Arlington Park. Adelaide A . — F e b . 17, Hialeah Park, Miami, Fla. Ebony L a d y — F e b . 27, March 8, Hialeah Park, Miami, Fla. Spud—Feb. 26, Hialeah Park, Miami. Portcodine—June 27, Arlington Park. Dr. Parrish—June 30, and other dates, Arlington Park. Threat—June 30, and other dates, Arlington Park. 1

New York Times, September 5, 1932, p. a.

92

C R I M E A N D THE C O M M U N I T Y Liquer—March 6, Hialeah Park, Miami. Caboose—July 12, Arlington Park. Technique—July 17, Arlington Park. Big Beau—July 18, Arlington Park. Y f t i n — J u l y 10, Arlington Park. Snaplock—July 14, Arlington Park.

T h e " d o p i n g , " according to the indictments, took place always about fortyfive minutes before post time. D r . Southard, Mitchell, Parke and Payne are already under bond. for the others was set at $5,000 each by the grand jury.

Bail

A hearing on horse drugging will be held the first week of October by Senator Copeland of N e w Y o r k , chairman of a subcommittee investigating rackets. Oyler, who will be a witness at this hearing, has been ordered to get all the information possible by that time. H . J. Anslinger, head of the Narcotics Division at Washington, is seeking evidence at Eastern tracks. 1

How elaborate and carefully planned crime is may be indicated by the technique involved in "sticking u p " a gambling " j o i n t . " E v e r y gambling joint has " h e a v y m e n " — w h a t are known as "floor men," and they are the " h e a t " in the joint. Y o u have to be searched two or three times before you are allowed to enter the gambling house, and that way it is very hard to get up there with guns. In order to stick up a gambling joint, the tip generally comes from a dealer or a hanger-on. Well, you then go up. T w o of the mob, in which there are generally four or five, would go up and look the place over. T h e tipster would point out the " h e a v y m e n " who were unknown to us. N o w , in some of these places they only shake a man's person. T h e y never bother with packages. So we got an idea if you took a suit box, put sawed-off shot guns in the suit box and pistols, one man could carry them in. But first a man would go up with a suit box with a suit in a laundry box and try it out a couple of times to see if it would work. And if they passed it up once or twice we would take a chance and go up. W e never had a " r u m b l e " before we got into a place by having the box examined. Other places would check boxes and p a c k a g e s — t h e y would take them off you. Lots of times if the place was prosperous enough we would " p r o w l " the joint after it closed up, and plant our s t u f f — g u n s , etc. Then come back the next afternoon and take the joint. T h e main worry of this was you could never tell whether somebody had found that stuff. W e always took the precaution first to examine all guns to see that they were loaded before giving the command that it was a stick-up. A s I said before, they was generally from one to three " h e a v y men," and they were already pointed out to us. If we were successful in getting a suit 1

New York

Times,

A u g u s t 19, 1933, p. 26.

ORGANIZED

93

CRIME

box in w e w o u l d loiter a r o u n d the p l a c e , a l w a y s s p l i t o u t , a n d o n e m a n w o u l d g o t o the toilet a n d g o in a b o o t h a n d o p e n t h e b o x , a n d w e w o u l d a l l t a k e t u r n s of g o i n g in a n d g e t t i n g o u r g u n s .

T h e m e n w h o w e r e g o i n g t o use t h e

s a w e d - o f f shot g u n s , of w h i c h t h e r e w a s a l w a y s t w o , w o u l d b e the l a s t t o g o in. E v e r y b o d y w o u l d h a v e their p o s i t i o n s .

T h e men would circle behind the

" h e a v y m e n , " so w h e n t h e c o m m a n d w a s g i v e n t h e y w e r e a l w a y s t h e first t o g o u p b e c a u s e t h e y d i d n ' t h a v e n o c h a n c e to r e a c h f o r their g u n s . O n e m a n w o u l d t a k e t h e p a y i n g c a g e s w h i c h c o n s i s t e d s o m e t i m e s of t w o or t h r e e for r a c e - h o r s e b e t s . W e w o u l d all s p r e a d o u t a r o u n d t h e p l a c e , a n d w h e n o n e m a n w o u l d g i v e t h e o r d e r , t h a t it w a s a s t i c k - u p , e a c h o n e in t h e m o b w o u l d e c h o the o r d e r s i n g l y .

T h a t w a s to l e t t h e p e o p l e k n o w t h a t t h e r e w a s

a n u m b e r of us. W e w o u l d first relieve t h e " h e a v y m e n " of t h e i r g u n s . w o u l d find a g u n or t w o in t h e p a y w i n d o w . w i t h a s h o t - g u n t h a t t o o k c a r e of t h e m c a g e s .

Most times y o u

T h e r e f o r e , it w a s a l w a y s a m a n A f t e r h o i s t i n g the p l a c e u p w e

would chase e v e r y b o d y against the wall, facing the wall, with their h a n d s up, c h a s i n g t h e cashier o u t of t h e c a g e s .

One man a l w a y s had a sack or a brief

c a s e w i t h w h i c h he w e n t to the c a g e s to g a t h e r t h e m o n e y .

E v e r y b o d y had a

p a r t in t h e d r a m a , a n d it all w e n t off l i k e c l o c k w o r k . I t w a s a m a t t e r of r o u t i n e . U p o n g e t t i n g t h e " o f f i c e " t e l l i n g us t h a t t h e c a g e s w e r e c l e a n , a l l t a b l e s , all boxes, all c r a p t a b l e s , w e w o u l d t h e n c h a s e e v e r y b o d y

card

from one

side of t h e w a l l to t h e o t h e r a n d p i c k u p all t h e m o n e y t h a t w a s d r o p p e d . w a s m u c h easier t h a t w a y t h a n s e a r c h i n g p o c k e t s .

It

Sometimes we would look

into t h e i r s o c k s , j u s t at r a n d o m . W e w o u l d n o t s e a r c h i n d i v i d u a l s e x c e p t t h o s e w h o s e f a c e s w e r e f a m i l i a r to us, a n d w e k n e w t h e g a m b l e r s w h o w o u l d b e a p t to h a v e rolls. 1

How carefully planned and timed robberies and holdups are is indicated by the fact that "the average time consumed in a hold-up is seven minutes and an automobile is invariably used." 2 The commercialized gang goes in for efficiency on a scale that bespeaks organizing ability of high order. Take for example "the ' C o w b o y ' Tessler gang of N e w Y o r k , which has been termed 'the most highly organized and commercialized group of bandits in history.' This gang, most of whose members were apprehended in October, 1925, used silencers on its guns, employed a jeweler to remount its stolen gems, maintained two garages where stolen cars could be renumbered and disguised, established a warehouse and a business office where miscellaneous loot was sold, and maintained a sinking-fund to provide bail and legal fees." 3 Shaw and McKay, op. cit., pp. 239-240. 'Annual Report of the Police Department, City of New York, 1931, p. 26. 3 Thrasher, op. cit., p. 421. 1

94

C R I M E AND T H E COMMUNITY

T h e organization of the so-called " r a c k e t s " is based upon intimidation and violence and usually involves many persons. Rackets are a species of coercion, intimidation, and protection that take on something of the flavor of government by violence. T h e y are reputed to exist in many branches of industry and commerce. T h e N e w Y o r k City Police Department Report for 1 9 3 1 (p. 2 2 ) records arrests in the Ice Racket, the Sirup Racket, the Clothing Racket, the Flower R a c k e t and the Soda Racket. A racket as understood b y the police and the underworld consists of forcing b y threat and violence persons engaged in either legitimate or illegitimate business into joining organizations which offer real or imaginary protection. It also involves compelling individuals and concerns to purchase products sponsored b y certain groups. Something of the w a y the racket works is indicated by the following quotation. How one small but very profitable racket was worked in the Bronx was exposed recently when police closed an unlicensed detective agency. Members of the "agency," nearly all with police records, approached small store owners in congested residential districts. Representing themselves as the aids of well-known gang leaders, they offered protection from hold-ups for $ 1 0 a week. They also promised that no other retailers of the same type would be allowed to compete within a certain territory. Few owners refused the sum asked. Those that did received warning in the form of a severe beating. If they continued to be obdurate, their stores were wrecked. A racket which came to the attention of the courts recently was one dealing with the milk supply in the Bronx. The perpetrators forced milk dealers to join an "association." They also made them buy milk of inferior grade from certain concerns, and only when they became too tyrannical were the racketeers exposed. The building situation in the same borough is another example of the work of the racketeer in New York. One of them, who came to trial after fires in buildings under construction resulted in the loss of thousands of dollars, received a sentence of from seven and a half to fifteen years in prison. There is no guarantee, however, that the ring which controlled many of the building trades is broken. One leader, who has been connected with nearly all of the big rackets in New York City, is said to be receiving $100,000 over a period of ten years from a large taxi concern. He is pledged not to operate cabs in the city during that period. His scheme was a taxicab association which guaranteed its members certain choice spots in the city. Non-members and even the largest operating companies could not oppose his power. Those who did had their cabs damaged and drivers beaten by the members of his gang.

95

ORGANIZED C R I M E

In recent years, rackets have been considered but a sideline, though a profitable and widespread one, of the organized criminal. His main occupation has been the manufacture and sale of liquor and from that he has branched to the rackets and to vice and other crime activities.1 T h e types of crime we have discussed so far do not necessarily depend upon police and political protection or connivance, though in many instances such protection or connivance has been proved to exist. In other fields this connection is explicit. In organized crime connected with vice, gambling, and bootlegging, political and police connivance or co-operation seems almost inevitable. We may describe one situation as typical of what goes on in other fields and in other places: T h e state's attorney in Chicago, on September 28, 1907, said of Mont Tennes that he was king of the gambling ring, and dictator over hundreds of bookmakers who were allowed to run poolrooms without interference and with the knowledge of the mayor and chief of police. He charged that Tennes distributed racing information through a trunk line and received from fifty to one hundred dollars daily from each of his clients for the services rendered. N o gambler could receive racing information without the consent of Mont Tennes. All poolroom owners and operators turned in fifty per cent of their total deal transactions and then Tennes paid in turn one half of the money lost to betters. An army of employees, checkers, collectors, and other agents operated under his direction to collect and distribute funds and care for the business details. In part the protection of the police was believed to be secured by permitting certain detectives to bet on horses without putting up any money and allowing them to collect their winnings but to be involved in no losses.2 Organized gambling was so complete in 1909 that no one could enter the business without securing the permission of the Tennes ring, and if one challenged the power of the ring his place of business was bombed. 3 Police protection was so well secured that during raids the police "would overlook an entire floor of a building and leave expensive paraphernalia untouched while tearing up some playing cards." This control of gambling in Chicago facilitated the extension of Tennes's power over gambling news and its dissemination, over pool room and gambling devices, and made it possible for him to spread his tentacles to twenty cities. His dictates were enforced by dynamite and police control. 4 1New

York Times, May 18. 1930, Sec. HI, p. u . ' John Landesco, op. cit., pp. 872-873.

»Ibid., p. 876. 4 Ibid., p. 880.

96

C R I M E A N D THE C O M M U N I T Y

While the struggle for power was going on in 1910, the Payne Service, a competing organization, charged that if Tennes "succeeds he will charge every hand book and pool room of the country an exorbitant price for information from the tracks of America and Mexico. . . . We are fighting Tennes fairly but he insists on having the whole thing and seems to want a renewal of the gambling w a r . " 1 The gambling war was fought with bombs. T h e Payne Service charged Tennes with instigating police raids on establishments not covered by him. T h a t was in 1910. In 1927 the Empire News Company asked a federal injunction to restrain the Chicago police from raiding and wrecking its office, charging that Mont Tennes was responsible for the raids. How extensive and entrenched these operations can become was revealed in a suit against Tennes by one of his partners, Timothy Murphy, on August 27, 1911. He charged T h a t there were three hundred gambling rooms, from poolrooms to faro and roulette layouts, operating in C h i c a g o ; that the income amounted to more than half a million a d a y ; that Mont Tennes was the operator of gambling news service with Chicago as its center and radiating all over the United States; that Tennes secured power through a system of persecution; that the Payne race-track system and others were put out of business by dynamite bombs and the torch; race-tracks and even private residences being fired or dynamited in the war of extermination; and that pool-rooms in Chicago which failed to subscribe to the service were closed down b y the police. 2

There have always been both a denial and an assertion that the police in Chicago protect the gamblers. In a trial before the Civil Service Commission in Chicago in 1910, Chief of Police McWeeney said " T h e r e is no gambling in Chicago and the police do not tip off raids." T h e next day the Assistant Chief of Police said just the opposite, that there was gambling and that the police did "tip o f f " the gamblers in case of raids. 3 A t this same trial evidence was presented that raids were made only on the unprotected places, for the purpose of driving competitors out of business; that raids on protected places were prevented, or were made on dummy places especially set up for the purpose of being raided. There was further testimony that involved two aldermen, Hinky Dink Kenna and Bathhouse John Coughlin, two police inspectors, and a police lieutenant. A regular list of prices that were paid was testified to. The only ones convicted were a few policemen. All these investigations and charges, and intermittent bombings, were part of a gambling war; and ilbid., p. 879.

»Ibid., p. 881.

»Ibid., p. 886.

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ORGANIZED C R I M E

when the witnesses against the gambler and those whom they accused entered into new agreements, the charges were dropped. The Illinois Crime Survey summarizes the activities of the gambling ring dominated by Mont Tennes in the following terms : T h e ramifications of his deals to form gambling rings or to complete the monopoly of gambling, his alliances with and wars of violence against competitors, would involve the name of every gambler of any consequence in Chicago for this period. His control over politicians and officials for purposes of protection for himself, his associates and subsidiaries, or control over the police to gain immunity, or even to use police raids for the destruction of competitors and enemies ; his experiences as defendant prosecuted in state and federal courts and in civil suits brought by crushed or disgruntled gamblers, exhibit a marked continuity despite changing policies of destruction, connivance or regulation with changing governmental administrations and changing officials—state's attorneys, mayors and police chiefs; a persistence in the face of spasmodic reform agitations, newspaper exposés and investigations of grand juries and courts, federal and state, and of municipal authorities. All of these phases of the continuity of organized gambling unfold in the life of this powerful overlord and disclose the reaches of organized crime as well. 1

This relationship between gambling and politics extends to vice. In 1916 it was shown that the Sportsmen's Club, which boasted the Mayor's name on its letterhead, had among its members some of the leading gamblers, slot-machine manufacturers, and owners of vice resorts, and that life membership in the club was really a means of securing protection. Among the members were Mont Tennes, the lord of gambling, and James Colosimo, the lord of vice. Among them too were Chief of Police Healy and Captain Collins. The Civil Service Commission secured sufficient evidence to cause the arrest of the Chief of Police. Indictments were voted against the Chief of Police, his sergeants, and a number of gamblers, vice lords, policemen, and bondsmen. 2 A police official said that It is just as necessary for a handbook or a gambling house to pay for protection as it is for a saloon or restaurant to pay for a city license. A n y ' j o i n t ' which is not paying for protection is promptly raided and closed. If a place is running, everybody is satisfied that it is paying. 3

And a private investigator, Miss Kate J. Adams, reported : T h e trust collects from each of the houses and pays for arrangements with the police and for political contributions. 'Ibid., p. 867.

2Ibid.,

It regulates competition.

pp. 891-892.

3Ibid.,

p. 893.

The

98

C R I M E AND T H E COMMUNITY

famous Everleigh Club was closed because it was a rival of Freiberg's of the trust. After the closing, Freiberg's quadrupled its business. The houses are required to patronize certain grocery stores in the immediate vicinity, to take out all their insurance in a company represented by a powerful politician. Three doctors are especially endorsed by the trust. Cab drivers receive a percentage on money spent by customers they bring to a house.1 T h e ramifications of organized crime are revealed in many ways. T h e relationship between bootleggers, gamblers, owners of vice establishments, gangsters, and the more or less respectable elements in the community is indicated for instance b y the ceremonious character of some of the murdered gangsters' funerals in Chicago. A t the funeral of Big Jim Colosimo, who was shot on M a y n , 1920, there were among the honorary pall-bearers twelve public officials, including eight aldermen, two congressmen, and two judges. T h e active pallbearers included one state senator and one alderman. T o exhibit the implicit relationship between the gangster and the rest of the community, it is worth while to reproduce the following description of the funeral of Anthony D ' A n d r e a , who was shot M a y 1 1 , 1921. [HONORARY PALLBEARERS] Judge Joseph Sabath Judge George Kersten Judge R. H. Miller Judge D. F. Marchett Judge Kirkham Scanlan Judge H. M. Friend Judge D. S. Morrell Judge D. M. Brothers Judge P. L. Sullivan Judge F. S. Wilson Judge O. M. Lorrison Judge J. A. Swanson Judge L. Jacobs Judge J. W. Brien Judge J. K . Prindiville Judge Bernard Barasa Judge George Holmes Judge W. L. Morgan Judge J. Schulman Judge Hugo Stewart 1

Judge William Fetzer Attorney W. Navigato Attorney G. Spatuzza Attorney Thomas Nash Attorney Ben J. Short Attorney M. Ahern Attorney D. Barone Attorney J. Priore Attorney Francis Borrelli Attorney Stephen Malato M. Rosini N. Pape S. Insalato J. Zappina V. Chisesi H. Tiffo G. Crapple F. DeBartalo V. Pace

Ibid., pp. 847-848.

ORGANIZED

99

CRIME

[Active Pallbearers] Stephen A . M a l a t o , special prosecutor for the state D i a m o n d Joe Esposito Peter Russo, leader in Unione Siciliana O t t o Anerino, representing the H o d C a r r i e r s ' Union P e t e r Fasco, representing the H o d C a r r i e r s ' Union Joseph Mareschi C a r m e n Vacco, city sealer Funeral cortege was about two and a half miles long. A b o u t eight thousand people attended. Flowers estimated at eight thousand dollars. H e was forbidden the last rites of the C a t h o l i c C h u r c h , b u t his brother, a priest, was allowed to give a v e r y short sermon. 1

3. The Place oj the Middleman O r g a n i z e d c r i m e requires for its c o n t i n u e d f u n c t i o n i n g n o t

merely

political connections b u t an elaborate s y s t e m of m i d d l e m e n to dispose of i t s s t o l e n g o o d s . T h e i m p o r t a n c e o f t h e m i d d l e m a n h a s b e e n b r o u g h t out previously.

H e is t h e l i n k t h a t m a k e s c e r t a i n t y p e s of c r i m e p o s s i b l e

a n d p r o f i t a b l e , a n d m a y e v e n a c t a s a n o r g a n i z e r of c r i m e a n d c r i m i n a l activities.

D a n n y A h e a r n tells us t h a t

T h e first step in stealing a car, I would m a k e connection with w h a t is k n o w n as a fence for automobiles. H e tells m e : " I ' l l give y o u t w o hundred for such and such a car, and five hundred for another k i n d of c a r . " located right in the city here, usually.

T h e fences are

Sometimes they are out of

town,

sometimes they are in the city. T h e y are all over. I j u s t drive it right to the place, and I get my money. R i g h t on the spot. 2

T h e s e fences that have cars, they generally run second-hand joints.

Gen-

erally they're good m o u t h - p i e c e s — t h e y got a good tongue and can gain y o u r confidence in selling y o u a car, just like an ordinary salesman. 3 T h e C h i c a g o C i t y Council C o m m i t t e e on C r i m e ( 1 9 1 5 ) tells us that A man w h o is known as a " f e n c e " receives stolen p r o p e r t y from a n y accredited thieves w h o m a y bring it to him. H e is a n individual fence. B u t there are many of these fences who are " w h o l e s a l e r s . " T h e y h a v e regular crews of burglars and shoplifters who go out and obtain goods for them. T h e y h a v e wagons marked as milk wagons, or b a k e r y wagons, so t h a t t h e y c a n m a k e their 1 Ibid.,

p. 1034. »Danny Ahearn. How to Commit a Murder, p. 77. New York, 1930.

3 Ibid.,

p. 83.

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CRIME AND THE

COMMUNITY

deliveries in the early morning hours. In other words, these fences are the center of a spider's web of thieves and burglars w h o are on intimate relations and between whom there is more or less well defined working partnership. Another class of thieves have their representatives in other cities. A buyer from another city wishes, for example, so much cloth of a certain kind, or it may be jewelry.

He sends his order to the fence, who takes the matter up with

his burglars or shoplifters and they in turn send out their buyer who goes to the various places where he thinks these goods may be found. 1

As part of the evidence for these assertions the Committee gives the testimony of a police officer who was one of its investigators. Wholesalers deal with people usually from out of town, who know the kind of property they are buying when they deal with the wholesaler. T h e wholesaler will receive in total, an order for a large amount of stuff, a large mass of stuff. T h e wholesaler don't run a mob of burglars, except the larger size fences do. N o w when the wholesaler receives sufficient orders totaling a large amount, he communicates with the different fences, those that run mobs, and the fences then send out what they call the fence " b u y e r " into the store that carries a line of stock that the wholesaler requires to fill his order. He visits a sufficient number of stores containing stock to fill the total amount of the wholesaler's order. T h e buyer then reports back to the fence the list of stores containing this stock. Then the fence sends out what they call the head burglar, and he looks over the list that has been submitted by the fence's buyer and notes the best entrance. Then he reports back again to the fence, and then, on the report of the buyer and the chief burglar for the fence, the fence and the wholesaler then agree on the burglary of these stores to fill the order that the wholesaler has. N o w , to see that the fence's buyer has not reported wrong about the class and quality of the stock there may be in the store to be burglarized, the wholesaler has a man that they call the wholesaler's buyer, and sometimes, not alone the wholesaler's buyer, but the wholesaler himself goes there and looks the situation over, and rechecks the list furnished at the time, for the series of burglaries to be made to fill the contract of the wholesaler, and if the goods come up to their requirements in quantity and quality, the fence then gets the job, and in the afternoon of the day that a certain burglary is going to be made, the wholesaler is then communicated with, and he knows what places are going to be " b u s t e d " that night, and he knows what the contents are, and to what customer that will fit that he has an order from, and then the job is done, and the stuff is not taken to the fence at all then. It is taken directly to the wholesaler, and the wholesaler has his boxes ready, and he snips off all identification marks, and packs the stuff in boxes, and by the time the man gets down to his store, and finds that he is burglarized, the stuff is on the w a y out of town. That is the system. 2 »Pp. 166-167.

J P.

167.

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CRIME

101

T o s u b s t a n t i a t e the g e n e r a l f a c t s a s g i v e n in this i n v e s t i g a t i o n

Danny

A h e a r n , 1 9 3 0 , m a y be q u o t e d a g a i n : A man goes that

fence don't look to do business with more than one man. N a t u r a l l y , that knows what he's got to ask for, and if he can't get what he asks for he back and holds a conversation about it, and they agree as to the price has been offered by the fence.

It ain't a good idea to go from one fence to another, because if you go to a second fence, the first question he will a s k : " W a s you to anybody e l s e ? ' ' Y o u can't trust all of them fences, because they are noted to me as rats. Some of them work with cops, and if you don't sell them the stuff they're sore, and they will look to call the cops to get the stuff pinched and to get you pinched. Y o u notify the fence the night before. If he doesn't treat you right, you don't bring him any more stuff. Y o u know you are going to get along with that party. He must have a pal, probably out of town, and probably they open up a regular retail store. I don't know much about that. Generally you work on what is known as a third. If it's worth a hundred thousand, you get thirty-three thousand. What's there is known as the melting pot, and you pay the chauffeurs and you split it up. T h e chauffeur:; work on a ten per cent basis, that is twenty per cent for the two of them. 1 T h e o r g a n i z a t i o n of the b u s i n e s s of d i s t r i b u t i o n of the g o o d s a c q u i r e d t h r o u g h t h e f t is e l a b o r a t e ; t h i n g s stolen in one c i t y a r e d i s p o s e d of ¡11 another city, perhaps

in a n o t h e r

state.

There

is e v i d e n c e of

what

a m o u n t s to a n a t i o n a l s y s t e m of d i s t r i b u t i o n f o r stolen g o o d s : M r . P . E . P r a t t , C h i e f S p e c i a l A g e n t of the C h i c a g o , B u r l i n g t o n & Q u i n c y R a i l r o a d C o m p a n y , s t a t e d b e f o r e a m e e t i n g of the N a t i o n a l C r i m e

Com-

mission that they are a powerful b o d y — t h e fence houses—of this country. I can tell you a case recently where a railroad company in a city of about 300,000 people recovered through the special agents and department of a certain railroad, over $300,000 worth of stolen merchandise—not all of them railroads—not all from the merchants in that c i t y — b u t in the invoice of that particular house. There was not an order in there with a mark on it. Those goods were being shipped from this headquarters to states as far as M o n t a n a — t h e r e distributed to the substores in the community. I sent a man out there to buy shoes. W e bought seven pair of shoes for $ 1 . 5 0 . At the wholesale price of those shoes, if I recollect, was S3.2 5. T h e very minute that the officers of the law accompanied b y the railroad's special agent, stepped into that house with a search warrant for a few articles, namely shotguns that had numbers on them, that could be identified—immediately he informed the officers that nothing could be done l

Op. at., pp. 63-63.

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there until his return—he was on the ground. May I say to you that that attorney supposedly stood high in that community. The police department of that city, on several occasions had had this same man arrested. This firm of lawyers were paid annually to protect that man from prosecution. It was necessary in order to insure conviction of that man for members of Special Agents Department and the head of those departments to call on the Chamber of Commerce and ask for assistance. It was necessary to make five different trips up there. Finally he forfeited his bond. The special agents got active in apprehending him and finally successfully got him in the penitentiary. 1

4. Making the World Safe for Crime T h e s e various operations, connections, and activities which reflect the behavior pattern of organized crime can persist over a long period of time only if they succeed in defeating the law.

T o defeat the ob-

jectives of the law, b y whatever means, is essential if organized crime is to continue. In so far as it does continue, organized crime evidences its ability in that direction. It achieves the defeat of the law b y corruption and intimidation.

It bribes public officials. Surgeons have even been

asked to alter faces and fingerprints of criminals w h o felt themselves too well k n o w n . The increasing use of surgery by criminals in an effort to conceal identity undoubtedly has placed added responsibilities upon the practitioner. Inquiries made by the Federal Bureau of Investigation of the United States Department of Justice have disclosed several instances in which irresponsible physicians have attempted to alter the facial appearance and the finger patterns of known criminals. The criminal implications of such conduct on the part of persons with medical experience are understood at once by members of the profession. No doubt exists as to what is and what will be the attitude of the Department of Justice toward such interference with the processes of justice. Apart from obviously criminal activities, a situation exists which perhaps requires some discussion as to the responsibility of the ethical practitioner. It would appear that in the conduct of ordinary practice the surgeon would be alert to avoid rendering unintended assistance to the changing of the appearance of patients who wish to conceal identity. Further, a distinct responsibility rests on the surgeon in cases of doubt to inform the authorities of such attempts. It is hardly necessary to say that where operations are performed under such circumstances that the fugitive character of the patient is apparent, the attitude •National Crime Commission. Proceedings of the National Conference on the Reduction of Crime, November and and 3rd, 1927, p. 78. New Y o r k , 1927.

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of the Department of Justice will be to consider the physician or surgeon as conspiring to harbor, or harboring, the fugitive. 1 Organized crime also purchases witnesses and tampers with juries; if these fail it resorts to intimidation, and if necessary to murder. T h e criminal has his bondsman and his l a w y e r — t h e y work to keep him out of jail, and frequently succeed. Mr. Davies: And those fellows are passing in and out all of the time. They would have to spend all of the time in jail, because they don't work at anything else? Captain Meagher: They don't seem to spend very much time in jail. Mr. Davies: When one of them gets arrested, the rest of them get busy, don't they? Captain Meagher: I don't think the wagon hardly arrives with one of them before he gets away. The wagon don't hardly arrive at the station before some one is there to get him out. Mr. Davies: Some lawyer ? Captain Meagher: It is hard to judge. 2 Six criminal lawyers, including State Senator Samuel W. Salus, a Republican leader, were disbarred permanently today as the outgrowth of the Philadelphia Bar Association's campaign against members found to be in collusion with racketeers. . . . The judges used vigorous language, in denouncing the six disbarred lawyers. In the six opinions were repeated "judicial observations" regarding the actual criminality of the practices exposed. Some of these observations stated frankly the belief that certain of the attorneys had engaged in activities for which they could be indicted and tried. " T h e attorney who accepts a retainer in advance from a principal in a criminal conspiracy (the numbers game) to defend agents who might from time to time be arrested, is as much a principal in the conspiracy as the 'banker' who retains him, or the 'pick-up man' or 'writer,' " said the opinion regarding Herbert Salus. " W e need not make any fine distinctions as to whether the respondent's conduct is unlawful or unethical. It certainly belongs to the class of acts described as things that are 'not done' by fine-thinking people or respectable lawyers." The findings against Senator Salus made this observation: " T h e successful results obtained by the Salus office in (drunken drivers') cases, before a favoring magistrate, make the fees a matter of sinister sig1 John Edgar Hoover, " Plastic Surgery and Criminals : The Surgeon's Responsibility," in American Journal of Surgery, Vol. X X V I I I (April, 1935), p. 156 f., as quoted in the New York Times, April 12, 1935, p. 18. 3 Chicago City Council Committee on Crime, op. tit., p. 160.

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nificance based upon the factor of 'influence' rather than the normal services rendered by a member of the bar." T h e judges held Goldberg "guilty of the grossest kind of professional misc o n d u c t " and said Werblun "sought to conceal his misdeeds by false and evasive testimony and by the destruction of account books of his firm." T h e y found that Green, who was aware of a lump-sum retainer fee paid to Werblun by the late Mickey D u f f y , slain gang leader and numbers racketeer, and who had admitted receiving shares of fees paid by well-known law violators, was " e q u a l l y culpable" with his partner. 1

T h e bail bond itself may be based upon perjury and fraud. Chief Justice McGoorty of Chicago said: Fraud, including forgery and perjury in the making of bail bonds has been long prevalent in Cook County. Professional bondsmen have been instrumental in turning loose upon the community the gunman and gangster. Over a period of years, hundreds of dangerous criminals while at liberty upon such bonds, have preyed upon their innocent victims. Six times as many bail bonds were forfeited in the courts of Cook County during 1929 as were forfeited in 1921. During the last five years bail bonds aggregating more than $10,000,000 were forfeited and less than 1 per cent of that amount was collected. 2

If in spite of this criminals are brought to trial, then witnesses may refuse to testify because of fear. Police Commissioner Edward P. Mulrooney declared his approval of a war on racketeers in this city. He said his men often know all about a racketeer s h o o t i n g — t h e names of the gunmen and e v e r y t h i n g — b u t that they are unable to obtain a conviction because they have no witnesses. T h e victims are afraid to testify against their assailants. 3

This fear may cause a witness to prefer a prison sentence to giving evidence against higher-ups. Peddler

Accepts

Prison Term of 2j to 5 Years Rather His

Than

Name

Employer

Fran D e Sante, 34 years old, a Puerto Rican, who formerly lived at 38 West 113th Street, refused yesterday to reveal to Judge Freschi in General Sessions the identity of the head of a Harlem narcotic ring in return for a light sentence as a seller.

He was sentenced to prison for from two and one-half to five

years. . . . 1

2Ncw New York Times, April 16, 193s, p. 3. York Times, December 2, 1930, p. 6 * Chicago Tribune, November 15, 1930.

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105

CRIME

" I t is a difficult task to reach the higher-ups in this drug p e d d l i n g , " J u d g e F r e s c h i said to D e Sante, a f t e r the defense l a w y e r had pleaded for clemency. " I f y o u will tell me the name of the person w h o employed y o u , and we can v e r i f y y o u r statement, I'll be lenient with y o u .

I could give y o u a ten-year

prison t e r m . " M r . D e l l Volpi whispered to his client, w h o slowly ran his gaze over the crowded court room. D e S a n t e then shook his head and briefly announced he would not reveal the man's identity. T h e sentence followed. 1 T h a t f e a r of violence p l a y s a large role in intimidating witnesses is indicated b y the refusal of three men in N e w Y o r k C i t y to g o out on bail b e c a u s e the bail bond w a s posted b y their e n e m i e s ; t h e y felt their lives w o u l d be endangered b y

release b e f o r e the trial. 2

T h e pressure

of

intimidation has caused witnesses to fail to i d e n t i f y the persons c h a r g e d with crime. J u d g e G o d d a r d directed the verdict with apparent reluctance a f t e r commenting on the poor memories of the agents, who, with two other witnesses, he s a i d , had taken part in a " d e l i b e r a t e a t t e m p t not to i d e n t i f y the d e f e n d a n t . " " T h i s is a v e r y serious s i t u a t i o n , " J u d g e G o d d a r d said, " i n c o m p r e h e n s i b l e and u n b e l i e v a b l e . " H e explained then that he had been forced to direct a verdict of not guilty because the government's case had collapsed through lack of evidence. 3 T h a t s u c h f e a r s are justified b y the c u r r e n t tradition in the realm of the u n d e r w o r l d is evidenced b y the following m u r d e r of an innocent witness to a c r i m e , so as to silence him. T w o y e a r s of suspense for A u g u s t Gobel ended early this morning when a fusillade of shots poured out of the blackness of an e m p t y boiler room in the ice p l a n t of the Christian F e i g e n s p a n Corporation in the " i r o n b o u n d " section of N e w a r k and killed him instantly. A police g u a r d w h o tried to come to his assistance w a s wounded. Gobel had known it w a s coming ; he had been sure gangsters' bullets would kill h i m ever since he had witnessed the murder of J o h n Finiello, the prohibition agent who was murdered while helping to raid the R i s i n g Sun B r e w e r y in E l i z a b e t h in September, 1 9 3 0 . A hard-working, f a i t h f u l G e r m a n - A m e r i c a n , Gobel had been merely an onlooker in that underworld d r a m a , although he w a s indicted later f o r cons p i r a c y because he had earned his living b y stoking the boilers of the b r e w e r y . 1

New York Times, November 30, 1932, p. 40. New York Times, April 23, 1933, p. 1. l New York Times, July 14, 193a, p. 1a. 2

106

CRIME AND THE

COMMUNITY

Held as a material witness in Finiello's death, Gobel had talked frankly in jail and it was his statements, Prosecutor Abe J . David of Union County recalled yesterday, that led to the search for Nicholas J . Delmore, Jack (Jeff) Newman and William Weiss man. Delmore, who was the proprietor of the Maple Grove Inn, Berkeley Heights, New Jersey, has never been caught; Newman is on trial in St. Paul for murder and Weissman died the death of a gangster in Kansas City recently. Ever since Finiello's murder the strong arm of the underworld has been reaching across the country, the police believe, to silence men who "knew something" about the Rising Sun " j o b " and who might talk. Samuel E . Grossman, who was one of those indicted for murder as a result of Finiello's death was killed in Philadelphia, and " M i c k e y " D u f f y , notorious Philadelphia and New Jersey racketeer, who, it was whispered, had some knowledge of the Elizabeth crime, died a violent death in an Atlantic City hotel in August, 1 9 3 1 . So Gobel lived in suspense, but not in fear. He knew he was the " k e y " witness in the Finiello murder, and he was not anxious to leave the security of jail walls when he was finally released in $15,000 bail in February, 1 9 3 1 . He had often said in the last two years that some day he would be "taken for a ride," but his wife, Mrs. Marie Gobel, and his three stepchildren with whom he lived at 1 1 6 Orchard Road, Maplewood, were more apprehensive than he was. For a time he worked as a janitor in a public school, and then through his membership in the International Brotherhood of Stationary Firemen, Oilers and Helpers he got a night job firing the big boilers of the Feigenspan plant, formerly a large brewery, which is situated at 50 Freeman Street and covers two blocks in an isolated factory district of Newark. Things went along well for a year and a half; Gobel did his work thoroughly; he was always on time and was a steady hand, Joseph Wiegang, assistant chief engineer of the plant, said yesterday. Coming to work at 1 1 o'clock at night, Gobel worked until 7 ; he kept the water in sight in the gauge glasses, broke up the clinkers in the fire boxes and threw the coal evenly over the fire. Last Tuesday, during the daytime when Gobel was off, some men came to the plant, asked for him, showed some official-looking papers, and when told he worked at night, went away. Gobel was told about it and mentioned the incident at home. One of his stepsons went to the police and requested a guard. The guard started last night at the plant in N e w a r k ; the Gobel home was to have been watched by Maplewood officers when the fireman returned from work in the morning. Patrolman Adolph Weigand, attached to the Third precinct here, was assigned to guard Gobel and went to the ice plant boiler room about midnight. Only two men are on duty at night in the Feigenspan plant, and the engineer, who watches the wheezing pumps and regulates the temperature of the ammonia ice machines, is stationed some distance away from the fireman. Patrolman Weigand found Gobel alone in the boiler room and for more

ORGANIZED C R I M E

107

than three hours he chatted with him as the fireman sliced and shoveled, turned valves, and kept up pressure. The two men sat on a bench in front of a great pile of coal, and now and then Gobel got up and walked out into a " d e a d " boiler room near by. The engineer on night duty saw the first sign of trouble, he told police afterward, on coming back from an inspection visit to another part of the plant across Chrystie Street. A sort of covered alley, where coal and supply trucks can unload, extends past the boiler and engine rooms and has entrances on both Chrystie and Freeman Street. T h e engineer, whose name was withheld because of the fear of gang vengeance, entered this alley from the Chrystie Street side and pushing open the door into the brightly lighted p u m p room saw " f o u r or five" strange men. Before he could speak, they had whirled him about, so that he could not see their faces. " Is this the guy ? " one of the men questioned. " N o , it ain't." T h e men bound the engineer hand and foot and heaved him in a corner behind the door. A moment later—it was 3:40 A.M.—Gobel got up from the bench and strode out through a brick archway into the darkness of the disused fireroom. Only the reflected glow from the fires of the active boiler room relieved the gloom; the sizzle of steam and the monotonous drip of leaky pipes emphasized the stillness. Suddenly Weigand heard a burst of firing and a scream: " T h e y ' v e got me! " Firing from the dark alleyway the gangsters had had a perfect target, as Gobel was silhouetted against the glow, and as Weigand dashed over the soft coal toward the archway he saw, even before he reached it, that he was too late. Gobel was lying on the floor, with five bullets in his body—one of which had passed through his heart, one in his neck and one through his mouth. The brick walls were clipped with slugs that had missed and the steel of the boiler casings still echoed to the sound of firing. Weigand pulled his pistol and a shot from the darkness promptly splintered his arm. The weapon dropped to the floor, and as the patrolman turned to reach for it with his left hand another bullet struck him in the hip. T h a t was all; the gangsters had gone and none had seen them go. Weigand hobbled out of the alley, firing, but he could not see his target and his efforts were futile. Handicapped by his wounds, the policeman tried to search the neighborhood and met patrolman Charles Schaffer, who helped him. After a brief and fruitless effort, Schaffer sent Weigand to the hospital and the police began their investigation, which late today had led nowhere. A car that the police believed might have been used by the gangsters was found abandoned later at Pulaski and Oliver Streets, but it had been stolen last month and its discovery held no clue.

108

CRIME AND THE

COMMUNITY

Late tonight Martin ( R e d ) Podolsky of 149 Hansbury Avenue, N e w a r k , who has been out on $20,000 bail after being indicted for murder in the Finiello case, was taken to headquarters for questioning, but the police admitted they " h a d nothing on h i m " and did not believe he had anything to do with the Gobel shooting. Podolsky was released recently when Prosecutor David announced he was not ready to try him until he had obtained custody of Newman and Albert I. Silverberg, another man wanted in the Finiello case, both of whom are on trial for murder in St. Paul. M r . David filed detainers for the two men with St. Paul police in case they are acquitted of the Western crime. Nick Delmore, said at the time of Finiello's slaying to have been the head of a N e w Jersey liquor ring and the " b r a i n s " of the Rising Sun Brewery gang, has never been found. Delmore, Silverberg, Newman, Podolsky, and Weissman and G r o s s m a n — w h o were k i l l e d — w e r e indicted in the Finiello killing, but none has ever been brought to trial. 1

If the criminal is apprehended, and conviction proves inevitable, organized crime has gone to the extent of hiring and substituting men to serve the sentences. An investigation to determine whether thirty-five known instances of substitute appearances in Federal Court on the bargain day prohibition calendar during the last six months had been the result of a conspiracy entered into between members of a cordial-shop syndicate and bondsmen in the Federal Building has been ordered by Arthur H . Schwartz, Assistant United States Attorney, it was revealed yesterday. T h e Federal grand jury, which began a general inquiry last Tuesday, when nine men serving short terms in the Federal House of Detention, were revealed as " r a p - t a k e r s " for real defendants, is expected to hand up indictments within a week. T w o additional substitutes, who, like the others, had been hired to appear under the names of real defendants and plead guilty to violation of the prohibition law, appeared in court last Tuesday. One man, who said he was Richard K a n e , who had been arrested on March 22 at his cordial shop at 44 West 106th, insisted until yesterday under questioning, that he was the real defendant, despite the fact that Palmer F. Tubbs, a prohibition agent, said he was not the same man. T u b b s , who made the arrest, described the real defendant as a heavy-set man about six feet tall, while the imposter appearing in court seemed so frail and short that Federal Judge Henry W . Goddard said: " Y o u must have gone on a d i e t . " T h e substitute for Kane, as well as ten others previously revealed, was 1A'ew

York Times, November 8, 1932, p. 44

ORGANIZED

CRIME

109

adjudged in contempt of court yesterday and will be sentenced on Monday. He finally confessed that he was not the man arrested by Tubbs. Meanwhile, David Marcus, M r . Schwartz's assistant, who has questioned five of the original defendants, revealed that he had learned through a check-up of records and photographs that at least thirty-five instances of substitution had come to light, all having been perpetrated within the last six months by fifteen or twenty substitutes. In each instance, M r . Marcus said, the government would ask the court to forfeit bonds written for the absent defendants, in most cases 8 1 , 0 0 0 each. " T h e imposters," M r . Marcus said, "explained that they had been hired for anywhere from $ 5 to $ 1 0 to go to jail for two and three day terms. Most of them came from the Bowery and were glad for an opportunity to pick up the money." J u s t who hired them to " t a k e the r a p , " saving defendants bargain-day fines of $ 2 5 each, is what the grand jury is attempting to find out. A possible charge against higher-ups in such a plot would be conspiracy to obstruct justice, which is punishable by a sentence of two years in jail and a fine of $ 1 0 , 0 0 0 . In all but two of the eleven cases recently revealed one bonding company, M r . Marcus said, had written the bonds of the defendants. According to M r . Schwartz, at least one of the understudies for the cordial-shop men said that he had been brought to court by a bondsman. One man, it was revealed, had appeared in court representing himself on separate occasions to be eleven different defendants. Last September M r . Schwartz began an investigation into the ownership and control of the city's cordial shops by two rival syndicates, each of which was said to have its union of cordial shop workers. The so-called unions, it was said, guaranteed its members protection from serving time in jail in return for moderate monthly dues and premiums of about $ 1 7 . 5 0 for each bond of $500. Some of the five cordial-shop men who appeared before the grand jury have told investigators, it was learned, that they themselves had no idea that they would be wanted in court, nor had they known that substitutes had appeared for them. 1

5. A Summary

Description

W e have here sufficient evidence to indicate that crime is an organized social phenomenon, that it embraces many persons, that it operates on a wide scale, that it depends upon co-operation and connivance b y both police and politicians, and that it lives b y defeating the law, at whatever cost. A final summary description of organized crime is found in the testimony of George E . Q. Johnson, who as United States 1

New York Times, May 12, 1933, p. 18.

110

CRIME AND THE

COMMUNITY

District Attorney gathered the evidence which convicted A1 Capone for income tax fraud. This testimony reveals the ramifications of organized crime in detail. Numerous arrests, prosecutions and killings marked the long campaign aimed solely at getting A1 Capone. T h e Federal agents worked from the outer fringes of the underworld toward the center, prosecuting the gangsters, including Ralph Capone, for any Federal offense they could uncover, from income-tax evasion to violation of the Mann act. In one case six of twenty-one men under indictment for conspiracy were murdered before they could be brought to trial and eight others connected with the case were killed.

[ M r . Johnson:] I then made up a card index. Newspaper men have amazingly accurate information. It was rather astonishing. It was not evidence, but it was very accurate information as to who the gangs were and the leaders, so I had a newspaper man make a card index of all the gangs, taking it from newspaper stories. T h e whole thing seemed to be a challenge to the government, and then I came to Washington and interested the Bureau of Internal Revenue, the Assistant Attorney General in charge, then Mrs. Willebrandt. I took it up with M r . Blair and others. I outlined to them a campaign to use the income tax laws, because I discovered that the gangs left traces. T h e y killed witnesses and obliterated their traces in other ways, but they did have bank accounts. In 1928 there were two very notorious gangsters. T h e y were the original gangsters in prohibition violations, Frank L a k e and T e r r y Druggan, and we brought indictments against them for violation of the Federal income tax law. T h e statute seems a little bit ambiguous; that is to say, where a man has an income that requires him to file, if he does not file he commits a misdemeanor, or both a misdemeanor and a felony. T h a t indictment was challenged by demurrer in those cases, and a judge from another district heard the demurrer, and he ruled against the government, which gave us quite a setback, and held they were all misdemeanors. W e laid the foundation for an appeal, but the Solicitor General did not feel that the facts in the case would warrant an appeal. But we still continued our work. These two gangsters were again indicted. And then the grand jury returned an indictment against Ralph Capone. I would like to digress here to say there were two syndicates, one in prohibition violation and one operating in violation of the State laws. A large portion of their income came from open gambling. T h e grand jury returned an indictment against a County Assessor by the name of Gene Oliver, and one of the pieces of evidence was that one of our large business houses had paid $42,500 to adjust their taxes, which they thought were excessive, and that money, a substantial part, was traced into the bank account of this defendant.

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111

Then an indictment was returned against a man by the name of Lawrence O'Brien. He had a great many contracts with the Sanitary District and Park Boards, and the indications were that they were fraudulent because invoices were made to the boards, and they paid them before the service was rendered. He had a very large income, and he never filed a return. These indictments came rather closely together, and they were all challenged by demurrer. These all came on before Judge Wilkerson. One set of counsel argued the demurrers for Druggan and L a k e ; one set argued for Gene Oliver, and the other was the Rajph Capone case. Judge Wilkerson overruled the demurrers and sustained the government, overruling the previous ruling of the District Court. There have been convictions in all these cases. They were all appealed to the Circuit Court of Appeals and Judge Wilkerson's contentions were upheld. The key case was the Ralph Capone case, and it bristled with law points and was very difficult. In coming to the A1 Capone case I would like again to digress just a moment in order for you to have a better background, to see what difficulties the government encountered. That is the matter of violence. In the Ralph Capone case, which may be used for all purposes of illustration because it is a typical gangster case of the type that we have prosecuted under the income tax laws, the government agents discovered bank accounts. There were eight or ten, and the peculiar thing about it was that about every three months one account was closed, James Carter, James Brown and so on. It was rather odd that each first name began with " J a m e s . " I subpoenaed the bankers. It was a small bank, with not more than $3,000,000 in deposits, and I personally conducted these examinations before the grand jury. The cashier of the bank was frightened to death. I did not know why. I was pressing him as to who owned those accounts, and I thought he must know, because the bank was small and usually the account shifted in three months. In one instance there was an overdraft of $4,000. And in another of $6,000, which they permitted. And in this small bank the cashier said he did not know who owned the account. Later he was very much broken down, and I was very severe with him and he wept. Later his counsel told me that every night when he came home, some gangster was there and threatened him. Here from my memorandum is a case which will help the Senators better to understand the conditions under which we had to work, and which confronted the court. Here was an indictment for conspiracy, D. C. 15677. There were twentyone defendants. Six of these defendants were murdered before the case came to trial and eight were murdered who were associated with them. Some were prospective witnesses. Fourteen murders in that case. That, of course, was unusual, but here is

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the case of one of the Capone mob, Phil Colinger. Two witnesses were murdered there and the records are replete with experiences of this kind. When we called witnesses in before the grand jury we met with this stock reply: " I f you want to send me to prison, all right, but I will not talk because you know I will be taken for a ride." That is true. I had a very painful experience when we convicted a man by the name of Basile. He was about to go to prison. He had been associated with the Juliano mob. They had sixty-two murders there in Chicago Heights in five years, and Basile gave evidence he had been a partner of Juliano; that he quarreled with him; and Juliano had paid $5,000 to a gunman by the name of Schemer Drucci to kill Basile. Drucci was shot and killed by a policeman before he could execute the murder. He gave evidence which was very helpful to the government, and just before Christmas in 1929 I took him before the grand jury and talked to him about 1 1 o'clock. We were getting ready to return an indictment, but that night he was murdered before 9 o'clock. I have had many experiences of this kind, and I am only stating this to show the difficulty. Coming up to the A1 Capone case, we had ascertained who Capone's partners were. There was a very dangerous underworld character by the name of J a c k Guzik. I live in a quiet neighborhood, where there are homes and home-owning people, and he established himself just around the corner from me, and nearly all the gangsters, strange to say, are married and bring up families. He is the conniver and the corrupter of this crowd. A1 Capone represents the force and the spectacular leadership. We had discovered these partners. First we convicted Ralph Capone, then Frank Nitti, who was a partner in these gambling enterprises; Ralph Capone's work was in prostitution and in selling beer and gambling. Nitti was on the alcohol side of the racket. I might add their overturn was very large. We traced about $700,000 to Nitti, nearly $2,000,000 to Ralph Capone. In the J a c k Guzik case we proved over $1,000,000. Of course, it is money that gives these people the power. These cases all resulted in convictions, appeals were allowed, all cases were affirmed and they were denied certiorari. The last ones, I think, are going to the penitentiary this week, that is, Jack Guzik and Gene Oliver. Lawrence O'Brien is there, and Sam Guzik, Jack's brother, is there. A man by the name of J a c k McGurn, who is said to be a machine-gunner and one of the big killers for the mob, has been convicted. He is the man who in that St. Valentine's D a y massacre is said to have killed seven men at one stroke of the machine gun—he was credited with this. The State could not get enough evidence, and I cooperated with the State's Attorney. We indicted him in Federal Court and convicted him under the Mann act.

ORGANIZED

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113

I prosecuted these gangsters for any federal violations. Two or three of their gunmen now are in process of deportation, have been ordered deported, and we used every possible weapon we could to convict them. This process of breaking down these partners was a plan to reach " A l " Capone. In every case we prosecuted we got some leads and some evidence. We were confronted with this kind of situation, that Al Capone was very shrewd in one way. He kept no bank account. our investigations we had one hand. He was always two or nearly impossible to complete

He kept no books. He signed no checks. In all check he endorsed. He never did anything firstthree removed from what happened, and it was the chain leading to him.

T h e agents kept at work, gathering evidence they worked on that case. A squad known as was organized. I may add that the gangs had ceivable the information they get. They have remarkable. Some times I thought they would It is baffling.

on income tax violations while the District Attorney's Squad spies everywhere. It is inconan intelligence system that is find out what I was thinking.

Reaching Capone had been the objective we sought for the last three years. He had one syndicate that was in the beer violations. I might add that the source of income to these gangsters comes from gambling and beer, distribution of alcohol being in small amounts, but dealing with beer they dealt with bulk and they must have an understanding with the police in order to distribute that. We encountered that many times. This squad from the District Attorney's office was led by a very capable young man by the name of Ness, who is a graduate of the University of Chicago, and he selected the squad. The plan was to cause the Capone gang to lose money. This squad took brewery after brewery, and something like thirty-five of these were very large and expensive; truck after truck that cost $4,000 to $5,000 each. They developed a system of detecting these violations and they pursued that relentlessly. That ended in an indictment against some sixty-two, and later the investigations have been pursued, and I think we now have all the men who were connected with Capone on the beer side. All of them are leaders—not all of them—but there is a dozen of the biggest leaders of organized crime. They are under indictment and will be brought to trial in the near future, and under this indictment was Al Capone. The evidence against Al Capone himself was rather circumstantial, because, of course, these leaders do not commit the substantive offense. They do not sell; they do not manufacture; they do not transport, and usually we never reach them except under the conspiracy statute. [Mr. Johnson next pictured how his agents, in daily conferences, developed cases "circumstance by circumstance," in the face of reluctant fear-stricken witnesses. More than 200 witnesses were examined and gradually the ante-

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cedents of " A l " Capone were brought out and these showed that he had been a bartender in the Bowery and a member of the Five Points gang. Going to Chicago about 1920, he worked as a bouncer and then went into gambling, in 1923 reaching the point where he bought a $4,500 car. His gambling business expanded, as was shown in 1924 when Chicago police captured a set of his books. Describing this raid Mr. Johnson said: ] In 1924 they operated three gambling places in this suburb of Cicero and the system was briefly this: When there was too loud an outcry of citizens they would move to another place. They were in three places within a short distance. Within an hour after they were raided in one place, they were going full blast in the next place. They had a bookkeeper by the name of Shumway in 1924. In a raid by police, these books had been taken and turned over to the government. The agents had succeeded in locating Shumway, but he was fearful for his life. His whole life had been spent as a bookkeeper. The books themselves were all in key numbers and disclosed no names excepting in one or two instances, so by this process of investigation, we built up a lot of circumstance against Capone. How we happened to prove his ownership of these gambling places in which these books were kept was in this manner. A young minister, by the name of Mr. Hoover, the president of the Real Estate Board and the Kiwanis Club, by the name of Bragg, and a man by the name of Morgan, secured help from the Kiwanis Club and the American Legion. They organized a raid on Capone's places, got a search warrant and went in there in the afternoon and had a constable with them. While in process of making the raid, Al Capone rushed in. It is one of the few places we have ever seen him in flesh and blood. Capone came with his trousers hastily pulled over his pajamas and rapped on the door and wanted to get in, and the man at the door said: "Who are you ? " and he said, " this is my party; I own this joint." There were some more admissions to that effect. That was our evidence of his ownership of the place with which in the trial we expected to connect up the books. Here was the great difficulty about that. These men were very courageous but after this raid, Hoover, the minister, was threatened and rough men were placed in front of his house. Bragg was assaulted and brutally beaten and kicked and maimed by having his nose crushed. Morgan was taken for a ride and shot, and Capone told them "this is the last raid you will ever make," and they were very much afraid. They, however, did appear before the grand jury, but they were very much alarmed. In the Jack Guzik case we had a gambler by the name of Reis. After Shumway left, Reis kept no books, but he testified that they had a bank roll and everything that was surplus above the required bank roll of $10,000 which they

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kept in these gambling places, was profit. Then he would buy a cashier's check with that and turn it over to Jack Guzik. Our evidence developed at various times that Capone would buy things and pay with Jack Guzik's check. W e were able to show in this investigation that he would say " J a c k Guzik is my secretary, Jack Guzik is my partner," and we intended to show that by these checks. 1

The spoils of organized crime are frequently large, especially of those types of crime that secure political protection. Just because the rewards are large the conflict over their division is bitter. While crime is organized, it is not unified; opposing factions are always trying to "muscle in " on the territory, prerogatives, and privileges already staked out by some organized group of gangsters. The natural result is war. This result is natural because the only law that can be appealed to in these conflicts over jurisdiction is force. It is a clear case of "might makes right." The final method of organized crime is murder on a large scale. During the ten-year period from 1920 to 1929 there were 2,722 murders and manslaughters committed in Chicago. T h i s total excludes homicides due solely to criminal negligence. N o sensational rise and fall characterized them during the passing months and y e a r s ; just a continuous and almoet daily repetition of the one offense, above all others, which is everywhere accepted as the final challenge to organized society. Here the agencies of law enforcement, normally ineffective and negligent, sink to still lower levels. 2

Out of 257 gang murders in the years 1923-1929 inclusive there has not been a single conviction. 3 Even more striking than the absence of a single conviction is the fact that in 90 per cent of the cases the murders have remained unsolved. In other words, the duly constituted authority of the citizenry, paid, trained, and equipped to protect life and property in the second largest city in the United States, was so helpless in the face of these killings that either it could not lay its hands upon the murderers, or it could not even state convincingly whom it suspected of these crimes. The following table gives a summary of the situation here described: G A N G MURDERS BY T Y P E AND DISPOSITION,

1923-1929 4

i. Black Hand : a. U n s o l v e d

.

.

120

b. No bill .

.

.

2 i

c. N o l l e

prosequi

1Neu>

York Times, April 3, 1932, pp. 1, 18. Citizens' Police Committee, Chicago Police Problems, 4 Ibid., p. 4. ' I b i d . , p. 4. 2The

p. 3. Chicago, 1931.

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a. Bootleg: a. b. c. d. e. i.

Unsolved Stricken off No bill Acquittal Double murder Nolle prosequi

78 2 3 3 2 3

3. Labor troubles: a. Unsolved b. Acquittal c. Pending

15 9 1

4. Rackets and other: a. Unsolved b. Stricken off Total

17 1 357

6. Crime as a Career Organized crime in the United States is institutional in character, and like all institutions it recruits its own personnel and shapes their careers. It may well be compared, for example, to organized sport. It is not one institution, but a series, with ramifications that spread over local, state, national, and even international boundaries, depending upon the particular species of crime involved. It has its codes, its ways, its prominent figures, its rank« and social status. It is an institution organized for real rather than imaginary war. And like real war it exacts a heavy toll of its adherents and enthusiasts. Like sport, too, it is a way of life fit only for the young. The striking and terrible fact about organized crime in the United States is the youth of its members. The average age of men in prison is about twenty-three years. The number of older men who are criminals is small indeed. The evidence for this fact is overwhelming. Warden Lawes said: Ofttimes, as I look over m y long line of prisoners, which shows no diminution, I ask myself whether I am running a juvenile home, a reformatory, or whether Sing Sing is really a prison for adults. Conditions at Sing Sing reflect the recent warning of the Police Commissioner of the city of N e w Y o r k , who stressed the immaturity and youthfulness of offenders. A little over ten years ago a boy slightly past 1 6 w a s convicted of murder in the first degree and sentenced to die in the electric chair.

The

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press and public rose in a general protest against the execution of a boy of such tender years. His sentence was subsequently commuted to life. In recent years several boys of 17 have been condemned to death and executed. The press and the public looked on with complacence, if not actually with approval. The notorious criminal of past decades was well in his twenties or early middle age. Killers and gang leaders today are youngsters, either still in their 'teens or just turned 20.1 T h e Police C o m m i s s i o n e r of N e w Y o r k s a i d : A most disturbing fact to the Police is the immaturity of the great majority of these criminals. In past years the criminal at the " L i n e - u p " was middle aged, intemperate, experienced in crime and limited in his activities to a special type of offense. Today the opposite. The " L i n e - u p " presents a parade of youths ranging in ages from 17 to 21, versatile in crime, who cold-bloodedly and calmly recite voluntarily, in the presence of the spectators and press, the most intimate details of the planning and execution of ruthless crimes. 2 W e are dealing w i t h a process of recruiting for a w a y of life that is fit o n l y for y o u t h . maturity.

T h e older c r i m i n a l s are f e w ; f e w of them r e a c h

T h e y are either killed on the w a y , or are sentenced to long

terms of imprisonment, or die at an e a r l y a g e f r o m " n a t u r a l c a u s e s " b e c a u s e of the tension a n d excesses t h a t the life imposes. T h e c a r e e r of the criminal begins, g e n e r a l l y s p e a k i n g , in childhood, a n d tends to end in e a r l y m a n h o o d .

In b e t w e e n — a period of s o m e

t w e n t y y e a r s of a c t i v e l i f e — t h e criminal spends a considerable p a r t of his career in prison, under suspicion, in hiding, being hunted b y the police or b y his enemies, c o m m i t t i n g d e p r e d a t i o n s ; then comes a violent d e a t h at the hands of the police or of his fellows in the c r a f t .

What

h a p p e n s m a y be illustrated in m a n y w a y s . T h e o r d i n a r y criminal lives a sort of periodic existence, in prison a n d out.

F r e e d o m is a sort of

interlude, a sort of license to c o m m i t more c r i m e s ; then a period of respite in prison, a n o t h e r release, f u r t h e r crime, a n d then another arrest if in the m e a n t i m e he h a s not been killed. A n indication of the m e a n i n g of the career as it w o r k s its w a y out in the lives of individuals is indicated b y the f o l l o w i n g : Edward, who is now in prison serving his third sentence, began his delinquent career when he was eleven years old. He was an active member of the White Hand, Junior gang. This junior gang imitated an older gang known 1 Lewis E. Lawes, " Young Criminals : The Rising Tide," in The New York Magazine, April 24, 1932. p 1. 2 Annual Report of the Police Department, City of New York, 1931, pp. 4-5.

Times

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as the White Hand. Eighteen years ago the members of this White Hand gang were as notorious as any of our present gangsters. Another gunman, leader of a rival gang, shot the leader of the White Hand gang. A t least one of the members of the White Hand gang was sentenced for murder, did a " t e n year s t r e t c h " and was released only to be poisoned by his mistress. Edward says that ten members of the White Hand Junior gang are now in the prison where he is an inmate as " s t i c k - u p " men, for carrying concealed weapons; another one has recently been tried for murder. 1

A n equally true description, even if not official, of the incidents of the career to which the young are recruited is the following : A 17-year-old youth swaggered into the Bellevue morgue yesterday morning. Under a sheet lay the body of his brother, M e y e r Shapiro, one-time " k i n g of the Brooklyn slot-machine racket," and described by police as " o n e of the toughest gangsters in the Brownsville section." He had met death at last after eighteen other attacks with pistols and knives had left him scarred but still active in the business of bootlegging, hi-jacking and other operations of the underworld. T h e youth glanced insolently around the place and asked : " W h o have you got here, Meyer or M o r r i s ? " " W h o are y o u ? " the authorities asked. H e was William Shapiro, who lived at 691 Blake Avenue, the Shapiro family home, where Meyer used to live until two years ago a gang feud sent him scurrying a r o u n d — f o r e v e r moving from turkish baths to cheap hotels to third-rate brownstone rooming houses. " H o w did you know about the s h o o t i n g ? " " A copper walked into the house and told me." William identified the body of his brother and walked away. Just a little over two months ago the same call had come to 691 Blake A v e n u e — f o r some one to identify the body of Irving Shapiro, older brother of Meyer, and his right-hand man in the gang of racketeers ruled by 25-year-old Meyer. Irving had died in the hallway of his home then, and it had been generally suspected that he had got what was intended for Meyer. It all s t a r t e d — t h i s trail that had its end yesterday in the dirty cellar entrance to a lower east side tenement h o u s e — a b o u t two years ago. Meyer had gone to Public School 84 and he and his family were considered "respectable." T h e father, Joseph ; the mother, Anna, and Rose, 20, and M a r y , 18, were all happy together, but Meyer and Irving early started to try the illicit occupations of Brownsville and East N e w Y o r k . First there was the slot-machine racket, the most profitable of them all. Meyer and his gang, according to the police, used to hi-jack rivals' machines * N e w York Crime Commission, 1928 Report, p. 350.

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119

and send them up-State for profitable operation. Then, according to the police, he managed about fifteen disorderly houses, and later became a S h y l o c k — t h e name applied to underworld figures who lend money to recently released convicts at i o o per cent interest. He coupled with this a profitable business of furnishing gunmen and " s t r o n g - a r m " gangsters for use in labor disputes or in Brooklyn's racket-ruled laundry industry. But his business had its dangers as well as its profits, and Meyer had been shot four times and stabbed on fourteen different occasions, though his greatest risks did not come until the past year when the underworld feud became active. Handsome and always well-dressed, Shapiro was not satisfied with petty profits, but wanted to "muscle i n " on the alcohol racket and make a name for himself to rival those of the gangster chiefs of Manhattan and the Bronx. T h e first " b r e a k " in an underworld feud, which developed into open warfare and which has cost the lives of five men in the past year came in July, 1930, when George D e Feo, one of the henchmen of 24-year-old Abraham Reles, alias A1 Roth, of 290 Bradford Street, was shot dead as he stood talking to his chief. Since then the Shapiro-Reles feud is said to have developed into one of the sharpest among the dozen or more gangs that control racketeering privileges in East New Y o r k and Brownsville. Joey Silvers, pugilist, was the next to go, and last July n , Irving Shapiro, 26-year-old brother of Meyer, was shot as he entered the hallway of his home. Reles and two of his men, Frank Abbonboano, 21, of 2228 Atlantic Avenue, Brooklyn, and Harry Strauss, 25, of 731 Hinsdale Street, were arrested then, shortly after a wild automobile chase, during which an attempt was made, police claimed, to kill Meyer Shapiro. Reles and his men, however, were released because of insufficient evidence, and the feud went on. Since the death of his brother, M e y e r led an even more furtive, hunted existence. He was rarely seen in his old haunts and more often he came to Manhattan. Some believed he was trying to establish himself north of the East River. On the last day of August a volley of pistol and gun shots was emptied from a speeding sedan in the general direction of a pool room frequented by Meyer at 962 Sutter Avenue, Brooklyn. T h e aim was poor and Meyer again escaped. Shapiro did not fear bullets, he always said, but he was desperately afraid of knives, and that, detectives said, accounted for the large number of times he was stabbed and the comparative scarcity of shooting assaults. His enemies knew his weakness. But Meyer met his death by pistol fire after all. A t 9 o'clock Wednesday night he was in Manhattan, the police established. About 7 A.M. yesterday his body was found in a lower east side cellar by a newsboy, who reported his discovery to the police. Detectives investigating took the man's fingerprints and found it was Meyer Shapiro. He had been shot behind the left ear.

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Police records showed that he had twice received suspended sentences but had never served a prison term. On September 4, 1930, he was arrested as a material witness in a homicide case, but was later released in $25,000 bail. The case is still pending. Detectives remembered the old feud and went over to the Pennsylvania Avenue Court in Brooklyn to pick up Reles and three of his men. The rival gang leader, Martin Goldstein, 20, of 1220 Avenue U ; Anthony Maione, 30, of 2193 Fulton Street, and Strauss, who was arrested after Shapiro's brother was killed, were charged there with vagrancy and violation of the Sullivan law after police said they had found a sawed-off shotgun, seven pistols and machine gun parts last week in a locker of a turkish bath at 602 Cleveland Street, to which Goldstein had the key. The men had been at liberty on bail since Sunday. The charges against them were continued until October 1 by Magistrate Gasper J. Liota, but detectives, waiting outside the courtroom picked up the four men and brought them to the Sheriff Street station for questioning in connection with Meyer Shapiro's death. Assistant District Attorney Saul Price aided in questioning them, but at a late hour last night no charges had been lodged against the men and police said that they claimed they knew nothing of the murder, and apparently had been able to satisfactorily account for their movements Wednesday night. 1 T h e N e w Y o r k Crime Commission, speaking of the career of crime, said: Crime statistics, however, indicate that this group, most of whom are repeated offenders, begin their careers at comparatively early ages, and commit new offenses of increased severity and with greater frequency, with advancing years. It is this development of criminal careers that constitutes a real crime wave, one which begins in childhood, increases during adolescence, continues mounting during the years of vigorous manhood, and ebbs only as old age approaches.2 B u t those who reach old age are v e r y few in comparison to the number who are recruited. T h e number w h o reform also are few. T h e m a s s — the professional c r i m i n a l s — s e e m , from all the evidence, to die as they live, b y the sword, or to end their d a y s in prison. T h e r e is apparent a r h y t h m to this l i f e — f r e e d o m and imprisonment, active depredations and passive i s o l a t i o n — t h a t gives it an almost fatalistic character. Here are the first five cases out of fifty listed b y the N e w Y o r k Crime Commission to show the rhythmic pattern in the life of the professional criminal. 1New 2New

York Times, September 18, 1931, p. 5. York Crime Commission, 1928 Report, p. 443.

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[No. i] Jan. 22, zgzg. Arrested for burglary. Feb. 26, igig. Discharged, grand jury failing to indict. July 12, igig. Held for attempted assault. Oct. i2, igig. Fined $50. Dec. 31, igig. Arrested in Brooklyn for carrying concealed dangerous weapons (revolver). Jan. g, ig20. Arrested for burglary. Dismissed on motion of District Attorney. Feb. 2, ig20. Sent to New York County Penitentiary for indefinite time. Nov. 10, ig2o. Arrested in Brooklyn for unlawful entry and burglary. Dec. 13, ig2o. Sentenced to Sing Sing for two years. Paroled April 13, 1922. Delinquent Sept. 21, 1922 and returned to prison Feb. 2, 1927. Reparoled July 19, 1927. Jan. 27, ig23. Arrested, Montclair, N. J., as disorderly person. Jan. 30, ig23. Sent to Essex County Penitentiary for 365 days. Mar. 18, ig2Ö. Arrested in New York City for felonious assault. Mar. 24, ig2Ö. Discharged. Aug. 23, ig26. Arrested in Albany for illegal possession of revolver. Oct. 7, Z926. Sentenced to six months in Albany County Penitentiary. Dec. 16, ig28. Arrested in Brooklyn for illegal possession of revolver. Jan. g, ig2g. Dismissed, Grand Jury failing to indict. Apr. 12, 1930. Arrested in Brooklyn for burglary. Dec. 12, IQ30. Sent to Sing Sing ior life on conviction of burglary, second. Used seven aliases.

[No. 2 ] Mar. 31, igo6. Received at New York County Penitentiary. Confessed petit larceny. Feb. 23, igio. Arrested in New York City for disorderly conduct. Feb. 24, igio. Sentenced to three months in the workhouse. June 5, igio. Arrested in New York for burglary. July 25, igio. Sentenced to Sing Sing Prison for two to five years. Paroled Aug. 23. 1912. Delinquent Nov. 22, 1912. Returned to prison Sept. 23, 1913. May 25, igi3. Arrested in New York City for burglary. Sept. 16, igi3- Sentenced to Sing Sing Prison for seven years. Discharged June 1, 1918. Sept. ig, igig. Arrested in New York City for receiving stolen goods. Mar. 12, ig2o. Arrested in Philadelphia, Pa., as suspicious character. Mar. 28, ig2o. Arrested in New York City for attempted burglary. Apr. 16, ig2o. Sentenced to Sing Sing Prison for ten years (confessed burglary second). Released by commutation Feb. 3, 1928; declared delinquent Feb. 27, 1929. Oct. 22, ig30. Arrested in New York City for burglary. Jan. 27, 193z. Sent to Sing Sing for natural life. Used one alias

[No. 3] June 3, 1912. Sent to Washington State Reformatory, one to fifteen years for forgery. Paroled J u l y 25, 1913. Jan. 2Z, 192z. Sent to Colorado State Penitentiary, three to five years for false pretenses. Paroled Dec. 19, 1922. Violated parole and returned Feb. 6, 1923. Discharged April 28, 1924.

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Dec. 22, 1924. Sent to Oregon State Penitentiary, five years for forgery. May 11, 1929. Held in D e s Moines, Iowa, for passing worthless checks. July 16, 1930. Arrested in New Y o r k City for forgery and grand larceny. Nov. 19, 1930. Sentenced to Sing Sing for natural life (confessed attempted forgery, third). On Dec. 3, 1930, judgment reversed. Jan. 29,1931. Sent to Sing Sing for natural life (confessed attempted forgery, third). Used two aliases. [No. 4] July 28, 1911. Arrested in Philadelphia, Pa. for rape. Discharged. Oct. 31, 1911. Received eighteen months in county prison from Philadelphia, Pa. Dec. 5,1917. Received in Auburn Prison from Tioga County on confession of grand larceny, second; one year and four months to two years and six months. Paroled Dec. 4, 1918. Declared delinquent June 24, i g i g . May 3, 1923. Arrested in Philadelphia, Pa., for larceny. Discharged. Sept. 20, 1924. Arrested in Philadelphia, Pa., for assault and larceny. May 20, 1925. Received one year in county prison. Jan. 28, 192$. Arrested in Philadelphia for sodomy. Dismissed, Grand Jury failed to indict. Sept. 6, 1927. Arrested in Philadelphia, Pa., for enticing a minor for immoral purpose; $700 bail and pending. Dec. 16, 1929. Arrested in Bronx for bigamy. Convicted and granted new trial. Nov. 6, 1930. Arrested in the Bronx for grand larceny. Jan. 22, 1931. Sentenced to Sing Sing Prison for life. Used five aliases. [No. 5] (Has been arrested in Chicago, Illinois, numerous times and has served time in the House of Correction there.) Apr. 9, 1898. Arrested in New Y o r k as pickpocket. Discharged. Oct. 28, 1898. Arrested in Baltimore, Md., as pickpocket; $500 bail to keep peace for one year. Mar. 24, 1899. Arrested in New Y o r k City for attempted grand larceny. Discharged. May 23, 1899. Held in Newburgh as suspicious person. Discharged. Oct. 27, 1899. Arrested in Philadelphia, Pa., as pickpocket. Acquitted. Held in $500 bail to keep peace for one year. Feb. 21, 1900. Arrested in Boston, Mass., for larceny. Feb. 23, 1900. Sent to Massachusetts Reformatory for one year. Oct. 13, 1900. Arrested in Dallas, Texas, as pickpocket; ordered out of city. Nov. 1, 1900. Arrested in New Y o r k City for assault and robbery. Discharged (jumped bail; rearrested and discharged). May 26, 1902. Held in Cleveland, Ohio, as suspicious person. Aug. JO, 1902. Arrested in St. Louis, Mo., for grand larceny. Discharged. Jan. 11, 1907. Arrested in N e w Y o r k City (charge not given). Sentence suspended. Mar. 8, 1907. Arrested in New Orleans, La., for larceny from person. Mar. —, 1907. Sentenced to two years. Apr. 18, 1909. Arrested in Queens County for larceny. Discharged. May 23, 1909. Arrested in Port Chester, N . Y . , for disorderly conduct. Fined $50. June 25, 1909. Arrested in Chicago, I1L, as pickpocket.

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Dec. is, 1909. Arrested in Boston, Mass., for larceny irom person, and sentenced to six months in House of Correction. 1911. Served two terras of three months each at Deer Island for larceny from person. Nov. 16, 1911. Arrested in New York City as pickpocket. Fined $10. Feb. i, 1912. Arrested in Union Hill, N . J., for grand larceny. Mar. 9, 1912. Sentenced to Essex County Penitentiary for fifteen months. July 11, 1913. Arrested in Buffalo for grand larceny. Discharged. Oct. 29, 1913. Arrested in New Y o r k City for grand larceny. Dec. 2, 1913. Sentenced to Sing Sing two years and three months (confessed attempted grand larceny, second). Discharged, October 4, 1915. Nov. 25, 1915. Arrested in Philadelphia, Pa., as pickpocket. Discharged. Jan. 7, 1916. Arrested in Camden, N . J., for safe burglary. Feb. is, 1916. Received at New Jersey State Prison for five years. June 17,1920. Arrested in New Y o r k City for disorderly conduct. Sent to workhouse. Mar. 9, 1921. Arrested in New York City for grand larceny. Discharged, grand jury failing to indict. July 11, 1921. Arrested in Toronto, Canada, as pickpocket. Deported to U. S. A. Mar. i, 1925. Arrested in Philadelphia as suspicious person. Sept. 6, 1926. Arrested in Jersey City, N . J., as pickpocket. Fined $100 and thirty days in jail. Sept. 7, 1926. Arrested in Asbury Park, N. J., as pickpocket. Fined $50. Sept. 24, 1926. Arrested in Elizabeth, N. J., as disorderly person. Dec. 11, 1926. Arrested in Newark, N. J., as pickpocket. Fined $10. July 22, 1928. Arrested in New York City for grand larceny. Received workhouse sentence on charge of disorderly conduct. Jan. 3, 1930. Arrested in New York for grand larceny and illegal possession of narcotics. June 27, 1930. Sent to Sing Sing for natural life. Convicted of grand larceny, first. Used ten aliases. 1

Unfortunately the Commission does not give the ages of the individuals cited. N o r does it give a record of their early criminal experience.

We

will therefore cite two life histories of y o u n g criminals. [Joseph Kratz] 1. Eight years eleven months : Arrested on a charge of petty stealing in the neighborhood. Involved with Reuben Silver (9 years 2 months) and an older companion. The three boys were held in the juvenile detention home and later released to their parents. 2. Ten years five months : Arrested on a charge of shoplifting in the Loop. Implicated with an older companion. Brought to the juvenile court and Joseph was placed under the supervision of a probation officer. His companion was committed to the St. Charles School for Boys. 3. Eleven years one month : Arrested in the act of shoplifting in a department store in the Loop. Involved with Max Izen (10 years 8 months). Both boys committed to the Chicago Parental School. l State

of New York, Crime Commission, Report, 1931. Legislative Document (1931) No. 114, PP- 46-48.

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4. Eleven years seven months: Released from the Chicago Parental School. 5. Eleven years eight months: Arrested while shoplifting in the F a i r Department Store in the Loop. Was in the company of Israel Rathers (8 years 6 months) and Sidney Blotzman. 6. Eleven years nine months: Arrested in the act of shoplifting in a department store in the Loop. Was in the company of Sam Leben ( 1 0 years 7 months), M a x Izen ( 1 1 years 4 months), and Sidney Blotzman (7 years 6 months). Held at police station and later released to parents. 7. Twelve years: Arrested while shoplifting with M a x Izen ( 1 1 years 7 months) and Sidney Blotzman (7 years 9 months). B o y s placed in detention home and later released under supervision of probation officer. 8. Twelve years one month: Arrested and brought to the court on a charge of burglary. Implicated with Sam Leben ( 1 0 years 1 1 months), and Sidney Blotzman (7 years 1 0 months). Released on probation. 9. T w e l v e years two months : Arrested while in the act of shoplifting. Was in the company of M a x Izen ( 1 1 years 9 months) and Sidney Blotzman (7 years 1 1 months). Placed in detention home and later released to parents under the supervision of a probation officer. 10. Sixteen years two months : Arrested with Sam Leben ( 1 5 years) on a charge of larceny of automobiles. Committed to St. Charles School for Boys. 1 1 . Seventeen years eight m o n t h s : Paroled from St. Charles School for Boys. 12. Eighteen years four months. Arrested on a charge of larceny of merchandise from a department store in the Loop. Brought to the boys' court and placed on adult probation. 1 3 . Nineteen years seven months : Arrested on a charge of larceny of merchandise truck. Implicated with two adult companions. Again placed on adult probation. 14. Nineteen years seven months : Arrested on a charge of larceny of automobiles. Was in company of M a x Izen ( 1 9 years 2 months). 1 5 Twenty-one y e a r s : Arrested in the company of Sam Leben ( 1 9 years 1 0 months) ; charged with stealing automobiles. 16. Twenty-one years five m o n t h s : Became involved in the bootlegging racket and was killed by a rival gangster.

[Max Izen] 1 . Eight years ten months : Arrested with his brother ; charged with truancy from home and petty stealing. Placed in the detention home and later released to the father. 2. Nine years eight months : Arrested with brother on a charge of petty stealing and truancy from home. Placed in the detention home and later released to father under the supervision of a probation officer. 3. Ten years three months : Arrested in Boston Store with stolen merchandise in his possession. Was in the company of two other boys. Held in the detention home one night and released to father. 4. Ten years eight months : Arrested in the act of shoplifting in a department store in the Loop. Involved with Joseph Kratz ( 1 1 years 1 month). Both boys committed to the Chicago Parental School. 5. Eleven years four months : Arrested in the act of shoplifting in a department store in the Loop. Was in the company of Joseph K r a t z ( 1 1 years 9 months), Sam Leben ( 1 0 years 7 months), and Sidney Blotzman (7 years 6 months). Held at police station and later released to parents.

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125

6. Eleven years seven months: Arrested while shoplifting with Joseph K r a t z ( 1 2 y e a r s ) and Sidney Blotzman (7 years g months). Placed in detention home and later released to parents. 7. Eleven years nine months: Arrested while in the act of shoplifting. Was in the company of Joseph K r a t z ( 1 2 years 2 months) and Sidney Blotzman (7 years 1 1 months). Placed in detention home and later released to parents under the supervision of a probation officer. 8. Thirteen years five months: Arrested with older brother and Sam Leben ( 1 2 years 8 months); charged with burglarizing two homes, stealing $ 1 4 from one and $ 3 . 2 5 from the second. Placed in the home for dependent children. 9. Fourteen years: Stole $ 1 0 and escaped from the home f o r dependent children. 10. Fourteen years two months: Picked up as a runaway and brought to courtReleased to live at home under the supervision of a probation officer. 1 1 . Fourteen years four months: Appeared in court at the expiration of a period of supervision. Since his record under supervision was not satisfactory, he was continued under probation for three months. 12. Fourteen years five months : Brought to court in the company of his brother and Sam Leben ( 1 3 years 8 months); charged with snatching a lady's pocketbook. Continued under supervision. 13. Fourteen years six months : Arrested in the company of Sam Leben ( 1 3 years 9 m o n t h s ) ; charged with shoplifting merchandise in department stores in the Loop. Released to live at home under the supervision of a probation officer. 14. Fourteen years seven months: Arrested in the company of Sam Leben ( 1 3 years 10 months) on a charge of shoplifting. Both boys were committed to the Chicago and Cook County School. 15. Fourteen years seven and a half months: Released from Chicago and Cook County School. 16. Fourteen years eleven months: Arrested on a charge of petty stealing and shoplifting. Placed in detention home and later released to parents. 17. Fifteen years seven months: Arrested on a charge of shoplifting in department stores in the Loop. Held in police station and later released to parents. 18. Sixteen years five months : M a x and two other boys were arrested on a charge of shoplifting in the Boston Store. M a x was sent to Chicago and Cook County School. T h e other boys were placed under supervision. 19. Sixteen years seven months : Escaped from Chicago and Cook County School. 20. Sixteen years nine months : M a x and four other boys were brought to court charged with breaking into a garage and stealing automobile. M a x sent to the St. Charles School for Boys and others placed under supervision. 21. Eighteen years three months : Parole from St. Charles School f o r B o y s . 22. Nineteen years two months: Arrested on a charge of larceny of automobiles. Was in the company of Joseph K r a t z ( 1 9 years 7 months). Committed to the house of correction f o r one year. 1

The career once started seems to have its own special cycle, the crimes increasing in severity, the time spent in prison increasing in length. T h e process seems all-pervasive. The N e w Y o r k Crime Commission in its study of 2 5 1 adolescent criminals who had been truants says of them that ' S h a w and McKay, op. cit., pp. 206-210.

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The felons were arraigned an average of five times, the misdemeanants an average of 4.3 times, the juvenile delinquents an average of three times and the truants an average of 1.4 during this 6 to 8 year period. Seriousness of offenses were accompanied by increased number of arraignments. 1 L i f e is lived in stealth and fear, in periods of great excitement and feverish activity alternating with prison sentences, and then an early death. T h o s e w h o live b y violence as soldiers in a w a r against society end their own careers b y violence of one sort or another. T h e y die as they lived, b y the sword, hunted down and killed, or sentenced to long terms of imprisonment. So powerful is the force of integrated habit and of organized crime as an institutional set-up that of the men once drawn into its web, few ever escape. T h e career once started tends to persist. Experiences with the courts or commitments to public and private schools for delinquent children, jails, workhouses, or reformatories, did not deter these offenders from committing other offenses.2 Y e t the rewards of the career are illusory. T h e gains are t e m p o r a r y and the fruits are evil, sorrow and bitterness. D a n n y Ahearn said, Crime does not pay because you never wind up with anything. The best is, you are going to get hurt some way, you will go to the can, and no matter how good you are to some people, you are a punk to another, and probably that guy will look for revenge to get you out of the way, so that he can make that buck. They are a bunch that are jealous, and you don't know who to trust. You wind up only in the can, killing someone—or the chair. Crime does not pay. There are your prisons. They are overflooded now. If crime paid, they would not be there. You don't get hurt through cops or courts, you get hurt through other people. When you get that pinch, you must obtain the money, you must have good friends to get the money. Crime does not pay, because if you make it you are going to throw it away anyway. Ninety-nine per cent of them are gamblers, and you wind up losing your money. You wind up getting killed or electrocuted. You throw it away in cabarets, you are a habitual drunkard, and you turn out to be a pipey; and it does not pay. 3 BIBLIOGRAPHY AHEARN, DANNY. HOW to Commit

a Murder.

Ives Washburn, Inc., N e w Y o r k , 1930.

N e w Y o r k C i t y Police Department. Annual Reports, especially 1931. ASBURY, HERBERT. The Gangs of New York. A l f r e d A. K n o p f , N e w Y o r k , 1928. J New 2 Ibid.,

York Crime Commission, 1928 Report, p. 447. 3 Op. cit., pp. 252-253p. 315.

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CRIME

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Association of Grand Jurors of New York County, New York. Criminal Receivers in the United States. 1927. BOETTIGER, JOHN. Jake Lingle, or Chicago on the Spot. E . P. Dutton & Co., New York, 1931. BRACE, CHARLES LORING. Dangerous Classes of New York. Wynkoop & Hallenbeck, New York, 1872. Chicago City Council, Committee on Crime. Report. Chicago, 1915. The Citizens' Police Committee. Chicago Police Problems. The University of Chicago Press, 1931. COLQUHOUN, PATRICK. Treatise on the Police 0} the Metropolis. J . Mawman, London, 1806. CONBOY, MARTIN. "Organized Crime as a Business," etc. New York University Law Review, Vol. 7 (1929), 3 3 9 - 3 5 1 . CRAWFORD. F. MARION. Southern Italy and Sicily and the Rulers of the South. The Macmillan Company, New York, 1914. FELSTEAD, SIDNEY T. The Underworld 0} London. E. P. Dutton & Co., New York, 1923. FLYNT, JOSIAH. The Powers that Prey. McClure, Phillips & Co., New York, 1900. HALL, JEROME. Theft, Law and Society. Little, Brown & Company, Boston, 1935. HOOVER, JOHN EDGAR. "Plastic Surgery and Criminals: The Surgeon's Responsibility." American Journal of Surgery, Vol. X X V I I I (April, 1935), p. 156 ft. HOSTETTER, GORDON L . , and BEESLEY, THOMAS Q. It's

a Racket.

L e s Quin B o o k s ,

Inc., Chicago, 1929. Illinois Association for Criminal Justice. Illinois Crime Survey. Chicago, 1929. Especially Part I I I , "Organized Crime in Chicago," by John Landesco. JUDGES, ARTHUR V. The Elizabethan Underworld. G. Routledge and Sons, Ltd., London, 1930. LASHLY, ARTHUR V. The Professional Criminal and Organized Crime. Report to the Section of Criminal Law and Criminology of the American Bar Association, 51st annual meeting, July, 1928. Chicago, 1928. LAWES, LEWIS E. "Young Criminals: The Rising Tide." The New York Times Magazine, April 24, 1932. LIPPMANN, WALTER. " T h e Underworld, Our Secret Servant." Forum, January, 1 9 3 1 , pp. 1-4. " T h e Underworld, a Stultified Conscience." Forum, February, 1931, pp. 65-69. MCCONAUGHY, JOHN. From Cain to Capone. Brentano's, New York, 1 9 3 1 . MCDOUGALL,ERNESTD. (ed.). Crime for Profit. The Stratford Company, Boston, 1933. MOLEY, RAYMOND. Tribunes of the People. Yale University Press, New Haven, 1932. National Crime Commission. Proceedings of the National Conference on the Reduction of Crime, November 2 and 3, 1927. The Law Reporters, New York, 1927. New York Crime Commission Reports. Legislative Documents. Esp. 1928, 1930, 1931. PASLEY, FRED D. Al Capone, The Biography of a Self-Made Man. Ives Washburn, Inc., New York, 1930. SALTER, J . T. Boss Rule: Portraits in City Politics. McGraw-Hill, New York, 1935. SHAW,CLIFFORD R.,and MCKAY, HENRY D. "Social Factors in Juvenile Delinquency." National Commission on Law Observance and Enforcement, Report No. 13, on The Causes of Crime, Vol. II. Government Printing Office, Washington, D. C., 1 9 3 1 . SULLIVAN, EDWARD DEAN. The Snatch Racket. The Vanguard Press, New York, 1932. TERRErr, COURTENAY. Only Saps Work. The Vanguard Press, New York, 1932. THRASHER, FREDERIC M. The Gang. The University of Chicago Press, 1927.

CHAPTER

V • Politics and Crime

1. The Gang as a Political

Instrument

The connection between politics and crime has already been mentioned ; now it is necessary to give these allusions concrete form. It is clear from the evidence in hand—and all the evidence is not in—that a considerable measure of the crime in the community is made possible and perhaps inevitable by the peculiar connection that exists between the political organizations of our large cities and the criminal activities of various gangs that are permitted and even encouraged to operate. This is not meant as a condemnation of our politics. We cannot condemn our politics without condemning our community. They are so closely entwined that the good and the evil go together. Our large cities, our industrial policy, our system of taxation, our police organization, our popular election of judges, our political appointment of court attendants, our standards of legal training, our notions of justice, our emphasis upon monetary income, our sense of politics as a game to be played between contending factions for the spoils of office, are all bound up in the process of political influence upon, and perhaps political control of, the judicial process, especially as it reveals itself in the lower courts of our large cities. Ultimately we may change that control and influence; and when we have done that we shall have changed many of the forces that make for the kind and the character of typical crime in our large cities. But when we have done that the community itself will have changed to so marked a degree that these problems will have altered their form and become incongruous in our social structure. At present, evil and unhealthy as the relationship between crime and politics is, it is still to be taken as a typical, that is as a natural and inevitable, aspect of the kind of community we have. Something of the flavor of political practices that characterize certain communities is illustrated by a series of charges against Senator Huey P. Long by a group of citizens in Louisiana. Charging Senator Long with personal dishonesty, corruption, immorality, with controlling the State Legislature, making elections a farce, with racketeering and bribery, former Governor John M. Parker and other Louisiana citizens

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petitioned the Senate today to investigate these accusations and eject the Senator if they are found true.

The petition filed with the Senate making charges against Senator Long read as follows: We, the undersigned citizens of the United States and residents of the State of Louisiana, respectfully represent the following with reference to the discontinuance in office of Huey P. Long, a member of your honorable body from Louisiana; and ask that you cause to be taken such action as is found just, proper and necessary to maintain the dignity of the Senate and to insure to the people of this State the representation of a right they should have. We are ready and willing, subject to the convenience and order of the Senate, to furnish names and addresses of witnesses and the location of evidence that will establish the following facts in support of the charge that the said Huey P. Long has demonstrated his unfitness to serve as a member of your body: 1. The said Huey P. Long is personally dishonest, corrupt and immoral and his continuance in office is repulsive to the respectable and law-abiding citizens of Louisianna and to the nation. 2. The said Huey P. Long has created and maintained in Louisiana a system of corruption and debauchery unparalleled in the history of the State, not even excepting the so-called Louisiana lottery. 3. The said Huey P. Long, both while Governor and as United States Senator, has operated a system of so-called racketeering, levying on and collecting from numerous persons, firms and corporations engaged in business relations with various departments and institutions of the State government, money tribute for himself personally, for his political advantage and for enriching himself and certain of his associates. 4. The Bureau of Internal Revenue of the United States is publicly known to have conducted an extended investigation of the conditions created by the said Huey P. Long in Louisiana and his manipulations in said State, as well as persons associated or allied with him, and the bureau must have in its possession detailed and specific evidence of the violation of the Federal income tax law and other laws, otherwise the investigators would not have been kept on the case for such an extended period. N o doubt this evidence can be made available to the Senate. 5. The said Huey P. Long, by his corrupt methods and misuse of power, has gained control of a majority of the Legislature and no relief can be obtained from that source. The said Huey P. Long has boasted publicly that he controlled members of the Legislature like a deck of cards, shuffled them about at his will and bought them like loads of potatoes. The said Huey P. Long has corruptly dictated the appointment of members of the Legislature to

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lucrative positions in various State departments, in direct violation of the State Constitution, for the purpose of controlling their official action. T h e said Huey P. Long, while Governor, escaped impeachment by the Legislature by bribery and other corrupt methods. 6. T h e said H u e y P. Long has interfered in the election of justices of the Supreme Court and of judges of district courts by corrupt methods. H e has declared openly that he controlled State courts; and actions and decisions of some of the courts, notably the Supreme Court, indicate that he exercises a domination over them. Relief from the courts under existing conditions is impossible. 7. T h e said Huey P. L o n g dominates and controls the existing State administration, headed by O. K . Allen, Governor, and Allen and most of his associates in office are mere puppets in the hands of the said Huey P. Long. There is no possibility of relief from the Allen State administration. 8. T h e said Huey P. L o n g compelled State officials and State employes, in departments and institutions under his control, to contribute percentages of their salaries to a corruption fund that was dispensed under his direction. T h i s huge fund has been used to debauch the electorate of the State and for other corrupt purposes. 9. T h e said Huey P. L o n g has created conditions in the State that have made elections a farce. Padding of registration rolls with fraudulent names, fraudulent voting, ballot box stuffing, tampering with election returns and bribery are a common practice. W i t h these conditions existing, a fair and honest election is out of the question. 10. During the administration of the said Huey P. Long as Governor of Louisiana more than $150,000,000 in bond-issue money and in funds derived from taxation have been spent b y the Louisiana Highway Commission and other State agencies controlled and dominated by the said Huey P. Long. Of this vast sum, a conservative estimate is that at least $10,000,000 has been used for what is commonly known as graft and for corrupt purposes. T h e said Long is personally responsible for this condition. 1 1 . T h e said Huey P. L o n g while Governor and since he became United States Senator, has used the power and authority of the State Banking Department and of the Louisiana T a x Commission for purposes of coercion, intimidation and for his own selfish and political ends. Because of the corruption of the systems of justice there is no assurance in endeavoring to obtain relief by action in the State. T h e only hope for relief is through the Senate of the United States and Federal agencies. Therefore we appeal to you, as President of the Senate, to cause the proper investigation to be instituted and conducted, that the specific facts and instances in support of the above charges may be presented. Evidence is available, by the use of the proper processes of the Senate, to substantiate all charges. 1 1New

York Times, April 14, 1933, p. 1.

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T h e political machine as we know it in the large cities draws its sustenance from various sources. Among others, these sources are the illegitimate activities of certain groups that are allowed to operate for a price. The situation is not always as simple as that. The protectors of gambling joints, of houses of prostitution, dance halls, and "speakeasies," may themselves be members of the political organizations or occupy important places in them. In fact, the leader of a political club may be the chief beneficiary of the illicit activities that go on in his district. T h a t has certainly proved true in more than one city and on more than one occasion. In districts where illicit activities exist and are protected, gangs flourish. T h e gangs thrive on the illegal activities, and the local political group thrives with the aid and support of the gangs. It is a sort of mutual arrangement for mutual profit, and to protect their respective privileges and immunities they exert themselves to control the machinery of government, and stop at no effort requisite to their purpose, the control of elections. T h e usefulness of gangs to the political organization at the time of elections is indicated in an illustration from the Chicago area, one which could be duplicated many times in other cities. [Primary election, April, 1924, Chicago and Cook C o u n t y ] Pre-election

Preparation.

Trouble started [in Cicero]- when Election Com-

missioner Czarnecki scratched over three thousand names of Republican voters from the register list. Czarnecki discharged large numbers of clerks, watchers and judges, and others were appointed by him in their places. Beer runners, anxious to win control of beer supplies in Cicero away from Torrio, aligned themselves on the side of the Democrats. T h e Torrio-Capone gang and their followers became active and, after a reign of terror, the Republican ticket was elected. T h e Monday night preceding the election gunmen invaded the office of William K . Pflaum, the Democratic candidate for clerk, beat him and shot up the place. The Gangsters'

Busy

Day.

Automobiles filled with gunmen paraded the

streets, slugging and kidnapping election workers. Polling places were raided by armed thugs and ballots taken at the point of the gun from the hands of voters waiting to drop them into the box. Voters and workers were kidnapped, brought to Chicago and held prisoners until the polls closed. Stanley Stanklevich, 1528 South Fifteenth Avenue, a Democratic worker, was among the first kidnapped. He was held a prisoner in a basement until eight o'clock. Michael Gavin was kidnapped and found shot through both legs; he was imprisoned with eight others.

Seventy patrolmen, two for each of the thirty-five pre-

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cincts, five squads from the detective bureau and nine flivver squads, were deputized by Judge Jarecki and rushed to Cicero to drive the gunmen to cover. The climax of the reign of violence was a gun battle between Capone gunmen and the squad. The machines carrying the police had just passed the polling place when three men appeared and opened fire with pistols. The policemen blazed back with shotguns and rifles. Approximately fifty shots were fired when one man fell, dead, and another was wounded. The dead man was Frank Capone, brother of Scarface Al. The wounded man was Dave Hedlin.1 In addition to these extremes of open warfare with pistols and machine guns, gangs have other ways of favoring their allies and protectors in the political organization. They play their role in keeping their friends in power by padding registration books through the insertion of fictitious names; by keeping duly appointed election officials away from the polls through kidnapping or intimidation, so that the "regular" organization man can be substituted; by deliberately invalidating the ballot of an unfriendly voter through failure on the part of election officials to initial it; by filling in spaces left empty by voters or by double marking and so invalidating; by wrong transporting of totals from the tally sheets; by "doctoring" totals already transported; by the substitution of tally sheets; by the substitution of ballots marked so as to elect the desired candidates; by registering vagrants and hoboes who are nonresidents; by making false statements as to length of residence; by deliberately importing and housing hoboes and gangs; by extensive preelection activity and pledge cards; by stuffing ballot boxes before the polling place opens; by stealing ballot boxes by armed force before the counting begins; by intimidating the tally clerks and forcing them to count fraudulent votes; by giving voters marked ballots; by voting for former residents in the districts; by voting for those who have failed to register; by voting for those who fail to appear early, and thus depriving them of the right to vote on the ground that they had already voted; by taking ballots to bed-ridden voters but using them for other purposes; by shooting up polling places and driving voters away; by kidnaping party workers; by slugging them; by controlling the local police through threat of demotion or promise of reward; by deliberate murder of the most obstreperous opponents; by forcing local business men to supply transportation for fraudulent voters. Some or all of these activities may be resorted to in a heatedly disputed election. 2 The connection between the city government and the corrupt elements in the community is established in many different ways, from the ap1

Landesco, op. cit., p. i o n .

2

Landesco, op. cit., pp. 1017-1031.

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133

pointment of the police officials to the disciplining of policemen w h o will not wink an e y e a t " s a c r e d c o w s " (that is, establishments under official protection), the collection of g r a f t b y the police for such protection, the influencing of local magistrates b y the captains and bosses of districts, the appointment and influencing of the clerks and court attendants, and the using of the " p u l l " of local leaders in defense of individuals arrested in connection with activities tolerated b y the political powers. H o w all this has arisen is not our concern. It has come about in rapidly growing cities with large foreign groups which could be used to secure control of the machinery of the g o v e r n m e n t ; the control of the racial groups w a s possible by the extension of f a v o r s ; the f a v o r s involved protection from interference b y the police; and this protection in its turn involved permission for the favored to carry on activities nominally against the law (such as speak-easies and houses of prostitution) but protected for a consideration and for the mutual profit in the relationship. T h e reason w h y this has happened so often and continues to happen at present is that the political machine gets much of its revenue from these activities. It is a fact generally recognized b y all the serious students of our city politics that, as Judge William S. K e n y o n has said, " T h e revenue of these gangsters comes from gambling establishments, dance halls, houses of prostitution and other vice dens and not entirely from beer and other liquors." 1 T h e local political machine, too, draws its own revenues to a considerable extent f r o m these very sources.

" T h e sinews of w a r for

local political rings are derived chiefly from organized or exploited vice, and organized or exploited law b r e a k i n g . " 2 T h e connection, therefore, between local city political clubs, machines, parties, leaders and henchmen, and the criminal groups operating in that city is to be found in the pecuniary emoluments that are to be derived from such connections for the p a r t y as well as for the individuals in the party. T h a t the p a r t y receives its share of the profit from law-breaking activities has been asserted from so m a n y different sources and proved so often that only one other authoritative quotation, from the respectable source of a federal report, will be presented here. While there are many other sources from which the political bosses secure contributions, in the main the funds which really make successful campaigns possible, come from the owners and habitues of vice, gambling and bootlegging ' W i l l i a m S. K e n y o n , statement in Report on Prohibition, N a t i o n a l Commission on L a w Observance and E n f o r c e m e n t , Washington, J a n . 7, 1931, p. 133. T h e student is referred to the entire statement, pp. 117—137. 2

Pound, op. cit., p. 183.

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resorts. Accordingly, every effort is directed toward securing the appointment of a police executive favorable to their cause, one who will take orders without hesitancy. 1 A corroborating bit of evidence is from a gangster, w h o s a i d : He'll tell you that if so and so gets elected, he will see that you get f a v o r s — gambling, etc. I know for myself I ask for $50,000, but he says he cannot give up money, but will give me concessions of either crap games or card games or clearing house numbers on the Stock Exchange. That's a good proposition, and you can make a lot of money that way, but it's always best to do on a cash basis, although in 90 cases out of 100 you never get cash. So you fix it up and tell him O. K. 2 T h e criminal, the gangster, the racketeer is allowed to operate not only because he is useful in the election of candidates, and contributes to the w a r chest of the p a r t y , but also because he apparently contributes to the private fortunes of his protectors as well, as w a s clearly enough revealed in the Seabury investigation in N e w Y o r k C i t y . T h e usefulness of local gangsters and hoodlums during a contested election was illustrated in 1933 in N e w Y o r k , where four men were convicted for election frauds. As an object lesson to violators of the election law, Federal Judge John C. Knox sentenced yesterday two Democrats and two Republicans, who had served as election inspectors last November in the Fourth Assembly District, to serve two years each in Northeastern Penitentiary, Lewisburg, Pa.

The inspectors in the present case, all from the Eleventh Election District, had been convicted a week ago of having conspired to return a false canvass instead of using the true totals shown on a voting machine in Public School 1 xo at Cannon and Broome Streets.3 T h e relationship is also useful to the criminal because he insures for himself a species of defense against the law b y m a k i n g an alliance with the elements that control the machinery of the law. H o w this operates in its various ramifications is a characteristic bit of " r e a l p o l i t i c s " as it exists in our large cities. 1 August Vollmer, David G. Monroe, and Earle W. Garrett, "Police Conditions in the United States." National Commission on L a w Observance and Enforcement, Report on Police, p. 46. Report No. 14, Washington, 1931. 2 Ahearn, op. cit., pp. 89-90. 3 New York Times, May 3, 1933, p. 36.

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2. The Function of the Politician From whatever angle we begin an analysis of the complex intertwining of politics and crime, we always come back to the central point, which is that it is a mutually advantageous arrangement for the machine on one hand and for the criminal gangs on the other. T h e machine and its members increase their power and their emoluments. The criminal gang assures to itself both a greater and more secure income and, still more, an element of safety which makes the game of criminal depredation less hazardous than otherwise it might prove. It would be unfair on the whole to accuse the local political bosses and their henchmen of deliberately encouraging and protecting crime. What we must admit is that the local political figures find a situation already in existence, a going concern with varied ramifications that reach into every part of the political structure of the community and that reflect the temper and character of the public and private morals of the people concerned with the affairs of the community, concerned in the sense of being more or less consciously occupied with governing and profiting at the same time. The politician himself is a product of the situation. He did not create it. It created him. His very power is proof of his adaptability, of his implicit acceptance of the situation as it is. T o ask him to change is to ask him to undo what has given him power and influence, what has given him his friends, fellows, and contacts; and, still more important, what has given him his point of view, his attitudes, his beliefs and ideals. Not that he would defend evil as against virtue. The issue is not so clearly drawn as that, and in the nature of the case cannot be so drawn. It is a question of a certain kind of government as against a possible other kind. He knows only the kind he finds about him. The ideal, the reformer's government, is nonexistent and, for the matter in hand, beside the point. So the politician plays with the kind of instrument—the political machine—that is at his hand. That instrument is faulty and subject to all sorts of pull and manipulation, but it is the only one available for the purpose and the only one he knows how to operate. He is not a criminal or a protector of criminals; such an imputation is too harsh, too direct, too inaccurate. He is a politician who deals in the complex conflicts and passions, needs and interests, greeds and desires, honest and dishonest, of the community about him. He compromises with the world and in the process carries on his function of conciliator, boss, leader, and he is compensated by such products of power, fame, good will, and influence

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as he is able to acquire in the process. And the process involves extending favors. Favors take many forms: appointing some one to the job of city magistrate in return for party loyalty; going to the magistrate to ask that a certain common friend who was helpful in the last election be easily dealt with; securing the appointment of a clerk of the court who will keep an eye out for common friends, good and bad (the distinction is unimportant in the business of politics and governing by bargain and f a v o r ) ; asking the District Attorney not to press a certain indictment; " f i x i n g " tax assessments; letting contracts to certain firms; getting jobs for constituents; furnishing coal and food to needy voters; securing licenses for certain establishments; taking care of jury summonses and traffic tickets. All these elements are part of the game as it is played, and indignation when it does arise is at the details of the system rather than at the system itself. And it is the system that is at issue. The system is only the sum of the details. So we have the situation in the larger cities, where criminal and political activities in certain aspects cannot well be distinguished except in formal logic, and logic serves only the purposes of indignation and chagrin and leaves the major issue untouched. Specific illustration of this process may be had from the Seabury investigation in the city of New Y o r k . How do magistrates secure office? The answer is simple. T h e y secure office as a political favor in reward for political work, for political favors rendered, for political influence exercised for the benefit of the leader who now returns the past confidence by helping to promote the " w o r t h y " to the responsibility of office. How did some of the New Y o r k magistrates secure their positions ? Let them tell their own story: [Magistrate D r e y e r : ]

I simply w e n t around to m y organization at the

t i m e , which w a s t h e 25th, and I spoke to George D o n n e l l a n , w h o w a s t h e leader a t the time, h e is a General Sessions C o u r t J u d g e . I s a i d : " L i s t e n , — " he w a s not a Judge a t the t i m e — I s a i d : " L i s t e n , George, for eighteen y e a r s I n e v e r k n e w w h a t a reference or a receivership or guardianship was, never g o t a 5-cent piece, never held a political office. H e r e is m y position, m y practice a b s o l u t e l y gone, the N a t i o n a l V a u d e v i l l e Artists settle their differences w i t h the A c t o r ' s E q u i t y w h o settle their differences through P a u l T u r n e r , w h a t a m I going to do ? I think I a m entitled to get a j u d g e s h i p for all I h a v e done for eighteen y e a r s , spent m y time three times a week, never asked for a n y t h i n g , never bothered about references," I said, " I recognition."

think I am entitled to some

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CRIME

"Well," he says, " I will be honest with you, you are entitled to some recognition. You never annoyed or bothered me, other lawyers were after me to 9ee what I could get for them." I said, " I think I am entitled to it." 1 It is clear that Magistrate D r e y e r asked and received recognition as a favor returned for past loyalties and services rendered. Magistrate Weil, asked w h y he felt himself a logical candidate, observed : Because I felt I should have had a job before Tobias had. I had been of much more service to the organization than Tobias. For twenty years I was a public speaker enunciating the principles of my organization in the streets, using my voice during campaigns, spending my evenings at the clubhouse trying to help those in the district after I became an attorney by being a free eleemosynary institution around there for years and rendering much more service than I felt I should have rendered for the organization. I will say this now, I have always and I frequently complained that I have not been adequately rewarded for my work for the organization. I feel that I should have been elevated to a much higher bench many years ago.2 A clear sense of grievance over insufficient reward for political work is evident. Magistrate M c Q u a d e s a i d : Well, I was active around in politics, and so on. . . . Why, I asked Mr. Murphy, who was the head of Tammany Hall, if he saw fit to give me the long term. Of course, I asked him to speak to the Mayor, if he would, at that time Hylan, and he did, and Hylan gave me the long term.3 Magistrate Gottlieb said: I have been a member of Tammany Hall over 40 years. . . . Judge Rittenberg, my predecessor, was very sick. I had known Moe Rittenberg for probably 30 or 35 years. A call came for a man to fill his place, as temporary magistrate. I spoke to Briarly. There seemed to be no logical man for the position but myself. After all, I had spent money, time and help to build up the organization. 4 Judge Silbermann was a s k e d : Q. Now, Judge Silbermann, what I am anxious to have you state, if you will, and if you know, is just why you, Jesse Silbermann, were selected to be J N e w Y o r k State Supreme C o u r t . Appellate Division, First Judicial D e p a r t m e n t , Investigation of the Magistrates' Courts in the First Judicial Department and the M a g i s t r a t e thereof, and of A t t o m e y s - a t - l a w Practicing in Said Courts. Final R e p o r t of Samuel Seab u r y , Referee, pp. 3 1 - 3 2 . N e w Y o r k , M a r c h 28, 1932.

« S e a b u r y , op. cit., p . 34.

sIbid.,

p. 35.

4Ibid.,

pp. 36-37.

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magistrate up there rather than some other Hebrew up there in the Bronx who was a member of the bar in good standing. A. I have stated the reasons. I was active in the party ; I was chairman of the Law Committee of the Democratic party up there prior to my appointment ; I was active in politics. 1 I t m a y not be true, b u t it would not be unfair to surmise that all magistrates in N e w Y o r k C i t y or in a n y other city were appointed in recognition of p a r t y service or of specific l o y a l t y to the local district leader. P u b l i c life is not lived in a v a c u u m . Ordinarily persons cannot be elevated to responsible office unless they h a v e proved their worth and ability in one w a y or another to those w h o h a v e the power to bestow such offices. In our large cities politics is often a matter of group loyalties involving racial and religious groups. T h e N e g r o e s in C h i c a g o secure — a n d r i g h t l y — s o m e share of recognition in the politics of the city ; so do the Italians, the Germans, the Poles, a n d the Jews.

I t would

perhaps be better if such distinctions did not exist. B u t if they did not exist our large cities and our c i t y politics would h a v e a v e r y different history and a v e r y different composition. I n N e w Y o r k it is k n o w n that the " S t e u b e n S o c i e t y " is active in the election of judges. I t is clear that M a g i s t r a t e Vitale was recognized as representing the Italians in his district, and Magistrate Silbermann said quite f r a n k l y , " I learned that the m a y o r decided to appoint a H e b r e w f r o m the B r o n x . " 2 T h e description of the relation between the lower courts and the political machine cannot help but dishearten the aspirant for a better judiciary. T h e r e is only one road to improvement : an insistence b y the voters that their judicial servants maintain high standards of conduct while running for office as well as while o c c u p y i n g the bench. F o r here w e are dealing with an elected judiciary. D e a n P o u n d said : The high-water mark of corruption under the Tweed régime in the last century is rightly regarded as exceptional. But something very like it is appearing in petty courts, and even in criminal courts of first instance, in more than one large city of the present. What is worse, mediocrity, timidity, susceptibility to political pressure and influence, the usual concomitants of an elective bench in metropolitan cities, create suspicion of corruption where it does not exist. The advertising judge, the spectacular judge, the judicial "good fellow," the judge who caters to groups and societies and identifies himself with racial and religious and trade organizations, has much to do with the ineffectiveness of the machinery of justice. 3 1 Seabury,

op. cit., p. 41.

2 Seabury,

op. cit., p. 48.

»Pound, op. cit., p. 192.

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3. The Court's

Satellites

I n a d d i t i o n t o the m a g i s t r a t e s the c o u r t a t t e n d a n t s , generally, n o t only a r e m e m b e r s of political organizations b u t receive their a p p o i n t m e n t s t h r o u g h political f a v o r , a n d usually in recognition f o r services r e n d e r e d to t h e p a r t y , or t h e club, or t h e organization, or t h e leader. O n e court clerk a f t e r a n o t h e r testified t h a t h e w a s active in his district political club a n d t h e district leader s u p p o r t e d his a p p l i c a t i o n for the job. Q. Now when you were first appointed to the Department of Correction who sponsored your appointment ? A. Mr. Halliman (the then leader of the club). Q. And did he also sponsor your appointment as court clerk ? A. Yes. Q. What was your position in that [the Chickopee Democratic] Club? . . . A. I had been acting secretary, or assistant to the secretary. 1 A n o t h e r example of this sort is the f o l l o w i n g : Q. Are you a member of a Democratic Club ? A. Yes. Q. What is the name of the club ? A. The John F. Curry Association. Q. John F. Curry, and Curry, of course, is the leader of the club ? A. Yes, the district I was born in and still live on the same avenue where I was bom. . . . Q. Now, when you were appointed corporation inspector, who sponsored your appointment ? A. Mr. Curry. Q. Mr. Curry did? A. Yes. Q. And when you were appointed a Clerk of the First District Court, he also sponsored your appointment ? A. Mr. Curry, yes. Q. Were you active in the club ? A. For 25 years, but never held no political jobs. Q. Were you ever a captain ? A. I was more than a captain. I was very active. 2 I n N e w Y o r k C i t y " o f t h e f o r t y - e i g h t Assistant C l e r k s w h o were examined, t h i r t y - n i n e s t a t e d t h a t t h e y h a d been or w e r e m e m b e r s of 1

Seabury, op. cit., pp. S7-S8.

2

Ibid., p.

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political district clubs." 1 In regard to these positions of clerks and assistant clerks, in spite of the fact that they are civil service appointments, there is shown " a remarkable tendency for people who have political connections to come out at the head of the Civil Service list at times." 2 T h a t this is clear is evidenced from the number of clerks and assistant clerks in the New York courts who were active politically. A substantial number of these clerks were captains of election districts for the local Democratic clubs; others held offices in the clubs, or were members of their county committee. Sixteen clerks in the Magistrates' Courts in the First Judicial Department admitted upon examination that they were active politically, their appointments were rewards given for service within their political organizations. T h e great majority of them had no previous experience or actual knowledge of court procedure or any form of preparation for the duties which they were called upon to perform upon their appointment, a number of them having previously held other city jobs of an entirely different character, to which they had likewise been appointed upon political considerations. 3

T h e position of clerk in the court is important in that he seems to perform the function of a link between the "world of politics and the lesser world of the court." As will be seen a little later, the clerk, especially in the individual magistrate courts, determines to a large degree the administrative efficiency of the court. The control of the appointments of both the magistrates and the clerks gives the district political leader a degree of access to the courts and influence in them that if misused may become a source of considerable corruption. T h e political club, in addition to being the source from which the magistrates and court clerks tend to originate, also becomes the place where other persons having business in the courts congregate and associate in the common enterprise of carrying on political activity. In the club is to be found, in addition to the magistrate and the clerk, also the bondsman, who is frequently an important personage in the political set-up of the local organization; there too are to be found the criminal lawyers who habitually practice in the lower courts; there too is to be found the "fixer," and not infrequently the gangster himself. All these elements establish friendly relationships in the common enterprises of politics, and when their activities are transferred from the club to the magistrate courts these same persons carry on with the added confidence in each other that has arisen from long association in other than judicial 1 Seabury,

op. cit., p. 63.

2

Ibid., p. 64.

3 Ibid.,

pp. 58-59.

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CRIME

141

activities. Nothing said here is by implication to be taken as condemnation. It is rather description and explanation of how it has so frequently come about that the local political organization, the magistrate, the clerks of the courts, the court attendants, the assistant district attorneys, the bondsman, the petty criminal lawyer, the "fixer," the police, and the criminal have succeeded in working toward a common end. T h e bondsman, if he is ambitious, may become a candidate for public office. T h e Chicago Crime Commission charged a Republican candidate for nomination as clerk of the municipal court in Chicago with the following : H e has signed scores of bonds covering charges of nonsupport of wife and children, disorderly conduct, fornication, assault with a deadly weapon, burglary, robbery, larceny, receiving stolen property, possessing intoxicating liquor, confidence game and speeding. In the Criminal C o u r t he has signed bonds for defendants charged with murder, assault with intent to murder, manslaughter, larceny, burglary and similar crimes. 1

Or the bondsman may reveal his political connections by holding public office outside the court. Anthony Iamascia, who was reported to have written "95 per cent of all the bail bond business of the Bronx . . . was receiving a salary as . . . assistant supervisor of the Department of Public Markets." He was at the same time general agent of the Greater City Surety and Indemnity Company with several agents employed under him.2 That this relationship between politics, politicians, and bondsmen is not confined to Chicago or New Y o r k may be seen from the statement of Judge Hugo Grimm in the St. Louis Post-Dispatch, October 21, 1926, that the bondsman . . .

is frequently active in ward politics and has a large following among

the lawless, a very considerable class in the large cities ; he contributes liberally at times to the campaign of some candidates, usually for an office having to do with administration of criminal law.

T h e bondsmen and the shyster lawyers who hang around the New Y o r k magistrates' courts share common offices and common telephone, and split their fees. 3 That a relationship extends from magistrates, clerks, court attendants, bondsmen, criminal lawyers, upon occasion at least, to the gangsters, gamblers, and criminals is also evident. It is •Raymond Moley, Our Criminal Courts. New York, 1930, p. 52. J Seabury, op. cit., p. 112. "Seabury, op. cit., p. m .

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apparent from the fact that Magistrate Vitale borrowed $50,000 from Rothstein, the gambler who was murdered outside his own establishment, that such relationships exist. The political atmosphere is such that these relationships can be established and maintained. At a dinner given to the magistrate a number of well-known gangsters and exconvicts were present as guests. If these persons or their bondsmen are brought before such a judge it is clear that other factors than that of the law or of guilt or innocence enter into the situation. The description of the general atmosphere within which crime develops also contributes to an explanation of how it is possible for such phenomena to continue for long periods of time, how in fact these relationships may acquire the features of a normal situation. The ramifications of the relationship that exists between politics and crime are not always easy to trace. It is to the interest of all concerned to conceal them from public view. Only occasionally when for one reason or another an untoward incident reveals the facts does the public in general become aware of the web of political, personal, and mercenary relationships within which the legal machinery must operate. The Seabury investigation threw upon the screen aspects of the problem which at least indicate some of the ramifications. It did not cover rackets, or liquor, or large-scale gambling. It confined itself, in the investigation of the magistrates' courts, to relationships that exist between the various elements within the courts and the problem of vice. This investigation revealed how the members of the vice squad, the stool pigeons employed by them, the bondsmen, the criminal lawyers, the assistant district attorney (Weston, who occupied that position for seven years), all combined to thwart the enforcement of the law for a price. The evidence showed that they repeatedly and systematically, over a period of years, secured the release of prisoners if these prisoners were both able and willing to pay the price asked. Those that either could not pay or were not willing to pay were convicted. More than that, this combination was so powerful and operated so smoothly that for years the vice squad with its stool pigeons " f r a m e d " innocent victims for prostitution, dragged them to the courts, and either convicted or released them according to their ability to meet the requisite extortions. These facts would be incredible if they were not so amply and fully substantiated. This situation shown to exist in the matter of vice suggests similar relationships in gambling, liquor, and other forms of organized crime. In the operations of the vice squad the methods were simple. A stool pigeon hired by detectives would force his way into a woman's apart-

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143

ment, deposit some marked money on the table, and begin to undress. The police would promptly break in and arrest the woman. The stool pigeon would be allowed to escape by pre-arrangement "down the fire escape." The woman would then be taken to the police station. At the police station a bondsman would be waiting. If he was not there he would be called by the police. Upon his arrival the bondsman would take charge of the case and of the victim's bank book as well. He would become a sort of "general in command"; he would, if there was enough money, secure a lawyer, pay the arresting detectives to change their testimony, bribe the assistant district attorney (Weston) not to press the case too severely—and secure the woman's discharge. . . . The bondsman played the part of a general factotum. With meticulous care he arranged every detail of the way out of the labyrinth of justice. He served as a sort of general agent for his client, frequently employing the lawyer, looking after witnesses, and, in many cases, himself providing the expert management necessary to "fix" the various persons indispensable in the business of bringing about the failure of prosecution. With his extraordinarily varied connections the bondsman constituted a sort of clearing house between the underworld and the realm of lawfulness. 1

If there was not enough money available the police would maintain their original charge, and, regardless of whether the woman was guilty or innocent, she would remain in jail, the district attorney would insist upon the upholding of the law, and most generally the woman would be convicted and sent to prison. . . . In cases where the victim failed to put up the necessary money, the officers would testify to sufficient to convict her, whether guilty or innocent, and she would, in the majority of cases, be convicted. This practice occurred not in isolated instances; it is sadly characteristic of what took place in this court day after day, in case after case, for many years. 2

This combination operated for years in the same courts and in front of the same magistrates, by the use of the same detectives, lawyers, and bondsmen, without detection and apparently without criticism from the magistrates. That the magistrates did not become apprehensive of what was occurring daily in their courts and under their very eyes speaks volumes for the moral opaqueness of the judicial officers before whom these tragedies were enacted, involving during the years hundreds of victims. 1

Seabury, op. cit., p. 107.

J

Seabury, op. dt., p. 86.

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This is illustrated by a number of specific cases taken from the Seabury investigations: Thereupon the woman pays Steiner $50 in connection with a $500 bail bond. T h i s represents an excess of $35 over the legal rate, and, accordingly, she is required to make out one check payable to the order of Treibitz and Steiner in the sum of S i 5 and another check to the order of cash in the sum of $35. T h e first check is endorsed with the firm name of Treibitz and Steiner and deposited in their account; the second by Joseph M . Treibitz and deposited in his account. T h e subterfuge is apparent. In addition to the foregoing sums, she pays to Treibitz and Steiner by her check, payable to that firm, the sum of $300, which she is informed is for the purpose of "fixing the case." On the morning following the arrest, Treibitz, the partner of Steiner, calls for the woman in his car to take her down to Jefferson Market for arraignment. I n the car she finds herself in the company of two other girls similarly situated, and it is significant that on the way downtown the car stops at a bank and Treibitz goes inside with one of the girls. While riding in the car with Treibitz she expressed the intention of getting in touch with a friend who is a lawyer, but is informed by Steiner that if she gets her own lawyer she will be convicted. On the day of the trial she is again called for by Treibitz, who takes her to court, informing her on the way " It is going to be fixed and don't worry. Everything will be fixed. . . . N o w don't you get excited and say anything." A t no time was she informed that she would be represented by an attorney, but when she arrived at the Court House and her case was called for trial, there was a man present who asked the policeman questions after the District Attorney had finished his direct examination. She assumed he was her lawyer appearing in her behalf, although she was never informed on the subject. A l l she knows is that all persons concerned were very insistent upon her maintaining silence, and that at the conclusion of the officer's testimony she was told that she could go home. T h e records in court and the minutes of the trial in the case of this woman show that she was represented at the trial b y Abraham K a r p , an active practitioner in the Women's Court. The Deputy Assistant District Attorney, John C. Weston, testified that after the conclusion of the case, he received a sum of money from the defense attorney} [The Sigrid Johnson Case.] Sigrid Johnson was approached by a bondsman, Steiner, while she was held in the Station house. He told her it would cost her $500 to be bailed out. This fee afterward seemed to include "fixing the case." Steiner then suggested that she retain his friend, lawyer Busch. Miss Johnson was bailed out of police station and taken home by Steiner, who there took possession of her bank book. T h e next day he met Miss Johnson, and drove her to court and took her to Busch's office. He suggested that the case be tried before Judge Silbermann. Upon being arraigned that day in •Italics not in original. S e a b u r y , OD. cit., pp. 22-23

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court, bail was raised to $1,000. Steiner went with Miss Johnson to the bank where she gave him $50 in cash for the first bond, $25 for the second and $ 1 0 0 in cash for Busch. Steiner, in testifying before me, denied that he had overcharged in this case. He was nevertheless convicted by the Court of Special Sessions of over-charging and sent to the penitentiary for an indeterminate sentence not to exceed three years. He has since been liberated by the Parole Board, after serving only 6 months and 28 days. What possible excuse there was for the extension of this leniency to Steiner, whose multiple iniquities are abundantly disclosed by this record, does not appear. 1 [The Greiner Case.] Mrs. Lillian Greiner conducted a beauty parlor. She was arrested and taken to 182nd Street Police Station and thence by patrolwagon to Jefferson Market Prison. There she was allowed to call her son by telephone and arrange through him for the production of her bank book and a bondsman. The bondsman who served was one John R. Arlotta who put up $500 cash bail. Arlotta arranged for the lawyer, one William McAuliffe, who had his office in the same building with Arlotta and with whom he shared his telephone. While discussing terms in the lawyer's office, Arlotta informed her that it would cost her $50 for the $500 bond and secured her bank book, which he then turned over to the lawyer, who receipted for it. The next day (the day of the proceedings in the Magistrates' Court), Arlotta accompanied Mrs. Greiner to the Empire City Savings Bank, where she withdrew $ 1 5 0 and paid the same to Arlotta, plus $ 1 0 more for his time and taxi fare. One hundred dollars of the $ 1 5 0 withdrawn was to pay the lawyer, who subsequently exacted $200 more before he returned her book. 2 [The Anna Johnson Case.] Miss Anna Johnson, a nurse in a doctor's office, was framed by a stool-pigeon. She was bailed out by Steiner, a bondsman to whom she gave her bank books as security for a bond of $500. A t the time she had over $600 on deposit in the bank. Steiner supplied a lawyer for a charge of $ 1 5 0 to cover all. Steiner and another man then called on Dr. Swoboda, the employer of Miss Johnson, in an attempt to get him to make up the difference between $1,000 and Miss Johnson's $600 on the misrepresentation that the charge might have very serious consequences to Miss Johnson and to Dr. Swoboda himself. Steiner, in attempting to meet this doctor's objections, reduced his first demand from $400 to $300. Dr. Swoboda paid no money to Steiner. Steiner, however, took Miss Johnson's entire savings of over $600. 3 In still another case a woman was arrested by two policemen and arraigned in court on a charge of prostitution. Here is what happened: She was then taken to the office of a " f i x e r " who told her that he was " a big man in the Grand Street B o y s " and that for $600 he could fix everything in such a way that it would make no difference if she were guilty or innocent. 1

Seabury, op. cit., p. 109.

2

Ibid., p. 108.

»Ibid., pp. 107-108.

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T h e fixer further stated to her that said sum of $6oo, which she had paid to him, would include his own services, the services of an attorney, and the necessary bribe for the arresting officer. An attorney was retained for her through the officer of the fixer, but it later developed that no part of the $600 heretofore paid by her had been paid to this attorney, and she was obliged to pay him a fee of $200 for his services, although such services did not include his attendance at the trial of the case. On the first adjourned date after her arraignment in Jefferson Market Court the fixer brought with him to Court the president of the district club bearing the name of the Tammany district leader who had caused the appointment of the then presiding magistrate. On that occasion she paid the fixer an additional $150. By prearrangement the parties met at a drug store across from the court house, and from a telephone booth located therein a telephone call was made which purported to be with the then presiding magistrate. The defendant was informed that the magistrate had stated on the telephone that he would not turn out any case in which the officers were those who had made the arrest, unless the defendant produced witnesses. This defendant had no witness to call, and accordingly she was informed that they would have to take an adjournment until a later date, when another magistrate would be presiding. Before that date arrived, she paid the fixer a further sum of $50, this time for the alleged purpose of having someone connected with the Grand Street Boys intercede with the magistrate who would be sitting on the adjourned date. When the day for trial arrived, the efforts to fix the case were apparently still unsuccessful, for the unfortunate defendant was forced to remain in a restaurant in the vicinity of the court house while the case was called and a forfeiture of bail declared by the magistrate. Several days later, acting under the instructions of the fixer, the defendant went to Jefferson Market Court and surrendered herself, whereupon the forfeiture of bail was revoked and a further adjournment of several days was granted. Before the next adjourned date was reached the fixer demanded a further payment of the sum of $200, stating this time that it was necessary to pay for someone to intercede. The money was paid, leaving the fixer's victim without further means, and bringing the total expenditures on her part to the sum of $1,200. No further funds being obtainable, the " f i x e r " now permitted her to go to trial. She was convicted. 1

4. Justice at a Price T h e implications of the relationship just described are obvious. Justice under the circumstances becomes a matter of bargain and price. A s long as the situation lasts the t y p e s of crime involved are bound to last. T h e crimes are p a r t of the system of police, court, and political 1 Seabury,

op. cit., pp. 26-28.

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interdependence, and cannot be dealt with apart from them. A change in the particular crime situations here revealed must involve a change in the relationship between these and perhaps all other social factors. For the types of police, lawyers, bondsmen, assistant district attorneys, and magistrates here described by this testimony are themselves only evidence of, or products of, a social complex of which they are but a part. It is idle to assume that the magistrates' courts and their dependencies can be improved all by themselves without effecting or being a product of a changed social atmosphere. Relationships similar to those found in connection with the vice problem are evident in gambling also. In 1929 in the city of New York 4238 persons were arrested and brought to the magistrates' courts on the charge of book-making. Of these only 161 were held over for trial and 4077 were discharged. The discrepancy between the arrests and the number tried is apparently explained by the fact that the clerks and assistant clerks have it in their power to cause a case to be dismissed by submitting to the presiding magistrate a printed statement known as O-14 which reads " I am in doubt as to whether the facts presented to me in the above case warrant the taking of a complaint on the charge made as above stated for the following reasons:" 1 It has been testified: "In my experience I have not had a magistrate in all these years as yet order a full complaint made when an O-14 was submitted for his consideration." 2 This, of course, had meant that the clerks were in a position to dispose of the cases. These contraventions of the purpose of the arrests were had at a low price, as may be seen from the following testimony elicited by Mr. Seabury: Q. And in these cases where you got an O-14 from the assistant clerk, did you take care of the officer as well as the clerk ? A . No; I would only take care of the clerk. Q. How much would you give the clerk in one of those cases ? A . Ss if it is an ordinary bookmaker. If he is a big bookmaker it is $10.3 The case for interference by the leaders of the political districts in the business of the magistrates' courts is clear. Former Magistrate Goodman testified before the Seabury Committee that practically all the leaders had come to him for favors affecting cases pending before him, some of them going to him in his chambers. Q. That means some 30 or 40 leaders, then ? A . I just don't know how many, but, as I say, most of them.4 »Seabury, op. at., p. 67.

2Ibid.,

p. 68.

3Ibid.,

p. 68.

4Ibid.,

p. 46.

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Magistrate Silbermann testified that his district leader came to him "probably three or four dozen times" to intercede in behalf of people up before him on charges, while district leader Brown not only admitted it but said " T h a t is the way we make Democrats." 1 More important perhaps than these admissions under oath is the voluntary statement of Presiding Magistrate Kernochan, who said in a radio speech : . . . It is a fact, however, that for a long time I have felt the growing attempt of the T a m m a n y organization under its present leadership to interfere with the business of the courts, not only by trying to influence the disposition of cases in the courts, but also by dictating who of the civil service employes should get jobs or promotions. . . . A short time before the 28th of September, 1932, when the Board of Estimate was very much concerned about the expenses of the city, Mr. Raymond J. O'Sullivan, secretary of T a m m a n y Hall, telephoned me and said that M r . Curry desired that an exempt position in the courts paying $3,240 per year be filled for the remainder of the year. I was told that the director of the budget would probably consent to this, even though it was against his expressed policy in other cases and even though this position had been cut out of the budget of 1933. On Sept. 28 I wrote M r . O'Sullivan to the following effect: I am opposed to asking the Board of Estimate to fill this vacancy at this time, for I believe it is my duty as Chief Justice to do all that I can to economize, even though certain expenditures in the 1932 budget had been authorized. If I have to get along with but one assistant in my office in 1933, I might just as well adjust myself to this condition the last two or three months of 1932 and save the city some money. I wrote that I would put the matter before the Board of Justices if he wished, for the power to comply with his request was in their hands. I requested an answer. None was ever received. This was the end of this minor raid on the treasury. I will give one other instance which illustrates the control that the political leaders think they have over judges. I was one of three judges that sentenced a man to a short term of imprisonment for admitting children illegally to a motion picture theatre. He had been previously fined for the same offense a number of times. After court adjourned, the leader of the district in which I then lived telephoned me and said he wished the sentence of imprisonment revoked and a fine imposed. I answered that his request would not be granted ; he said, " d o you say no," and I answered " I certainly do." He then said, " y o u may ask me at some time to do something for you and I will say no." This terminated the conversation. . . . T h e fact that these conditions have always existed is not a reason for believing that it is impossible to eradicate political influence in the courts. T h e fear that after ten years or more of efficient service, these services will be dis'Ibid., p. 47.

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149

pensed with because some influential politician or politicians have been offended, hangs like a sword of Damocles over the head of the judge who sincerely tries to do his duty. 1 B u t it is not always necessary for the leader to come directly to the court, or even to the magistrate himself. T h e influence of the political organization makes itself felt less obtrusively through the clerks of the court. T h e clerk, because of his intimate contacts with the presiding magistrate, can say, " J u d g e , this man is a poor man and says he is broke and hasn't any money, and if you can see your way clear to help him out, O. K . " And the judge knows from what "particular leader . . . the request for a favor comes." There is a specific reply to that. " Y e s , yes . . . all the time." 2 More important perhaps than the direct use of political pull to contravene the operation of the law is the abuse and misuse, as shown above, of the poor and ignorant who are brought to the lower courts by the police. In a city like New Y o r k hundreds of thousands of persons are brought before the magistrates. Most of these are poor, bewildered, and ignorant. T h e arrest itself may be a great tragedy in their lives. T h e whole atmosphere of the court, the danger involved, the strange people, the unknown forces at play, conspire to frighten and depress them. In this situation, at least in the lower courts, the combination of lawyer, bondsman, and court clerk manages to exact advantageous pecuniary emoluments for those that give their time to it. T h e y establish a sort of regular status there. T h e y are in court all day long on the lookout for business. T h e y establish personal and friendly relationship with the court clerks, the detectives, the policemen, the attendants. T h e y sit around on benches waiting for something to happen. In one case at least, " W o l f m a n " who practiced for three years in the magistrate's court was not even a lawyer. He had merely observed court procedure for a little while, and began to practice. He and others like him were tipped off b y detectives, police officers, and bondsmen, about prisoners who had no lawyer but had some money. T h e frightened defendant had been advised to hire so and so, on the grounds that he was a good fellow and on the level. In addition to these regular hangers-on of the court there are these: The attendant in charge of the prison pen, the attendant in charge of the gate leading into the complaint room and the prison, the attendant in charge 1

2

Reported in the New York Times, November 7, 1932, p. 2,

Seabury, op. cit., pp. 60-61.

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of the bridge, that is, that calls the cases ; plainclothesmen, that is officers other than detectives; bondsmen, and two steerers, that is, those two men who hung around the corridor steering cases to attorneys. 1 T h e interest of the various participants in the court's business is not due merely to solicitude for the unfortunate men and women arrested b y the police. Those cases represent an important source of money income. One illustration will t y p i f y the business: Q. Now, take the attendant in charge of the prison pen. How was he enabled to be of service to you ? A. Well, the prisoners, before they are arraigned before the Magistrate and before the complaint is drawn by the assistant court clerk, the attendant in charge of the prison pen books the prisoner and then locks him into that prison pen until his case is called. He starts a conversation with the defendants in that pen, asks them as to whether or not they are represented by an attorney; the attendant would then say "Have you any money for an attorney?" The defendant, if he had, would say that he did and how much he had. He would then come out to the courtroom. Q. Who would? A. The attendant in charge of the prison pen. Q. Yes. A. He would call me on the side and say "Wolfman, John Jones is in there and has got $60 or $50." I would then file a notice of appearance as I would in the cases I received from the detectives. I would then present the notice of appearance to the attendant and, within hearing of the attendant, I would represent myself as an attorney and the defendant would want to know how I came to know about his case, or who recommended me. Of course, I would tell him, as I told other defendants, I had a case on the calendar and noticed his case among the many cases and that I would help him out. The defendant at times wanted to know as to what proof I had that I am a lawyer. I would call the attendant in charge of the prison pen over and he would s a y , " Yes, Wolfman is a lawyer and he is all right." Q. Now, what share of his fee would this attendant get? A. Half of whatever fee I received.2 T h e evidence presented in this chapter is perhaps sufficient to indicate that a considerable portion of crime in our larger cities, and also its character, are reflections of, and are intimately bound up with, the kind and character of the political organizations that exist in these cities. T h e political machine, the gamblers and the gangsters, the police and the local ward heelers, the city magistrates and the court clerks, the ' S e a b u r y , op. cit., p. 73.

2Seabury,

op. cit., pp. 73-74-

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lawyers who practice in the courts, the bondsmen, the court attendants, the " f i x e r s , " the hangers-on, the good fellows about the political clubs, the dispensers of favors and the securers of jobs, the people willing to " g o to the f r o n t " for the less fortunate who have been arrested, the givers of political jobs to honest political workers, are all intertwined into a system, or still better, a w a y of life, for that part of our community which occupies itself with the business of governing under the conditions that make this kind of governing both possible and necessary. H e who would ask the question " W h y have we as much crime as we do have and w h y do we have this kind of crime ? " must first be asked to answer the larger question " W h y do we have the kind of political life that we do have in our larger c i t i e s ? "

T h e first question cannot be

answered without the second. T h e second question involves an answer to the question " W h y is American civilization and culture what it i s ? " It is only in terms as broad as these that the questions can be analyzed profitably and usefully. BIBLIOGRAPHY AHEARN, DANNY. How to Commit a Murder. Ives Washburn, Inc., New York, 1930. CLARK, DONALD HENDERSON. In the Reign of Rothstein. The Vanguard Press, New York, 1929. Chicago City Council. Report of the City Council Committee on Crime. Chicago, 1915CRAPSEY, EDWARD. The Nether Side of New York. Sheldon & Co., New York, 1872. FLYNT, JOSIAH. The World of Graft. McCIure, Phillips & Co., New York, 1901. HALL, JEROME. Theft, Law and Society. Little, Brown & Company, Boston, 1935. Illinois Association for Criminal Justice. Illinois Crime Survey. Chicago, 1929. Especially Part I I I , "Organized Crime in Chicago," by John Landesco. LAVINE, EMANUEL H. Gimme. The Vanguard Press, New York, 1931. L Y N C H , D E N I S T. BOSS Tweed. Boni & Liveright, New York, 1927. Criminals and Politicians. The Macmillan Company, New York, 1932. MERRIAM, CHARLES E . , and GOSNELL, H . F .

The

American

Party

System.

The

Macmillan Company, New York, 1929. MOLEY, RAYMOND. Our Criminal Courts. Minton, Balch & Co., New York, 1930. Politics and Criminal Prosecution. Minton, Balch & Co., New York, 1929. Tribunes of the People. Yale University Press, New Haven, 1932. MYERS, GUSTAVUS. The History of Tammany Hall (2d edition). Boni & Liveright, New York, 1917. National Commission on Law Observance and Enforcement. Report on Prohibition (No. 2). Government Printing Office, Washington, D. C., 1931. Especially statement by William S. Kenyon, pp. 1 1 7 - 1 3 7 . New York State Supreme Court, Appellate Division, First Judicial Department. Investigation of the Magistrates' Courts in the First Judicial Department and the Magistrates thereof, and of Attorneys-at-law Practicing in Said Courts. Final Report of Samuel Seabury. Referee. New York, March 28, 1932.

152 POUND, ROSCOE. Y o r k , i Q30.

CRIME Criminal

AND THE

Justice

COMMUNITY

in America.

Henry Holt and Company, New

SALTER, J. T . Boss Rule: Portraits in City Politics. McGraw-Hill Book Company, New York, 1935. STODDARD, LOTHROP. Master of Manhattan, A Life of Richard Croker. Longmans, Green & Co., New Y o r k , 1931. SULLIVAN, EDWARD DEAN. Chicago Surrenders. The Vanguard Press, New Y o r k , V O L L M E R . A U G U S T ; M U N R O E , DAVID G . ; a n d GARRETT, EARLE W .

"Police

Conditions

in the United States," in Report on Police, National Commission on Law Observance and Enforcement, Report No. 14. Government Printing Office, Washington D . C., 1931.

CHAPTER

V I • Politics and Police

1. The Web of Corruption Organized crime in our large cities is dependent upon political favoritism. This it secures through the control of those wards where vice, gambling, rackets, liquor establishments, and organized gangs thrive. In turn this combination of crime and politics secures control of all or part of the police in the large cities. It is by subordinating the police to the exigencies of machine-controlled politics that organized criminal activity is made possible. Were it possible to secure in any one of our large cities an independent police force, then the criminal gangs would quickly lose their present comparative immunity, and their activities would become a hazardous and not too lucrative occupation. The combination between organized crime and corrupt politics has survived for long years in such cities as Chicago, N e w Y o r k , Detroit, L o s Angeles. This relationship has been more powerful than any reform movement, more persistent than any political upheaval. Reformers have come and gone, but the criminal activities of certain groups—frequently under the domination of the same individuals—have continued year after year. T h e police and the community have known who the criminals are. But neither the police nor the community have been able to do anything about it. The tentacles of the criminal groups have found their way into the very fiber of the political machine, and through that machine have controlled the police department. So far as the large communities have no independent and honest police department, so f a r is their attack upon crime half-hearted and insincere ; and unfortunately there is abundant evidence that the police departments are not independent. T h e police chiefs in many of our cities are the pawns of the political machine. T h e y hold their office at the will of the criminal elements who have succeeded in appointing them to office, and stay there only as long as they please their masters. T h a t chiefs of police have become birds of passage is indicated, for example, in Chicago, where out of 3 1 police chiefs in 63 years since 1870, 24 served only from one to two years. 1 The Wickersham Commission, reporting upon the control of police b y criminally-dominated political elements, said: 1

Vollmer, Monroe, and Garrett, op. cit., table given on p. 45.

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Nearly all of the large cities suffer from an alliance between politicians and criminals. For example, Los Angeles was controlled by a few gamblers for a number of years. San Francisco suffered similarly some years ago and at one period in its history was so completely dominated by the gamblers that three prominent gamblers who were in control of the politics of the city and who quarreled about the appointment of the police chief settled their quarrel by shaking dice to determine who would name the chief for the first two years, who for the second two years, and who for the third. Recently the gamblers were driven out of Detroit by the commissioner. These gamblers were strong enough politically to oust this commissioner from office despite the fact that he was recognized by police chiefs as one of the strongest and ablest police executives in America. For a number of years Kansas City, Mo., was controlled by a vice ring and no interference with their enterprises was tolerated. Chicago, despite its unenviable reputation, is but one of numerous cities where the people have frequently been betrayed by their elected officials.1 An attack upon the problem of police efficiency becomes, therefore, an attack upon the problem of corrupt political domination of our large cities. Such problems as administrative efficiency, adequate personnel, proper mechanical equipment, scientific methods of investigation, and proper distribution of the police force are all of minor importance and must be subordinated to the more fundamental issue of whom the chief of police is to serve. T h e chief of police, as things stand at present, must serve his masters or depart from office. And his masters are the elements that control the political fortunes of the party in power; and they are all too frequently the organized forces of vice and crime in the city. The forces that corrupt the police department lie outside it. The dishonesty and corruption within, the faithless, disillusioned police officials and patrolmen, only reflect the general corruption about them. T o accuse the police department is not sufficient, not fair. The police are forced to serve dishonest and corrupt influences, and in the process some of them become corrupt. It is not fair to ask an instrument to rise above the purposes it serves. As long as the police chiefs and subordinate officers are compelled to serve such ends as they themselves cannot approve, the inevitable breakdown of the morale and integrity of the department is assured. The chief knows perfectly well to whom he owes his appointment; he knows when he accepts office that he must in the administration of it yield the interest of the public in the prevention, detection, and prosecution of criminals 1

Vollmer, Monroe, and Garrett, op. cit., p. 45.

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with political alliances, to the powerful protection of his own patrons.

The

chief, being subject to arbitrary dismissal when by a n y action he displeases the mayor or politicians who put him in office, must, if he desires to retain office, necessarily be cautious, in the discharge of his duties, to heed the admonitions of his patrons and to follow their often brutal orders to go easy on this or that criminal or criminal gang who are in alliance with his patrons. 1

Under these circumstances the best of police chiefs can do little but make a few futile gestures in the right direction. He enters a department saturated with traditions and habits of corruption, torn by internal conflicts for place, power, and graft. Every move he makes in the right direction stirs opposition from some source, and many efforts on his part to do the right thing may end in futility because the more permanent members of the department carry on in the traditional way in spite of the new chief or the new orders. And as the chief is bound to go soon—within a year if he is too persistent—the older elements succeed in maintaining the older patterns by indifference, opposition, neglect, connivance, by every means at the disposal of experts in the ways of tradition making itself felt against the novice who would change by a gesture a system which he cannot control. T h e commissioner is surrounded by such malign influences and subject to such unpleasant experiences that whatever his hopes and aspirations on the day of accession to office, they are soon dashed. Disgust is likely to succeed disillusionment, until a point is reached where it is not difficult to convince him that the most dignified method of separation is also the most satisfactory in the end. His resignation is accepted. 2

When Captain Russell resigned as chief of police of the city of Chicago he said, " I am resigning because I cannot function here any longer. . . . I have stood 900,000,000 pounds of pressure. . . . Some one had to be the 'red meat.' " 3 The issue is between an organized system and a man who has no support except as he connives with the system and plays into its hands. The system itself has its roots in the very community, and ramifies through all phases of political and social organization, in which the entire citizenry is in one or another way participant. T h e fault is not that of the individual patrolman.

He is caught in the

" s y s t e m . " T h e big business man wants a political boss w h o is permanent and understanding, and not a shifting Board of Aldermen to deal with. A street Vollmer, Monroe, and Garrett, op. cit., p. 2. Citizens' Police Committee, op. cit., p. 38. 3 New York Times, June 22, 1930, Sec. I l l , p. 9. 1

2The

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railway magnate may scorn to think of himself as connected with the police levy on a streetwalker, but a boss who gets his and can "deliver the goods" to business men, can build his position only on every one below him in the municipal hierarchy getting his. And so we get the police alliance with crime, and all the dirty business which disgusts the patrolman who wants to feel he is a decent man as much as it does any parlor reformer. But the system as yet is so strongly entrenched in our life, graft of one sort or another goes so much from the bottom to the very top, even into the highest places of the National Government, that the public is not likely to think of gangsters as cowardly and policemen (and the other forces of law and order) as glorified, but as one crook against another.1 T h e community participates at least by indifference, or by accepting the seemingly innocent favors of a little undue privilege, if only as to parking, or driving, or licensing. E v e r y undue favor asked and granted is part of the sinews which make the system possible. T h e result is that the community tends to be thwarted in its efforts to change the form of government, to control its police, to dominate the criminals. T h e situation is complex and interwoven. T h e way to an independent police force is through an independent and honest political administration. T h e way to an honest political administration is through a complete change in the mores of our large communities, and the way there is through a change in the ideas and ideals, the habits and practices, of the vast majority of our citizens. In the mean time the old practice continues. Y e a r after year a new grand jury investigates the police department, indicts a chief of police, forces the removal of a captain or an inspector, and shows up the connection between a few policemen and criminals, but the story continues. In 1928 a special grand jury declared the Chicago Police Department to be "rotten to the core," and another more recently has announced that its investigation disclosed the existence of a well-established, three-cornered alliance between the Police Department, the corrupt politicians, and the criminal element. The natural and inevitable results of that alliance take the form of hoodlums, gangs and rackets, with organized prostitution, syndicated gambling, beer wars, bomb terrorism, kidnapping and extortion, the exploitation of legitimate business, and control over the ballot box and the agencies of criminal justice—all linked together in one vast conspiracy. The distinguishing mark of this alliance is murder on a large scale.2 1

James Truslow Adams, " Why We Glorify Our Gangsters," in New York Times Magazine, Sunday, Dec. 13, 1931, p. 17. »The Citizens' Police Committee, op. cit., p. 3.

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157

But there is nothing new in this revelation. Similar revelations had been made almost every year for the last twenty years in the city of Chicago. So, too, in New York. So, too, in other cities. It is a general phenomenon, not a particular one. The root is deeper than the police department. It is in the community itself and the kind of government it has and tolerates. T o illustrate this point we may note that in the city of Chicago in 1912 the Chicago Civil Service Commission said: From the evidence obtained by it, the Commission reiterates the conclusions arrived at in its preliminary report, with added conclusions, as follows: (a) that there is, and for years has been, a connection between the police department and the various criminal classes in the city of Chicago; (6) that a bipartisan political combination or ring exists, by and through which the connection between the police department and the criminal classes, above referred to, is fostered and maintained; (c) that to such connection may be charged a great part of the inefficiency—disorganization and lack of discipline existing in the department. 1

In 1915 the Chicago City Council Committee on Crime reported: There can be no doubt that one of the chief causes of crime in Chicago is that members of the police force, and particularly of the plain clothes staff, are hand in glove with criminals. Instead of punishing the criminal they protect him. Instead of using the power of the law for the protection of society, they use it for their own personal profit. T h e y form a working agreement with pickpckets, prowlers, confidence men, gamblers, and other classes of offenders. T h e basis of this agreement is a division of profits between the lawbreaker and the public official. T h e exact extent of this system it is impossible to determine, but there is no doubt that its ramifications are so wide as to cripple the machinery for the enforcement of the law. 2

The New York Times reported on June 29, 1930, that the investigators of the Lingle killing "have learned that hundreds of patrolmen were asked if they wanted to buy sergeancies. Captaincies, it was reported, cost $5,000 and up, depending on where the captain wanted to be assigned." Such are the facts. If we are to seek for the causes of crime we must explore all ramifications—and here is one of the most important. The reason for this situation was given laconic expression b y the comptroller of Mayor Thompson's administration, when he said " W e 1 Quoted by August Vollmer, " T h e Police [in Chicago]," p. 339. Ch. VIII, The Crime Survey. Chicago, 1929. 2 Chicago City Council, Committee on Crime, 1915, op. cit., p 184.

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are trying to make friends. We have to have friends if we are going to build up a machine." 1 The way to make friends is to enforce the law unequally. Enforce it against those who are outside the organized racket. Raid the small law-breaker, who can not afford to pay the bill required by the politicians, and protect the large one for a price to be divided among all concerned. While this situation lasts political campaigns with their promise of reform are not taken seriously. Those in the know expect no serious change. Political administrations come and go, new mayors, new chiefs of police, new programs, but in spite of it all the old gang goes on very much in the same old way. A f t e r a successful campaign has been waged by these political crooks, it is a common practice to appoint a new chief of police. Press reports and photographs fill the columns of newspapers with stories and pictures concerning the marvellous improvements that are to follow in social conditions; big police shake-ups are widely advertised, until the news gatherers run out of boost material. Meanwhile, gamblers, prostitutes, and criminals of every description, far and near, learn through their subterranean channels that everything is all " f i x e d " and stampede to the city for the purpose of harvesting an easy crop. 2

In the "harvest" a system of the division of spoils grows up with its well-recognized prices, prerogatives, and privileges. So much crime for so much money. The evidence is not always available; but occasionally enough is uncovered to illuminate the picture. In January, 1917, a notebook containing the names of shady hotels and the rates of weekly graft was found in the pocket of Lieutenant White of the L a k e Street station by Hoyne investigators.

T h e rates were $150, 875, $50, and

$40 per week. Then there were pages devoted to a list of houses of ill fame, transient houses, gambling " j o i n t s , " and Greek places.

These items were

indicated as " t h e chief's places." T h i s graft went to the chief without a split. Other places were marked "three w a y s , " which was said to mean that Costello, Skidmore and " M i k e de P i k e " Heitler were beneficiaries. There was another page devoted to saloons, showing that these bars could violate the one o'clock and Sunday closing laws if a certain sum of money was paid each week. On top of this list was another which was headed by this notation, " C a n ' t be raided." T h i s list included gambling houses, crap " j o i n t s , " dives, and shady hotels. There was another list headed, " C a n be r a i d e d " ; and this was taken to mean the places which had not "cashed i n . " 3 ' L a n d e s c o , op. cit., p. 854. in the Illinois Crime ' L a n d e s c o , op. cit., p. 855. 2Vollmer,

Survey,

p. 36a.

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2. The Division of Spoils Under such circumstances it is impossible to maintain an honest police force. T h e rank and file become disillusioned, cynical, and frequently corrupt. T h o s e men and officers w h o refuse to play the game are reduced in rank, are framed up, are transferred to outlying and isolated precincts. L o c a l ward politicians m a k e their influence felt against interfering officers; the central administration disciplines them as troublem a k e r s ; and if the worst comes to the worst, criminal elements plant evidence against the honest police and force their dismissal from their posts. Honest policemen discover that the machinery is against them and demoralization of the department begins. Worthy or efficient officers are placed in inferior posts or they may be assigned to time consuming, but unimportant, tasks. Weak or corrupt officers are transferred to vice districts, or given command of vice controlling units with power to select their subordinates. Conscientious officers are framed, demoted, discharged, or, as is the common practice, are sent out to the "sticks." Factional fights take place within the department and this, coupled with general disrespect for the police executive, prevents the police department from functioning properly. When the police morale is shattered, the city is at the mercy of the crooks. Respectable police officials hate vice assignments and detest duty in a vice infested district even when the conditions are favorable to the enforcement of laws relating to vice; but when the city is controlled by crooked politicians, the situation becomes intolerable. 1 E v e n if the chief of police is himself honest and disinterested, the corruption in the department m a y be too much for him and m a y continue without his knowledge. Recently, evidence presented to the grand jury seemed to indicate that grafting policemen operated successfully in one of the large cities through four successive police administrations. Evidently the untrained police heads never knew to what extent the department was corrupted nor the extent of vice in the community, and, what is more important, they never would have found out unless they had been permitted to retain their official position for a period longer than has been customary in the United States. 2 If in the face of such a situation a reform movement develops, all the powers of the organized political machine and its beneficiaries, from criminals to corrupt lawyers, combine to thwart it. Records d i s a p p e a r ; 1

VollmCT, op. at., pp. 366-367.

»Vollmer, Monroe, and Garrett, op. cit., p. 41.

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witnesses refuse to testify; red herrings are drawn across the trail; motives are imputed; injunctions, court proceedings, delays, scandals, opposition charges, are cooked up to make the investigation difficult or impossible, and if it does proceed, to nullify its results. If indictments are secured, attempts are made, frequently with success, to have them thrown out of court; trial witnesses are deported, kidnaped, intimidated, and even killed; juries are bribed and intimidated; and if the worst comes to the worst and a conviction is secured, the machine takes care of its own through a pardon by the governor, or by a release through the parole board. 1 The political organization fights to hold its power over the police force, and so far has almost always succeeded. If we take Chicago as an example, all the investigations, reports, and indictments, from police officers to police chiefs, have served little purpose. The investigation of the Seabury committee of 1932 in New York indicated no perceptible improvement over the revelations of 1875 and 1894. The worst aspect of the situation is that within such an atmosphere a certain proportion of police officers themselves become personally corrupt and enter into a private agreement with criminals for their own immediate benefit. Corruption, when it is organized and controlled, yields to certain forms and standards, develops certain notions and practices of right and decency within the scheme of dishonest dealings. But when in the process the instruments of the law themselves become lawbreakers and partners of law-breakers, we have a situation which is truly intolerable. The corruption of the department becomes individualized into the corruption of the individual policeman, against whom evidence is difficult to collect and whose activities are difficult to control. What happens is indicated by the following: . . . The official police list of prominent gangsters against whom vagrancy charges are to be filed is found in the possession of a Capone bondsman; warrants for the arrest of so-called "big shots" are lost for weeks, then reappear and are distributed for execution without comment. Oppression, futility, and corruption—corruption everywhere!2 In 1875 a New York State legislative committee reported that "Headquarters detectives are not only in collusion with thieves, but that when certain thieves have tried to reform and lead honest lives they have been 1 See Newark Evening Xems, J u l y 28 and 29, IQ37, p. 1, for accusations against Governor Hoffman for allegedly using his influence to parole a murderer. 2 T h e Citizens' Police Committee, op. tit., p. 7.

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instigated and actually compelled into crime." 1 That situation is still to be found in New York City and in Chicago and in other cities. T h e Seabury investigation indicates how the police turned their powers as officers of the law to private gain. N e a r l y all of the cases which come into the Magistrates' Courts emanate from arrests made by members of the Police Department. T h e outcome of these proceedings is largely in the control of the arresting officers, upon whose testimony the case must stand or fall. Experience shows that many police officers have not been blind to the opportunities for extortion which this power puts into their hands. In some cases they would make arrests and immediately offer to sell immunity without requiring the prisoner even to go to the Police Station. Here a bondsman, whose virtue is extolled b y the policeman, is quickly provided, the prisoner having previously been refused permission to communicate by telephone or otherwise with anyone else. T h e prisoner, unfamiliar with legal processes, wonders at the magic which unlocks the door of the cell, but unlocked it is. T h e prisoner is taken by the bondsman, as his pawn, to the bondsman's office, usually nearby, where further inquiry as to the prisoner's financial status is made. Here the bondsman learns that the prisoner has a savings bank account. The prisoner is put into the bondsman's automobile and taken home, where the bank book is delivered and assigned to the bondsman. T h e next morning the bondsman, having the bank book and the assignment in his pocket, takes the prisoner to the bank, where sufficient money is drawn out to p a y what is supposed to pave the way to freedom, and this is given to the bondsman. This amount includes an exorbitant charge for the bail bond, rarely less than twice the legal fee, and an additional sum, which the bondsman advises is to be used to pay for a lawyer, whom he will provide to represent the prisoner, and to " f i x " the case, by bribing the officers to testify so as to make the proof insufficient to hold the defendant, and the representative of the District Attorney, to " g o easy." Where the bondsman has discovered that the person arrested has some additional funds, the victim is held up for additional amounts, on the ground that alleged complications have intervened, requiring the payment of larger amounts than were originally contemplated. W h e n the defendant has been mulcted of all the money possible, the play proceeds: the case comes to trial, the officers testify to a state of facts insufficient to make out a case, the representative of the District Attorney stands mute, and the defendant is discharged. If the money demanded by the bondsman is not paid, the officers testify to a complete case. Being officers of the law, as one Magistrate put it, their testimony is supposed to be true, and the defendant is convicted, no matter what the 1 Report of the Select Committee of the New Y o r k Assembly, Inquiry to Investigate the Causes of the Increase of Crime in New Y o r k City, 1875, p. 18. Assembly Document No. 106, ggth session.

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defendant may say, the theory being, as another Magistrate put it, that the person arrested would naturally give evidence consistent only with innocence. The procedure was the same, whether the person arrested was guilty or whether the arrest was a pure frame-up. 1 Other practices are developed into a series of rackets by the police for private gain. Some of these rackets are indicated in the following quotation, describing the Doctor's R a c k e t and the Landlady's R a c k e t : In the Doctor's Racket, the stool-pigeon, posing as a patient, entered a doctor's office while the doctor was away and demanded treatment. He placed money in a conspicuous spot and, despite the protests of the nurse, began to undress. At a given moment the officers entered and placed the nurse under arrest for prostitution. All the elements were present—the state of undress of the man, and the money, the consideration for which the woman had ostensibly offered to commit an act of prostitution. The Landlady Racket was also popular. The stool-pigeon as a rule, after renting a room in a rooming house and paying for it with marked money, brought his supposed wife to the room. Almost immediately after the police broke in, arresting the girl for offering to commit prostitution and arresting the landlady for maintaining a house of prostitution. The officers thus obtained double graft. The extent of the practice of these "rackets" is indicated by the profits resulting to the police officers involved. According to analyses of their bank accounts, five of them in a few years accumulated more than $500,ooo. 2 T h a t similar conditions might have been found for other types of law-breaking is to be assumed from evidence in the past history of N e w Y o r k City investigations and from material available for other cities. In 1 9 1 5 the Chicago City Council Committee on Crime reported, The corrupt officials heretofore referred to, maintained their power over the criminal world by the method of arresting the criminals who refused to obey orders or divide the plunder and holding them in custody under shocking physical surroundings and refusing to bring them before a court for the fixing of bonds and admission to bail.3 T h e evidence proved that there was collusion between criminals and police not merely in regard to prostitution and gambling, where it had long been known to exist, but in other types of crime. The following illustrates the arrangement in pocket-picking: We sat down at a table and ordered a drink. Then we told the detectives that we had just been over to the fire on Wabash Avenue and that we had got 2 iSeabury, op. at., pp. 80-82. Seabury, op. cit., p. 83. 'Chicago City Council, Committee on Crime, 1915, op. cit., p. 161.

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nine pocketbooks, but that most of them contained rent receipts and didn't net us much profit. Then I called Detective A to another room and talked to him a while. I told him we could only give him $ 2 5 because it had been a bad day for pocketbooks. Then I put $ 2 5 in a small match box and handed it to Detective A. He took the match box containing the money and put it in his pocket. Then I bought a drink with a $ 1 0 bill and received S9.50 change. T h e waiter laid the change on the table. Finally A said he had to go to Thirty-first and Indiana and fix up a case for several of the " b r o t h e r s " who had robbed a man and got caught. He left with the other detective. Then I told Detective B to lay his hat on a chair beside him. He did this and I swept up the pile of money from the table and put it in his ( B ' s ) hat. After dumping the money in the detective's hat I handed the hat containing the money over to one of our two investigators, Moss. Moss took it and handed the hat containing the money to the detective. T h e detective ( B ) took the hat and held it in his hand a few minutes. " W e l l , it's about time we split up," was suggested. " A l l right, I'll see you boys later," said Detective B . 1 T h e policemen indicated in this testimony were later prosecuted and convicted.

T h i s story of police corruption, connivance, bribery, and

protection of criminals is so well known among the criminals of our larger cities that they take it for granted. A s D a n n y Ahearn says, " I t is a business." Sometimes a cop takes money, like the guy that's a business man. Y o u yourself can't do business with them. Y o u got to get somebody else to do business for you. If you fool around long enough in this racket, you get to know them. T h e y are known as fixers. It is a business. 2

3. An Illustration from Philadelphia T h a t this relationship is highly profitable to the dishonest police is indicated from many sources. T h e 1 9 2 8 investigation in Philadelphia is illustrative. Grand Jurors Denounce 18 Captains, 3 Inspectors as Unfit to Hold. Office— Police Wealth Found to Have Taken Big Rise—Salaries Never Exceeded $3500, Many Now Rich, Jury Finds—Pay Off Mortgages, Buy Stocks, Bonds —Third oj Police Official Roster Cited in Grajt—Ellison is Revealed as Only One Admitting 1 2

He Took Money—Inspector

Carlin Deposited

$193,553

Chicago City Council, Committee on Crime, 1915, op. cit., pp. 186-187. Ahearn, op. cit., p. 24.

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PRESENTMENT OF THE GRAND JURY T h e Grand Inquest of the Commonwealth of Pennsylvania, for the city and county of Philadelphia, August Sessions, 1 9 2 8 , respectfully report the following as the result of their w o r k : Subsequent and in furtherance of our report presented October 8, 1 9 2 8 , we submit herewith the names of certain police officials who have been unable to explain satisfactorily the source of their large personal estates. These men have or have had during the last few years vast amounts of money. Their estates, as reflected by their bank accounts, for instance, have increased in size with amazing rapidity by the repeated accumulation at frequent intervals of large sums. F a r Above Their Salaries In many instances the amounts of money which the evidence discloses were received and handled by many of these men at various times amounted on many occasions to several times the yearly salaries of the particular individuals concerned. Our investigation, along these lines is not yet fully completed and we will be prepared in the near future to present to the Court the names of certain other police officials who fall in the same category. In many instances many of these men have deposited at one time amounts of money which it would take an honest, hard-working man in the ordinary walks of life earning the same salary a lifetime to save by the strictest kind of frugal living. A f t e r hearing and analyzing the evidence, we believe the money received and handled by these men was either all or substantially all dishonestly acquired, and we therefore have come to the conclusion that none of these men is fit to hold any position in the Municipal Government. Comment of the Judge " T h i s amazingly sordid recital," Judge Edwin 0 . Lewis, who received the presentment yesterday, commented, "should make it clear to the citizens of Philadelphia why gangsters, bootleggers and gunmen are able to operate with impunity. The commanders of our army of defense became allies of lawlessness." T h e Evidence Captain George H. Ackerman. During the last four years and during the year 1928 up to October there was deposited in two accounts, one in his name and one in the name of his daughter, the sum of $14,607.44. He carries n o shares of building and loan association stock. Within the last three years he has purchased various securities at a cost of approximately $ 1 5 , 0 0 0 , and has paid off $ 1 4 , 0 0 0 of this amount within that period.

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H e is the owner of eight parcels of real estate purchased at a total cost of approximately 817,100, and in each he has an equity of over 810,700. Captain John E. Barrett. During the last three years and the year 1928 up to October, there was deposited in two accounts, each in his name, the sum of $15,4I7-87In J u l y , 1928, he purchased a house and lot at a cost of S 7 1 5 0 , which amount was paid in full in currency. He also owns another parcel of real estate purchased for S5750, which is free of encumbrance. He carries twenty-four shares of building and loan association stock. Captain James J. Barry. He has four bank accounts, all in his own name, in which there was deposited during the last four years and during the year 1928 up to October the sum of $25,543.68. During the first six months of the year 1928 or up to J u l y 10 of this year there was deposited S3,434.13. He owns three pieces of real estate for which he paid S i 2 , 7 0 0 . H e owns securities for which he paid S35CO. He carries forty-five shares of building and loan association stock. Inspector John J. Carlin. He has three bank accounts, two in his own name and one in the name of his wife, in which during the last three years and during the year 1928, up to October, there was deposited up to October 4, $38,844.16. He owns forty-one parcels of real estate in Philadelphia, most of them more or less encumbered, but with substantial equity in each. He also owns mortgages and ground rents, of the total value of $4800. Captain John J. Clay. In three bank accounts, one of which is in his wife's name, there was deposited during the last four years and during the year 1928, up to September 1 7 , a total of §18,992.34. H e owns a house for which he paid $4000 in currency. He owns another property for which he paid S67CO, of which sum $4000 was in currency. He admitted to us that he kept the sum of Si600 in currency in his house, and he also admitted that he frequently accepted money as " g i f t s " from various saloonkeepers, and insisted that this was " i n the old d a y s , " and had not occurred recently. This man was demoted from the rank of lieutenant to a patrolman on February 1 , 1926, and was reinstated as a lieutenant on March 12, 1928, and made a captain on April 30, 1928. While lieutenant in 1924 there was deposited in his accounts $5844.88 and in 1925, $ 8 4 2 7 . 1 3 . In 1926 only $2225.79 was deposited, and in 1927, only $ 1 4 1 4 . 9 4 , during which years he was a patrolman. Captain Charles Cohen. There are three bank accounts concerning this man, one of which is in his wife's name. In these accounts there was deposited during the years 1924, 1925, 1926 and 1927 and up to September 17, 1928, a total of $32,307.32. During the year 1928 and up to September 17 there was deposited $4869.50. He admitted to us that his wife had no money except that which he gave her.

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Concerning this man there was specific evidence presented to us from creditable witnesses, whom we believe, showing that he received systematically large sums of cash from bootleggers, gamblers and, in one instance, a house of prostitution, in the district he commanded. Captain James N. Ellison. This man has two bank accounts. From January i , 1926, to March 14, 1928, he deposited in these accounts a total of $6269.44. Without any preliminary delay he freely admitted to us his guilt in connection with the money deposited in these accounts. In one of them he had deposited $2759.14 and admitted that of this amount $1370 was money he had accepted dishonestly. The money in the other account, in which had been deposited $3510.48, he explained as belonging to a bootlegger who lived in his home and who asked him to keep his profits for him. He said that this man was now traveling the seas. He admitted, however, that he (Ellison) had used $1750 of the money from this account to buy an automobile for himself. While testifying before us he took from his pocket a wallet and asked the District Attorney to count out five $20 bills. He said these bills had been left on his desk in the station house on August 4, 1928, in a bank envelope. He turned this money over to the District Attorney then and there. Captain Richard Farley. There are two bank accounts which concern this man, one of which is in the name of his wife. The one in his name was opened prior to January 1, 1925, but for the years 1925, 1926, and 1927 there was deposited but $14.39, $ I 7-47 a n d $18.19, and these items represent merely interest credited by the bank on account of a small balance of $397.07, which was the accumulation of small savings in prior years. He was appointed a captain on March 12, 1928. During this year nothing was deposited in this account prior to that date. From that date up until September 25, 1928, a total of $1686 was deposited. His wife never had a bank account prior to her husband's promotion to the rank of captain. She then opened one on May 3 1 , 1928, and from that time until August 31 of this year there was deposited in her account $2038.34. This makes a total for the two accounts of $3724.34. We believe this man evidently honest before succumbing to the temptations created by the present municipal Administration when it made police districts coextensive with ward lines and placed him in command of such a district. Captain William V. Gentle. This man has two bank accounts, one a checking account and one a savings account. There were virtually no deposits in either account prior to April 4, 192 7. On that date he was appointed a member of Unit No. 1. Thereafter $1470.54 was deposited in one account and $2019.47 in the other, making a total of $3590.01, all deposited during the year 1927. During this same period he paid off a balance due on two lots he had previously purchased, traded the lots for a residence and paid $400 in currency in the bargain.

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Captain James GUI. This man has four bank accounts—one in his name, one in his wife's name and two in his name as trustee for his wife. During the four years preceding the current one, and during the year 1928 up to August 2, there was deposited in these accounts a total of $63,880.07. During the year 1928, up to August 2, there was deposited a total of 823,496.88. From one account he withdrew nothing, and at the time he testified before us there was a balance there of $26,376.34. In another account, opened September 24, 1924, and the last deposit in which was on December 8, 1926, there was only one withdrawal during that entire period. This withdrawal was $787.54, which left a balance of $15,607.85 at the time he testified before us. On August 2, 1928, he actually had in these various accounts a total balance of $63,092.53. In other words, of the total amount deposited, viz., $63,880.07, there had been only one withdrawal in the last five years up to August 2 of this year. At that time he withdrew $787.54. Nothing more was withdrawn until shortly before he was called to testify before us, when he closed out one account by withdrawing $12,549.34. He therefore had in these various accounts the sum of $50,544.19 when he appeared before us. When confronted with this situation and asked to explain where he had obtained this money, he refused to answer any questions and said that he stood upon what he termed his "constitutional rights." Captain Frank Kennedy. In one account during the years 1924, 1925, 1926, 1927 and up to October, 1928, there was deposited $28,802.41. During the current year up to October 4 there was deposited $2811.48. In addition, he has purchased approximately fifty-five pieces of real estate during the last several years both in Philadelphia and elsewhere. This includes an apartment house in Atlantic City. These properties were purchased for large amounts entirely disproportionate to his salary as a sergeant and captain of police. Moreover, he testified before us that he had no safe-deposit box, but the evidence discloses that about two months before he made that statement to us he had rented a safe-deposit box, which he still has. Captain William C. Knoell. This man testified before us that he had no bank account and never had had one. It developed later that this was untrue. He opened an account prior to September 18, 1924, at which time he had a balance of $2017.41. Shortly after he was made captain, in May, 1928, and placed in command of a district he made two cash deposits in this account of $500 each. He also testified before us that he had no money or other personal property and had never given any sum of money to another person to hold for him. Almost immediately thereafter the District Attorney produced before us the sum of $5000 in $100 bills contained in a police envelope labeled "Personal Property of William C. Knoell," and evidence was presented that before he

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had appeared before us Knoell had given this money to another person to keep for him during this investigation. I t is now a matter of record that since that time he has pleaded guilty to charges of bribery, extortion and conspiracy and is now awaiting sentence. Captain Charles Levy. T h e r e are three bank accounts concerning this man, two of which are in his wife's name. From J u l y 26, 1 9 2 7 , to September 1 7 , 1 9 2 8 , there was deposited in these accounts, $ 4 7 4 5 . 0 5 . H e w a s made a captain M a y 1 , 1 9 2 8 . F r o m that time until September 1 7 , 1 9 2 8 , there was deposited in the accounts $ 1 6 8 6 . 1 3 . T h e two accounts in his wife's name were not opened until April 4, 1 9 2 8 , and J u l y 6, 1 9 2 8 , respectively. H e deposited in his account and stopped four days after this investigation started. A f t e r M a y 1 , 1 9 2 8 , he paid off two mortgages on his home amounting to $ 3 7 0 0 . These payments were in currency and did not come out of his accounts. H e explained that of this amount $ 3 0 0 0 was cash he had in his home, which he said represented accumulated savings which he kept " a r o u n d his d e s k , " " u n d e r the mantel," or under the radiator. H e said that at one time he kept as high as $ 5 0 0 0 in cash about the house. He spent his vacation at an expensive hotel in Atlantic C i t y , where his bill was $ 7 0 0 for four weeks. H e purchased a valuable diamond, an expensive fur coat for his wife and a $400 radio, and paid $ 4 5 0 in currency on account of the purchase of an automobile. H e carries sixty-five shares of building and loan association stock. Captain Owen McAtdiffe. T h i s man has one bank account, a savings account. I t was opened prior to J a n u a r y 1 , 1 9 2 5 , and but small deposits were made at wide intervals from that time on until the y e a r 1 9 2 8 . F o r instance, in 1 9 2 5 a total of 8650 was deposited; in 1 9 2 6 , $ 6 7 5 ; in 1 9 2 7 , $ 5 1 5 . H e was made a lieutenant on April 27, 1 9 2 8 , and a captain on M a y 1. Prior to that time in 1 9 2 8 he had made but one deposit of $ 5 0 on J a n u a r y 5. A f t e r he was placed in command of a district in four installments, the last deposit being during started. He has made no deposits since. On M a y 1 5 , $ 5 0 0 ; J u l y 3, $ 5 0 0 ; August 7, $500. These

he rapidly deposited $ 1 8 0 0 the month this investigation 21 he deposited $ 3 0 0 ; J u n e were all in cash.

We look upon this man as another victim of the vicious system of combining wards with police districts. Apparently this man while a patrolman was an honest one, but succumbed to temptation when he was placed in command of one such police district. Inspector William J. McFadden. In four different bank accounts concerning this man there was deposited during the years 1 9 2 5 , 1 9 2 6 , 1927 and up to September 1 5 , 1 9 2 8 , a total of 8 1 0 2 , 8 2 9 . 4 5 . During the y e a r 1 9 2 8 alone, up to September 1 5 , there was deposited $ 3 2 , 2 8 6 . 9 3 . T h e r e is also evidence that he carried shares in various building and loan associations and owns valuable securities.

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When asked to explain the source of these large deposits he at first said he was unable to remember most of the items, but explained some of them on the ground that he had collected various funds in the police department for one purpose or another. He also explained the many large deposits as proceeds from gambling at the race tracks. Most of the deposits, however, he said he couldn't remember. At that time we adjourned for the noon recess. When recalled and asked further questions concerning his assets he answered " I won't answer any more questions." From then on he refused to answer any question put to him. Captain Dennis J . Martin. This man has two accounts, one a checking account and one a savings account. During the years 1 9 2 5 , 1 9 2 6 , 1 9 2 7 and up to September 1 2 , 1 9 2 8 , he deposited in these accounts $ 1 1 6 , 8 4 5 . 8 6 . I n the y e a r 1928, up to September 1 2 , he deposited $30,296.92. H e purchased securities during the y e a r 1 9 2 8 at a total cost of $43,942.50. One of these transactions involved 200 shares of stock, costing $ 2 4 , 2 5 0 , of which amount he paid S4250 by a check on his account. T h e balance of $20,000 was currency. He explained that his wife kept this amount of money " a r o u n d the house," " a l l over the house," " i n secret places," " u n d e r the mattresses and closets." H e was unable to explain why such an amount was kept in cash in the house while during the same period he was making frequent deposits in the bank, which in his case was located only about a block from his home. T h e deposits in his accounts were made at frequent intervals and were generally in large amounts and usually in currency. For example, some of these deposits during the year 1928 were as follows: J a n u a r y 1 7 , $ 4 7 5 ; February 2, $ 1 0 0 0 ; M a r c h 28, $ 2 6 6 5 ; J u l y 1 4 , $ 1 7 5 0 ; J u l y 16, $ 3 3 0 0 . On one occasion in 1 9 2 7 he deposited $ 6 9 5 1 . 5 0 , all in one and two dollar bills, according to the records of the bank. He has a safe-deposit box in the same bank, but said that his purpose in renting it was to keep his children's and his wife's wrist watches there while they went a w a y in the summertime and also to keep some deeds there. Between himself and his wife they own seven parcels of real estate, purchased at a total cost of $ 5 2 , 5 0 0 , some of them clear of encumbrances and with substantial equities in the others. Captain Charles Schoenlebcr. T h i s man has only one bank account. T h e r e was deposited therein during the years 1 9 2 4 , 1 9 2 5 , 1 9 2 6 , 1 9 2 7 and up to September 29, 1 9 2 8 , a total of $ 2 0 , 9 3 8 . 3 4 . In 1 9 2 5 he deposited $ 2 4 5 5 , in 1926 $ 1 4 8 6 , in 1927 $ 1 5 5 7 . 4 1 . He was made a captain on M a y 1 , 1 9 2 8 . Since that date he deposited $ 8 3 6 2 . 2 3 . It is now a matter of public record that since he appeared before us he has been convicted before a Petit J u r y on charges of bribery, extortion and conspiracy and is now awaiting sentence.

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Captain Frank L. Souder. This man has two bank accounts. In the years 1924, 1925, 1926 and 1927 and up to October 3, 1928, there was deposited therein $68,905.69. Of this amount, all but $2460 was deposited after January 1, 1925, the date on which he became a lieutenant (the grade corresponding to the present grade of captain). In the year 1928 alone up to October 3 he deposited $16,582.67. He owns his own home, for which he paid $9000, of which $4500 was cash. He purchased securities during the year 1928 costing $ 1 0 1 1 and he carries fifteen shares of building and loan stock. From time to time he has purchased various automobiles requiring cash payments of about $700 each, but none of these sums came from any of his accounts. Inspector John Stuckert. There are seven bank accounts in his own name. One account is in the name of his wife. During the years 1926 and 1927 and up to October in 1928 there was deposited in these various accounts a total of $40,418.75. During the year 1928 alone up to September 28 there was deposited a total of $8515.87. He owns one piece of real estate in Philadelphia, for which he paid $11,000, of which sum $6100 was in cash. He also owns a property in Pleasantville, N. J., for which he paid $1500 cash. He and his wife carry between them 23 shares of building and loan association stock. Captain George Wright. This man was made a captain on May 2, 1928. Prior to that date he had been a sergeant for eighteen years with a salary of $170.83 per month. He is married and has eight children. He has no bank account and apparently never had any. On June 29, 1927, he produced a certificate of deposit in the sum of $7000, paying for it in currency. His only explanation was that this sum represented his savings, and he said he had carried this amount "in his pocket" prior to that time. He owns the house he lives in, which he bought in 1920 for $2500, paying $500 down in cash. He has since reduced the mortgages of $2000 down to $450, making these payments of $1550 at various times all in currency.1 Unfortunately the conditions revealed before this Grand J u r y were not confined either to Philadelphia or to the year 1 9 2 8 . A few years later N e w Y o r k City was regaled by, and disgusted with, the remarkable good fortune of members of its police force in picking horses and uncles. In New Y o r k the Seabury investigation revealed these f a c t s : Officer Quinlivan, who has since been convicted by the United States Government for filing false income tax returns, had been, until the time of his public examination, on the force for eighteen years. An examination of his and his wife's accounts indicated that he had banked in the past five years about $31,000 in cash, and his wife, the modest sum of $57,744.67, of which $30,016.20 was 1

Philadelphia Public Ledger, October 30, 1928, p. 1.

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in cash. They had a joint safety deposit box which, they testified, was used merely for the keeping of insurance papers and jewelry. When asked to explain his accounts he said that he had won $10,000 at gambling. . . . . . . The $20,000 now in Quinlivan's possession continued to grow. $3,000 of this was won at the races. The remaining $8,000 he refused to account for on the grounds that it would tend to incriminate or degrade him. Another member of the Vice Squad, Robert E . Morris, had about $50,000 in two bank accounts. $10,000 he said he won in gambling; $40,000 was given to him by his Uncle George, in one thousand dollar bills, as they were going to Coney Island. He admitted that his Uncle George was pretty good to him. Poor fellow, he had died, leaving no relatives or friends, and, incidentally, no one through whom Morris's extraordinary story could be checked.

Lieutenant John Kenna deposited over $45,000 in various bank accounts and his mother, who had approximately $5,000 in the bank on J a n u a r y 1, 1 9 2 5 , deposited between that date and December 30, 1 9 3 0 , $ 1 8 4 , 2 2 7 . 1 9 . On the hearings before me Kenna and his mother could not explain satisfactorily to me the source of upwards of $70,000 for the deposits. T h e total amount of withdrawals was $212,498.86, but no check books were available from the stubs of which it could be learned how $ 1 5 4 , 3 0 8 . 1 3 thereof was disbursed. 1

4. An Institutional

Arrangement

Crime in our large cities, it is clear, is an institutional arrangement. It is not an isolated matter, something done b y an individual in defiance of the rest of the community. It is part of the existing social pattern and could not survive in its present form outside of that pattern. T h e political element of the large communities, bedded in a soil that is typically American and rooted in the entire history of the growth and development of our large cities, has created a certain set of institutions, among them a certain type of political organization.

F o r its own needs this

political organization (among many other things it does) fosters, protects, and profits from certain types of unsocial and inimical conduct among the criminal elements in the community. In the process the police of the community become subordinate to the larger ends of the political group. T h e instrumentality of the community, devised for the purpose of protecting it, becomes subject to a control that leads it to protect the criminals instead. T h i s in turn tends so to corrupt and disorganize the 1

Seabury, op. cit., pp. 96-98.

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police department that it ceases to function properly. And, most damaging of all in this process, individual policemen become themselves subject to corrupting and dishonest associations and influence, and turn their powers to private gain. This fortunately does not happen in all or perhaps in most instances, but it happens sufficiently often to give the criminal gangs the impression that it is general and to make them feel aggrieved when they find an honest policeman; they assume that in this case he is honest because he is afraid to deal with them. In view of the fact that crime is so well organized and deeply imbedded, it is interesting to review the fact that most theories of crime fail to recognize this connection between society and the criminal and impute to the criminal as an individual the cause of his own behavior, apart from his institutional relationship. BIBLIOGRAPHY ADAMS, JAMES TRUSLOW. " W h y W e Glorify our Gangsters." New York Times Magazine, Sunday, Dec. 13, 1931. AHEARN, DANNY. HOW to Commit a Murder. Ives Washburn, Inc., New Y o r k , 1930. Chicago City Council. Report oj the City Council Committee on Crime. Chicago, 1915. Chicago Police Department. Annual Report, 1932. The Citizens' Police Committee. Chicago Police Problems. The University of Chicago Press, 1931. DILNOT, GEORGE. The Story oj Scotland Yard. G. Bles, London, 1926. FOSDICK, RAYMOND. American Police Systems. The Century Company, New Y o r k , 1920. European Police Systems. T h e Century Company, New Y o r k , 1915. "Police Administration." Cleveland Foundation. Criminal Justice in Cleveland (Cleveland Crime Survey), Cleveland, 1922, pp. 3-82. FULD, LEONHARD FELIX. Police Administration. G. P. Putnam's Sons, N e w Y o r k , 1910. GLOVER, F. English Police: Its Origin and Development. GRAPER, ELMER D. American Police Administration. New York, 1921.

London, 1934. The Macmillan Company,

HALL, JEROME. Theft, Law and Society. Little, Brown & Company, Boston, 1935. HARRISON, LEONARD V. Police Administration in Boston. Harvard University Press, Cambridge, 1934. Illinois Association for Criminal Justice. Illinois Crime Survey. Chicago, 1929. Especially Part III, "Organized Crime in Chicago," by John Landesco, and Ch. V I I I , " T h e Police," by August Vollmer. LEE, WILLIAM L. M. History oj Police in England. Methuen & Co., London, 1901. LIECK, ALBERT. Justice and Police in Englatid. Butterworth & Co., London, 1929. Massachusetts Special Crime Commission. Report. Senate Document 125, 1933. MAYO, KATHERIN'E. Justice to All—Story oj the Pennsylvania Police. G. P. Putnam's Sons, New York, 1917.

POLITICS AND POLICE MOLEY, RAYMOND. I

Tribunes

oj the People.

173

Y a l e University Press, New Haven,

2

93 N e w Y o r k City Police Department. Report, 1 9 1 4 - 1 9 1 7 . N e w Y o r k , 1 9 1 7 . N e w Y o r k State, Crime Commission, 1927, Report. Legislative Document ( 1 9 2 7 J No. 94. Section on Police, pp. 1 9 1 - 2 2 9 . New Y o r k State Supreme Court, Appellate Division, First Judicial Department. Investigation of the Magistrates' Courts. Final Report of Samuel Seabury. Referee. N e w Y o r k , March 2S, 1932. OWINGS, CHLOE. Women Police. F . H. Hitchcock, New Y o r k , 1925. " T h e Police and the Crime Problem." The Annals, Vol. 146 ( N o v . 1 9 2 9 ) . American Academy of Political and Social Science, Philadelphia. 192G. SALTER, J . T . Boss Rule : Portraits in City Politics. McGraw-Hill Book Company, N e w Y o r k , 1935. SHALLOO, JEREMIAH P. Private Police, with Special Reference to Pennsylvania. American Academy of Political and Social Science, Philadelphia, 1933. SMITH, BRUCE. ' ' T h e Metropolitan Police S y s t e m s . " Missouri Association for Criminal Justice. Missouri Crime Survey, pp. 1 9 - 5 5 - The Macmillan Company. N e w Y o r k , 1926. Rural Crime Control. Institute of Public Administration, Columbia University, N e w Y o r k , 1933. State Police.

The Macmillan Company, N e w Y o r k , 1925.

VOLLMER, A U G U S T ; MONROE, DAVID G . ; a n d GARRETT, E A R L E W .

" P o l i c e Conditions

in the United States." Report on Police. National Commission on Law Observance and Enforcement, Report No. 14. Government Printing Office, Washington, D. C., IQ3IWOODS, ARTHUR. Policeman

and Public.

Y a l e University Press, New Haven, 1 9 1 9 .

CHAPTER

VII • The Philosophy of the Professional Criminal

1. The Logic of Crime T h e professional criminal has an attitude toward life, toward his fellows, and toward his occupation which taken together constitutes a working philosophy. It is his explanation of his way of life to himself and a rationalization of the behavior of others toward him. In one sense of the word the criminal's "philosophy of l i f e " is little more than a professional code, but by it he both lives and dies. In terms of the "code of the underworld" the criminal passes judgment, dispenses honors, condemnations, sentences. . . . There is no more caste in the heart of India than in an American penitentiary. A bank burglar assumes an air with a house burglar, a house burglar sneers at a pickpocket, a pickpocket calls a forger " a short story writer." 1

Within this code too there is a basis for right and wrong, for honesty and dishonesty within the group. . . . Respect for property in the underworld is as deep as it is in the upperworld. T h e fact that it is upperworld property which is involved makes no difference, for when property is transferred from the upperworld to the underworld, it becomes sacred again. T h e burglar who shoots his partner for holding out a lady's watch goes up in the social scale of the underworld. Like the clubman who perjures himself to save a lady's reputation, he has done the right thing in the sight of his fellows. E a c h is a better gentleman according to the code. 2

Laws—unwritten laws—exist, are recognized by those who are within the pale of the "underworld," and are obeyed. Men are killed in terms of this unwritten code, deeds of heroism and sacrifice have been recorded in its name, " j u s t i c e " has been done in its terms. T h e relationships of the professional criminals, among themselves and to the "outside" society, indicate its force. 1 Jack Black, " A Burglar Looks at Laws and Codes," in Harper's Magazine, Vol. C L X , N o . 957 (February, 1930), p. 306 2 Jack Black, op. cit., pp. 306-307.

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Nick Luciano was shot to death at 4 o'clock yesterday morning in Pete La Bella's grimy restaurant at 165 Elizabeth Street. The men who had waited patiently for seven years to "get" Luciano made a thorough job of it. They put more than twenty bullets into him. Nick Luciano was the youth who, seven years ago, turned State's evidence against his five accomplices in the West End Bank robbery in Brooklyn, in which two bank messengers were shot dead. When the State was finished, John Farina, Joe Diamond and Morris Diamond had died in the electric chair, Anthony Pantano was sent to State's prison for life and George De Saro was doomed to spend the remainder of his days in solitary in a dungeon in Italy. From that time Nick—they called him "Cheeks," because of a long white scar that spread from the right side of his neck to his face—was marked, and he knew it. He went into hiding but was found by the police in 1926 when Farina was pleading for a new trial. At that time he signed an affidavit in which he said that he had perjured himself at his accomplices' murder trials, that Farina was not one of the robbery plotters. Then he recanted again and admitted that his trial testimony against Farina had been true and the admission resulted in a charge of perjury. He pleaded guilty before Supreme Court Justice Cropsey in Brooklyn and was sentenced to five to ten years in Sing Sing, the court remarking, "He is the meanest type of man with which we have to deal." There were many who said that Luciano welcomed a prison sentence; that he feared the friends of the men he had sent to the chair and the dungeon ; but in prison his life was miserable because convicts hate a "squealer." A little more than a year ago Luciano got out and again he went into hiding. Lately, however, he had begun to try to insinuate himself into the old friendships. But he was nervous and jumpy, for all of his six feet and broad shoulders. He knew he was marked. Some of his old associates called him "the big mouth." He was left alone and this, perhaps, was the reason, no doubt, that he eagerly accepted an invitation to a party in La Bella's place early yesterday morning, or he might have remembered that marked men of his stripe get the knife or the gunshot at parties. Under the artificial grapevines of shiny red and green leaves in the latticed drinking booths, sitting opposite three women and four men who called him " friend," Cheeks must have been happy. For two hours he drank and laughed, as he did before he became "Big Mouth." He was having a good time. At 4 o'clock the door opened, and some men walked in. They shut the door behind them, marched past the battered old piano, that was heaped with grapestained funnels and other litter and stepped into the next room where the pinkish glow of a dusty dome light feebly played on them. They pulled weapons from under their overcoats and Luciano's "friends" upset their mahogany chairs in their haste to get out of range.

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Luciano's dark face was a picture of terror. His yellow amber cigarette holder with the cigarette half-smoked fell into the glass on the table and he threw his arms up to cover his face. The pistols roared and he pitched forward, out of the booth, to the floor. His "friends" were out in the street and away in their car before the avengers, venting all their hate, had emptied their weapons in Luciano's body. When Patrolman Zotolli came running he found the store empty except for the dead man and L a Bella's two chow dogs, which had been sleeping in the window. From the tenements half-dressed men and women poured to learn what had happened. When the detectives came and wanted to know who had shot " B i g Mouth," they got no information. La Bella was found at Broome and Elizabeth Streets. He insisted that he had not seen the faces of the men who had killed Luciano and that he had fled from his shop " t o look for a policeman." He was held as a material witness and until he was bailed out late in the afternoon in General Sessions Court his two chows slept on the front seat of his Cadillac in front of the restaurant. Luciano was 28 years old. He was never a "hard g u y " in the eyes of the police; just a chap who dabbled in easy rackets such as slot machines. When he was picked up for the West End bank robbery he was easy material for the detectives. A warning that he would go to the chair if he held out information opened his mouth with a rush of facts that sealed the doom of his accomplices. A. Azzara, whose little undertaker's shop at 126 Elizabeth Street is filled with heroic-sized plaster saints done in light blue and gold and red, will bring Luciano's body to 310 Avenue B in Bayonne, N . J., where Luciano's mother lives, and he will be buried from her home. Luciano's father and his mother recalled last night how they had warned him on Sunday to stay away from the east side. They cried and implored, but he was lonesome and wanted company. He left his parents crying to go to his death. 1 T h e existence of the code is recognized not merely b y the criminals b u t b y the police.

" E v e n mortally wounded, though conscious, gang-

sters will not only refuse to t e s t i f y against one another, but will persist in withholding from the police any information which m a y be of assistance." 2 T h e professional criminal has a philosophy of life because an attitude is part of the function it reflects. T h e idea that underlies the attitude m a y be false, it m a y h a v e no direct bearing upon the causes of the activities it purports to explain, but unless activity is entirely random, entirely unregulated, and possibly entirely isolated, it takes on some yNew

York

2Annual

Times,

D e c e m b e r 0, 1930, p.

24.

R e p o r t cf t h e P o l i c e D e p a r t m e n t , C i t y o f N e w Y o r k , 1 9 3 1 , p . 22.

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sort of meaning, explanation, justification. Underlying any persistent behavior are a series of assumptions, prejudices, "intuitive" insights, and rationalizations. Regardless of the patchy character of the assumptions, the inconclusive or false character of the philosophy, it becomes important in any attempt to explain the way of life to which it refers. The attitude and its underlying assumptions make the career seem reasonable, rational, logical, at least to the person who uses the philosophy as a point of reference. The attitude itself is part of the career. It is a body of beliefs that are acquired over a period of time, hardened and crystallized in terms of experience, and used to explain the world and its ways. It serves as a protective covering. It makes the criminal's battle more logical to him, more dangerous to the community. It is a source of strength to the practitioner. In this sense the philosophy of criminals does not differ from that of any other group. So far as other men believe in a set of assumptions and use them to explain their conduct, so far they do no more and no less than the criminal does. Each uses his philosophy of life as a means of making his activities seem reasonable. Religious doctrines, political doctrines, the doctrines of groups, cliques—nudists, vegetarians, radicals, conservatives, political clubs, and religious communities—make assumptions of one sort or another; and upon these assumptions these groups construct a detailed working philosophy and practice which fit into the way of life to which they have become accommodated. The fact that the philosophy may develop with the practice does not impugn its import as a strengthening force. It grew with the practice which it explains. No explanation of the career of any group is adequate without a recognition of the part that doctrine plays in keeping the activity of the group logical and consistent within its own terms. Voting, praying, food habits, ideas of social revolution, Ku Klux Klan, racial purity, are all examples of beliefs and practices that are both things at once, each dependent upon the other, each making the other logical. So the criminal's attitudes toward the world, toward the community, toward the police, toward his fellows, toward such things as stealing, honesty, loyalty, murder, are part of a working philosophy without which the career would be impossible and illogical. The fact that the criminal does have a philosophy of life identifies him as a normal human being, as a social animal, as a creature capable of faith, loyalty, perseverance, as well as treason. Treason is treason to an idea. When the criminal detests and punishes the " r a t " he merely gives testimony to

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his belief in the ideal of loyalty, trust, friendship, truth. Unless we see these things in perspective, as they fit into the scheme of behavior which constitutes the criminal career, we miss the whole point of the career. F o r if the professional criminal were irrational we should send him to an insane asylum. The fact that we send him to prison instead is proof that we recognize a logical and consistent—if you will, reasonable— career with the objectives and methods of which we are in disagreement. The fact that we do not believe in the professional criminal's philosophy is beside the point. The communist and the capitalist disbelieve in each other's philosophy, and yet each carries on elaborate undertakings and does both justice and injustice within his special conception. The explanation of the behavior must be found in part in the belief, and the belief must be derived in part from the practices which clothe it with meaning. The professional criminal did not bring his philosophy of life into the world with him. That was acquired here. So were his criminal habits. The philosophy is one of the habits; if you will, the attitude and its components are part of the habit of being a criminal. It is important therefore to examine this attitude and work out its elements, analyze its texture, discover if possible the specific things that make it up, and see if in our treatment of the criminal we can so change his experience as to make his philosophy seem wrong and inconsistent to him. Unless his habits are to become so modified as to make their present significance seem inconsequential and false, and unless, therefore, his experience is to be so modified as to make the present habits incongruous and so make the rationalization of them impossible, we can make no progress with him. An understanding of the criminal's philosophy, therefore, is the beginning of any attempt to deal rationally with him.

2. A Warrior's

Psychosis

The way of the professional criminal's life is the way of war. His philosophy of life may be described as a war psychosis. His attitude towards the world is a warrior's attitude. It has the same ruthlessness towards enemies and traitors, the same loyalties towards companions. It has the virtues and vices of a life by the sword. That the battles are petty, the spoils unworthy, the motives sordid, are judgments of the outside community against whom the war is carried on. Inside the warring camp, the feeling is quite different. The values are real enough and the rewards are life and happiness. We recognize that we are deal-

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¡ng with a psychology of conflict where every incident is estimated in terms of its effect upon the conflict. But such a philosophy can be born only of conflict. T h e motivating source of the criminal's philosophy of life is fear. " T h e criminal hates society because he fears it; the greater criminal he is, the more intense his hatred, because in committing greater crime his fear increases." 1 He is afraid of the police, he is afraid of his enemies. H e is afraid of the " r a t , " he is afraid of the " g o o d " citizen. All around him are active or possible enemies. T h e world is organized against him. There can be no peace, no quiet, no security, no faith, no loyalty, that is not tinged with an element of distrust. His best friends, his wife, his sweetheart, his companions in crime, are all possible enemies. H e may be destroyed by any one of them. A friend may weaken, or may be bought; jealousy, revenge, suspicion, hate, are the elements out of which life is woven. T h a t makes the little group among whom life is lived, and is liveable because there is some confidence, a more tenaciously held group than the ones known outside. The little group stands between the criminal and the world of enemies; it is the protecting wall against the tide that would engulf him. Here is the reason for the criminal's loyalty to the gang he can trust. Like other human beings, he seeks for security, for recognition, for adventure, for love, in this world; b u t he attempts to find it through the medium of a small group, not in the world. This isolation from the larger society has its origins in the development of the boys' gang as a conflict group. T h e emergence of the gang carries with it a distinction between the good and the bad. The good are those who do as you do, who are loyal to you, who protect you, who help you, who approve of you. The good are those among whom you find security, security against intrusion and identification from an unfriendly outside world. It is among these that you must seek recognition and approval. They will give you honor and flattery, provide you with an opportunity to boast of your power, give you the means to talk, to live over and over the excitement and the pleasure of the hunt, the chase, the escape. There, too, the member of the gang must seek his love, his affection, his sweetheart or wife, all within the narrow confines of a small group and not in society. It is this small tenacious group built upon sand within a surging sea of enmity, fear, and hate that explains the ready murder in self-defense; that is, in defense of the life lived under these circumstances. 1

Unpublished documents from prisoners in Auburn and Sing Sing prisons in the possession of the author.

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Feuds between gangs become family feuds. T h e outside world represented by the state is a complete outsider. " I f I live I will get him, if I die I will forgive him," said a gangster, critically ill from a pistol wound inflicted by an enemy. This view of life is an instrument of selfpreservation having its roots in fear, developed by a life of w a r f a r e with the world, and compensated for b y exaggeration, extravagance, recklessness, and readiness to attack as a means of preserving one's own status in the group and the status of the group itself. The gang not only has its own code which governs the conduct of its members, but it even goes so far as to impose it upon outside society. In recent years in Chicago, the public has become familiar with the bold practices of criminal gangs in terrorizing witnesses and in exacting the death penalties upon them and upon members of the gang who are suspected of having given information to the police. An inside view of the attitudes and codes of a notorious criminal gang shows how a closely knit group develops its own standards and is outraged and puzzled by the attempts to deal with them according to the law.1 This view matured slowly as the world was defined as one filled with enemies who were in conspiracy to prevent you from doing the things that you were concerned with doing and who were on the lookout to punish you for doing those things you had already done. T h e world was so organized that you were always " i n wrong." " W e never could be friendly with the cop because we were always in wrong. We always got out of his way quickly with a warning cry, "Jigger, the cop.' 2 W h y are you in wrong? T h a t is hard to explain or to understand if you are a child of ten or twelve playing with a young gang of fourteen or sixteen. All you know is that when they see a cop they run. And when they run you do too. T h e y may run because they are afraid, having been caught before. Y o u on the other hand are afraid because y o u run a w a y . The feeling of danger is communicated to you apart from any specific thing that you may have done. T h e policeman becomes defined as an enemy, and as such he is to be avoided and shunned. If you are caught, regardless of the cause, you must treat him as an enemy, even if he is trying to be good to you. He is suspect because he is in opposition to the things and the beliefs of the gang with whom you play, tramp, do mischief, and " g o robbin'." From the time I started to hang around with the older guys in the neighborhood, I learned to look at the police as my sworn enemies. All the guys in the bunch looked at them that way. The police were the only ones that interfered 1

L a n d e s c o , op. cit., p. 1 0 5 5 .

2

L a n d e s c o , op. cit., p. 1043.

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with whatever we wanted to do in the racket. The older guys knew all about the police, their ways, the third degree, and how to elude the police.1 It is clear enough from this quotation, which could be duplicated from the experience of practically every professional criminal, that a t a very early age the world becomes divided into enemies and friends, and that the gang is threatened, in danger of life itself. Your relationship becomes one that involves the very physical existence of your companions; for, as one young gangster puts it. If the police get in his way, he'll be shot. So the police and the criminal are on two sides of the fence. If one doesn't get the other, the other will get him. The criminal is to be caught and the police are to be avoided, escaped from, or bought off. It's natural for enmity to grow up between them. I knew from the time I was young not to trust the police, but to keep out of his clutches. That's the way all the guys in the bunch felt. 2 This feeling against the policeman is natural to the criminal; natural in the sense that it is an acquired attitude that has come to fruition as a result of many experiences, contacts, and practices. It is natural because the gang, that is, your social group, your society, believes it. It is natural because from the earliest times your random movements of play and mischief were interfered with and defined as evil and bad by the police or those who called upon the police. It is natural because you yourself or your friends have been maltreated, beaten, and abused by the police. It is useless to tell the young criminal, and less than useless to tell the older one, that the police are merely trying to protect society, are doing their duty, are the instruments of the law, are agents of justice. He does not understand what you are saying. T h e difference in attitude and evaluation of the experience of life is as great as it is between a Buddhist and a Christian, between a communist and a capitalist. He does not understand. If he does, he does not believe; he considers you a hypocrite or a liar. He is suspicious. H e knows better. He has the fact of experience behind him, and you are merely preaching a theory. Since his childhood he has been thwarted. H e knows that " t h e police are never too gentle in their treatment of their prisoners. If you were to have your head 'kicked i n ' or beaten with 'saps,' you would not feel overkindly toward the ' d i c k s . ' " 5 This attitude toward the police is b u t part of an attitude toward the world at large. 'Shaw and McKay, op. cit.. p. 242. J Shaw and McKay, op. cit., p. 243.

3

Shaw and McKay, op. c!t., p. 243.

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If I credit you with kindness and considerateness, I assume something that has no place in my actual experience or the experience of my companions. When I was apprehended you showed no quarter; immediately I became a thing apart. Your geometry was used to measure my cranium, and you studied me under your social microscope very much as an ethnologist would inspect a bug; your refinement of reason I found to be the refinement of cruelty. However, as I have stated, I find no fault with this; its retaliatory principle has a place in my own scheme of things. If a perilous slant of my skull gave you a Lombrosian insight into the kind of the genus crimmalis we may yet understand one another. In passing I suggest, however, that you refrain from subjecting any of your social friends to Lombrosian tests as it may be embarrassing. Lombroso was a humorist who made the Gods laugh. The time he wasted in a survey of the skull might have been well spent in studying the heart.1

3 . Professional Insight The point may be made clear by comparison. The professional training of an architect gives him a peculiar judgment of his environment. H e sees buildings from an architectural point of view. His is interested in line, function, utility, distribution of space; he is concerned with, and conscious of, problems of space, light, heat, artistic effect. When he looks at a city or a street or a building, he passes involuntary judgment on it in professional terms. It is part of his training, part of his very fiber.

When a criminal looks at a city, a street, a house, he too has a

professional judgment. There is an involuntary judgment of the ease, the desirability, of robbing that house. T h a t in itself may involve judgment of height, means of escape, valuables, street layouts, police distribution, wire connections, habits of the community. As in the case of the architect, the judgment is involuntary, immediate, intuitive, professional.

Both

were acquired over a long period of time; both represent training, experience, reflection, conversation. As long as such an attitude is in evidence, so long is the practice of being either an architect or a criminal possible. This comparison may be taken over to another profession. When a doctor glances at a man he forms an intuitive judgment of him: health, color of skin, gait, energy, the look of the eye, are all part of the evidence. When a pickpocket looks at a man, he too forms an intuitive judgment. H e decides quickly the man's temper, irritability, sensitiveness. It is known to be a fact by pickpockets that if the victim will stand for what is known as a "throw" he can be beat. By a "throw" I mean putting 1

Unpublished documents from Auburn and Sing Sing prisons in possession of the author.

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a newspaper under the man's chin or by having a topcoat or short coat on your arm and holding that up under the man's chin. . . . I myself and several others I have talked to find an "insider" as easy if not easier than a "prat poke" if the man will stand for a "throw." The average man, when you put a newspaper under his chin, he will brush it away, but any one that will stand to have that paper laid under their chin can be beat and most generally are.1 He notes automatically the movement of the hand, the type of suit, the distribution of pockets, forms quickly an estimate of where he keeps his valuables, and guesses as to what the man might carry and whether he would be an easy "sucker." In both cases the doctor on one hand and the pickpocket on the other form these judgments quickly, intuitively. They are automatic professional observations. They are part of being either a doctor or a pickpocket; and as long as these observations occur to the mind, stimulate automatic hand and muscular movement, influence tensions and stir appetites for outlet, just so long is the practice possible. It is only when the doctor or the pickpocket has lost interest in the man—that is, when the man's presence does not involuntarily evoke such an awareness as that outlined above—that he has ceased to be a practitioner of the special craft. This involuntary response is important because it is of the essence of the multitudinous elements that make a professional what he is, and make (when we are dealing with the criminal) the persistent practitioner of the career we are describing. Jack Black suggested what we mean when he said, " I thought in terms of theft. Houses were built to be robbed, citizens were to be robbed. . . . That was the atmosphere I breathed." 2

4. Pride and

Competence

The first item in the philosophy of the criminal is distrust of the people about him. An all-pervading suspicion is a natural protective covering for the professional criminal. The world is filled with enemies. One young gangster expressed this feeling when he said, "As everyone knows, rats exist everywhere." That is not an assumption on his part. Everyone knows it. And they are to be found everywhere. The only thing for the professional criminal is to be constantly on his guard. His life depends upon his keeping his confidences to himself. The gang that shares his secrets is pledged by the lives of its members. That is the J

S h a w and McKay, op. cit., p. 237. - J a c k Black, You Can't Win, p. 241. New York, 1926.

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reason for the cruelty and ruthlessness of gang murders when a member is suspected of treason. Life itself may be involved—certainly freedom. Danny Ahearn tells us, "ever since I left that mob I never trusted anybody but what I consider an old-time friend. What I mean, a fellow that I have known for years and years, and probably went to school with and known since my childhood days." 1 Under the circumstances loyalty to the gang is the essence of survival. Just because you can trust no one, just because your life is in danger, just because you are filled with a sense of being haunted, shadowed, watched, threatened, you find security and confidence and peace in the gang that is committed to your code, that is part of your way of life, immersed in your deeds, and tied to you by every interest and emotion that ties a group whose life is constantly threatened by a common danger. Your gang is your only security. Its members protect you from gangster enemies and the police; they will lie and commit murder for you—because they too are involved. They will intimidate witnesses; if necessary they will "take the rap," that is, assume the guilt of a charge if by pleading to it they can save the rest. They will look after you when you are in prison, they will receive you when you return and take you back into the fold, give you clothing, food, and shelter, and place you again. This of course is the ideal, the dream; its acceptance and its measurable performance by the group is necessary for the professional criminal. Without such gang loyalty the criminal career would be impossible. Loyalty is the essence of life to the criminal gang; its existence may be indicated by one example. A wounded gangster was taken to a hospital: At the hospital he received the best medical attention. While the arm was stripped of the entire biceps muscle and the shattered bone exposed, every effort was made to save it. The boy endured the treatment with great patience and the arm was saved from amputation finally. During the hospitalization period, which extended over months, he had a constant flow of visitors with gifts of fruit and cigarettes. Boys brought their own radio sets—he had three or four different sets at work in his room. They arranged to avoid taking him to the House of Correction Hospital by having deputy sheriffs on alternating watches, whose salaries they paid to the county. With an especially constructed frame supporting the arm, he was taken to a court and bail bond was set at over twenty thousand dollars. The bail bond was arranged in cash. The hours during hospitalization were passed in fleet conversation about "jobs" and "raps" and gossip about gang friends. As soon as he became a little 1

Ahearn, op. tit., p. 27.

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better, the boys would bring up his girl friends who were admirers of the young gangster.1 This gang loyalty persists through the career, and when it breaks down the career comes to an end. The gang itself may abruptly exterminate a member in whom for one reason or another it has lost confidence. Or the state may interrupt the career through imprisonment; an objective much easier of achievement if the gang loyalty has broken down and the accused turn on one another to save their own lives. I t is the implicit recognition of the fact that treason to the gang means extermination that makes the " r a t " so hated. It is the instinctive feeling of self-preservation. "A rat deserves to be dead. He deserves to be in the dirt, buried face down, so if he ever comes to life again he will go deeper and deeper." 2 Such vehemence arises out of the elemental struggle for self-preservation. The " r a t " endangers life itself. This belief is taken over by the young in their companionship with the older criminals. It is a doctrine that pervades the air. " I was never given any lessons by any of the guys about keeping my mouth shut when arrested, but I knew how the fellows looked down on those that did talk when arrested. They considered them rats and shunned them." 3 The distinction between a " r a t " and a good criminal is a moral one and is irrevocable. " T h e term ' r a t ' is pinned on him forever in underworld eyes. He never has peace." 4 The rat must be and is shunned, avoided, and punished. He is " a copperhead," a snake in the grass, and "What they get in punishment from their gang they deserve and more yet." 5 The moral distinction is drawn on the grounds not only that the traitor is contemptible because of his treason, but that his treason is only a part of his contemptible character, of which it is an evidence. . . . These rats are composed of dope fiends, petty thieves, and other similar low characters. . . . A man with some manhood in him wouldn't stoop that low. The dirty, lousy, filthy vultures would knife a man when his back was turned. They are only born to be hanged.6 The " r a t " is therefore conceived as the lowest of human beings. The professional criminal preserves his own self-respect, his pride, his moral indignation, by comparison with the lowest of mankind. This reaction to treason is final proof of the social character of organized 1

Landesco, op. cit., pp. 1055-1056. Danny Ahcarn. op. cit., p. 28. •Shaw and McKay, op. cit., p. 144. 2

4

Ibid., p. 246. Ibid., p. 245. 6 Ibid., p. 244. e

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crime. I t reveals the basic response of any group to those who would become the agents of its destruction. It is clear from the evidence that the feeling of bitterness against the "squealer" is but a natural defense mechanism against annihilation. I t is self-defense. In the process the repudiation of the traitor becomes a repudiation of the things he stands for. T h e evil he does is identified with the evil-doer. T h e " r a t " therefore is the "lowest, meanest, most contemptible" of human beings. Clearly enough this too is an attitude natural to the group that feels itself in danger. Under these circumstances loyalty is the highest virtue. Treason is the opposite. We see here an exemplification of the fact that the criminal operates with the psychology of a warrior—in a relentless war first against society at large and then against the enemy within. But the war itself is natural and the reactions it produces are also natural. How closely the feeling of the criminal against the traitor corresponds to ihe feeling against the traitor in times of national danger may be illustrated by a single quotation from the New York Times of a speech by James W. Gerard, former ambassador to Germany, at Pittsburg, November 13,1917 : " W e should 'hog-tie' every disloyal German-American, feed every pacifist raw meat, and hang every traitor to a lamp-post to insure success in this war." But the nation has long intervals of peace, while the criminal gang is always at war, always afraid of betrayal. With loyalty on one side and danger on the other the professional criminal plays the game of a soldier at war with society. Everything which defeats society is fair. Everything which endangers the career of the criminal or his gang is wrong. Within this moral, the relationship between the criminal and organized society is a sort of game at which each tries to beat the other. The game itself develops certain rules. T h e rules of the game as practiced and understood by the professional criminal were well expressed by Landesco in the Illinois Crime Survey when he said: The experienced criminal or the boy brought up in gang culture approaches his "trouble with the law" as a matter which can be met in a thousand w a y s — there are friends and "fixers," perjury, bribery and intimidation. There is a certain behavior which befits a man of character in his society. He must give no information about his friends, he must not believe the police when they say that his friends have "squealed"—that is a usual method of causing associates to weaken. From the stories he has heard from childhood up he knows that he may have to stand a beating or the excruciating Third Degree, but in his mind he knows it is an experience that will bring him the plaudits of his group, just as

T H E PHILOSOPHY OF THE PROFESSIONAL CRIMINAL

187

a young soldier does under the baptism of fire. If he is convicted, he was not given a chance—it was a "bum rap." This "bum rap'' may mean either that he was "framed," or he may be entirely guilty of the charge but he finds a reason why he was discriminated against, because both in his own career and that of his friends there have been instances of equal guilt with no punishment or lesser punishment as a result. This might extend to the most serious of crimes.1 T h e first rule, of course, is not to be caught. B u t if misfortune leads you into the h a n d s of the police, then the next thing to do is to " b e a t the r a p , " and a n y means to that end is justifiable. Tony Accardo, driving an expensive automobile and wearing expensive clothing, dropped into court yesterday to answer charges of disorderly conduct. Incidentally, this prominent machine gunner made an astonishing statement to the Fillmore police. He said among other things that he was a laborer, not working. He didn't care to say where he worked last. About the murder of Joe Aello ? Never heard of him. Where was he during October? Not sure. In Chicago? Maybe. Why was he in custody? No idea. Ever arrested before? Oh, yes, lots of times. What for ? Never found out. Would he sign the statement ? No. Judge Harry Hamlin dismissed the charges against him.2 Lying, cheating, intimidation, bribery, murder, escape, bail jumping, pull, anything at all just so long as the purpose of the law is defeated. It is your business to put on a bold front and deny the charge. " I don't know nothing and don't say nothing. If they say I did it, let them prove i t . ' " If you can get out on bail, so much the better. T h e gang will have a lawyer, and between you and the other members of the gang alibis will be framed, witnesses will be intimidated or bought off. T o quote D a n n y Ahearn again, I had a lawyer through my friends, but never seen him. I went to him and he said: "Did you kill so and so ? " I got told to have confidence in this guy, he is 0 . K. I answered. He said : "You did not." I said: "All right, I didn't." He said: "Where were you on so and so a d a y ? " I said: "Here." He said: "You were not. You were working." I said :"All right, I was working." Then I had to get a place to see where I was working, which I did through friends of mine. I was supposed to be a truck driver. This man vouched that I worked on that night, and that I always worked from twelve midnight until eight A.M. 1

2 0 p . tit., p. 1047. New »Danny Ahearn, op. tit., p. 64.

York Herald

Tribune,

November 14, 1930.

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in the morning, and the murder was committed around four o'clock in the morning. Naturally, that was a good alibi for me. 1

If these efforts fail and you have to stand trial, then the witnesses are, if necessary and possible, m u r d e r e d — " t a k e n for a ride," to put it in the underworld terminology. Even this may fail; then it is legitimate to confess and take the blame upon yourself if by that means you can save your friends or secure a shorter sentence, have the charge reduced, secure a promise of an early parole, or possibly be placed on probation. T h e rule is that "where a man makes a confession implicating only himself, he is not a violator of the code." 2 But this game with the risks so high can be played only if the values are of a moral nature. Man does not live by bread alone even in the underworld. A thief who steals from his fellows or sells them out is repudiated and killed. He who practices the game according to the underworld rules acquires honor and standing, followers and imitators. He becomes " a square guy," a " b i g shot." T h e notion of status seems a little tarnished to the outsider. But after all it is for the insider that the game is played. How would you feel toward the K i n g of England or the President of the United States of America ? Well, the young crook feels the same toward the " b i g shot." T h e " b i g s h o t " is the i d e a l — t h e ultimate hope of every forwardlooking criminal. 3

A more moderate way of saying the same thing is from another young gangster who described the criminals as the brainiest men in the world: T h e men of the underworld are the brainiest men in the world. T h e y have to be, because they live by their wits. T h e y are always planning something, a "stick-up," a burglary, or some new " r a c k e t . " T h e y are constantly in danger. T h e y have to think quicker and sharper than the other fellow. T h e y have to " s i z e u p " every man they meet, and figure out what " l i n e " to use on him. . . .*

Jack Black, who showed perhaps the best-balanced understanding of the criminal's philosophy, said in his autobiography: It is difficult to explain to a layman the pride of a professional thief. Nevertheless, he must have pride or he would steal his clothes, beat his board bills, and borrow money with no thought of ever repaying it. He doesn't do these things day after day, but day after day he takes chances and is proud that he can keep his end up and p a y for the things he needs. . . , 5 2 S h a w and M c K a y , op. cit., p. 246. 3 Ibid., p. 249. Ibid., p. 229. 5 Jack Black, op. cit., p. 240. * Landesco, op. cit., p. 1048.

1

T H E PHILOSOPHY OF T H E PROFESSIONAL C R I M I N A L

189

If the criminal is known to have the qualities here indicated, " T h e big shot is respected by the criminals and honored for his power and brains to hold down a big job and have a number of gangsters under him and obeying his commands and orders." 1 But such an attitude carries its complementary side. If the "big shot" is admired, the "petty thief" is scorned: The "petty thief" is known as a "jag off." He is looked down upon with a condescending air, and sort of tolerated. . . . Why, you can't trust your best friend if he's a petty thief. He usually is a piker and a coward and yellow, as we say. 2

The petty thief shows all the weaknesses that endanger the criminal career. " T h e petty thief is considered no good outright. . . . Such a person . . . if caught, is very degrading in class." 3 And as you know that he is a petty thief, you shun him. The fact of the matter is that a petty thief lacks the courage, grit, status, character, or what you will, to make the grade in the underworld. In my racket, which was the auto racket, we wouldn't have a sneak thief of any kind. It takes guts to steal cars and we wouldn't trust our lives with a low piker like a petty thief. The way we looked at it was that if a fellow didn't have enough guts and ambition to do anything but jack-roll a poor old drunk man or snatch an old lady's purse was a coward and no good in a hot racket. . . . Stealing junk and vegetables is all right for a kid, but its not a man's job. . . .4

The petty thief is disliked and feared because it is assumed that he lacks the courage to take his part as a man in case he is caught. He might weaken and squeal. It requires a "good" criminal to stand the gaff. A thief arrested in a large mail robbery was confronted with a companion who "squawked," and turned state's evidence; but even under this temptation he would not confess. Captain Shoemaker, chief of detectives, admitted he had advised Cleaver to confess, but that the defendant [Cleaver] said he valued his reputation too highly to do that and would go to the penitentiary "like a man and not like a rat." Instead he applied this most insulting epithet of the underworld vocabulary to a fellow defendant. 6

That is good practice. Don't squawk. The rules of the game are that you must take your medicine. " T h a t ' s in my heart, I wouldn't squeal on J S h a w and M c K a y , op. cit., p. 24g. 'Ibid., p. 248. «Ibid., p. 247.

2 Ibid., pp. 248-249. •Landesco, op. cit., p. 1053.

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nobody. I wouldn't care if I got killed in this apartment. If I was living just enough to talk, and was a s k e d : ' Y e s or no ?' I would s a y : ' N o . ' " 1 It is necessary that this rule be applied even if your very life is in danger. Like a good soldier you take your chances, and even if you are betrayed you must stick by the soldier's r u l e — d o not have any dealings with the enemy. If you meet with a traitor in camp, t h e n — " I ' l l take care of him myself. If I get killed, that's my hard luck." 2 That is the rule. The rule seems simple enough because " T h o s e people that want to talk should go to work. T h e y wouldn't get shot and wouldn't have to squeal." 3 He who cannot play the game should stay out of it. T h e criminal has a slim chance against the world anyway. W h y should a " r a t " make his chances even slimmer? I believe that any game should be played according to the rules of the game. . . . Violators of rules should be punished. Crime is a game, and therefore as a rat violates the rules or code by informing the " d i c k s " and the " s c r e w s " he should be punished. 4

T h e racket is difficult enough as it is, and the unfairness of betrayal is the moral justification for the wrath and punishment visited upon the traitor. But if you are caught, "the racket calls for you to take what's coming. That's the only way you can . . . get people's confidence." 0 In the execution of the crime, a " g o o d " criminal avoids unnecessary cruelty and murder. T h e thing to aim at is " b i g money." T h e risk is equal whether you are stealing seven or seventy thousand dollars. " I don't look to kill anybody. If I can prevent it, I will. But I would shoot somebody to get away, if there's plenty of money there, say $100,000." 8 But even the best of criminals is caught sometimes. Then the question is W h y ? Not remorse but chagrin dominates the reaction. Can any case be found in which the gangster feels remorse ? Certainly he feels remorse, not for his crimes, but for being caught and convicted.

Remorse

arises when the efforts and defenses for escape from prosecution are blocked and one reaches an impasse. As long as there is practical hope, then in one's own mind there is a continual surging of possibilities of action, until the final sentence has been pronounced.

Even then thought runs through the unused

alternatives and to the failures that were merely adventitious. . . . T h e remorse of the gangster is not based on his original guilt for the crime, but in a mistaken maneuver or a mistaken choice of friends or misplaced confidence. 7 Danny Aheam, op. cit., p. 245. 8 Ibid., p. 246. p. 245. 4 Shaw and M c K a y , op. cit., p. 244.

1

2 Ibid.,

Danny Ahearn, op. cit., p. 29. "Ibid., p. 67. 7 Landesco, op. cit., p. 1052. 8

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5. Life as a Racket Why were you caught ? There is always the possibility of betrayal. There is of course the possibility of a mistake, that is, poor judgment. The first thing to do is to get out in some way or other, and the means are numerous. There is bribery. There is a good lawyer, there is intimidation of witnesses, there is political pull, there is compromise with the district attorney. If the worst comes to the worst you "cop a plea" and take a short sentence. But always there is the question of how you came to be caught. In the future you will have to be more careful, more cautious, build your defense more carefully, have the right political pull, avoid certain supposed friends, make the right connections; for in a perfect world the criminal does not get caught, and if caught does not get convicted, and if convicted does not serve his sentence. It seems absurd to assume that there are people in the community who have this point of view. But the fact is that there are such people, and their point of view is derived from their own limited experience and is the truth in so far as they know the truth. They know that other men, equally guilty of crimes, have escaped punishment; and so in their estimate the very prosecution must have been stimulated by other ends than the enforcement of the law. In their speculations of how it came about, there is always an increasing number of possible factors as to who could have been the enemy or who could have been the "squealer," or what the ulterior motives might have been for him or the prosecution that they were actually sent up.1 They know that because they know that the entire world is crooked. Every one has a racket. One young gangster remarked, " I never saw a guy who never stole yet," and another, "Who around here hasn't got a racket ? " The Illinois Crime Survey says, . . . The gangster grows to consider the world a place in which everyone has a "racket" but the "poor working sap," because as he looks around he finds ample customers for his loot, ample police protection for money, and almost anything in his world can be "fixed." The underworld knows in advance when a certain "rap" will be beat.2 The gangster knows such simple facts as these: No matter which political party has been in power, at no time during the past seventeen or eighteen years have Cooney's political connections interfered 1

Landesco, op. at., pp. 1056-1057.

'Ibid., p. 1048.

CRIME AND THE

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with his control of vice,booze and gambling. His influence reaches into the South Clark Street and Cottage Grove Avenue police stations as well as the detective bureau. His p a y roll includes professional reformers, prohibition agents, and politicians of high and low standing. T h e underworld salutes him as " D u k e . " 1 T h a t s e n s e t h a t the w o r l d a b o u t one is all c r o o k e d m u s t b e t a k e n a s t h e r o o t of t h e p r o b l e m of d e a l i n g w i t h t h e c r i m i n a l . I t is not t o o m u c h t o s a y t h a t a s l o n g a s the c r i m i n a l g r o w s u p in a w o r l d w h e r e s u c h a g e n e r a l i z a t i o n is p o s s i b l e h i s c a r e e r is n o t o n l y p o s s i b l e b u t i n e v i t a b l e . T h a t t h e p r o f e s s i o n a l c r i m i n a l h a s s o m e j u s t i f i c a t i o n f o r his b e l i e f is i n d i c a t e d b y m o r e t h a n one r e s p e c t a b l e s o u r c e . T h e c r i m i n a l h a s o n l y t o k n o w t h a t c e r t a i n officials a r e c r o o k e d , a n d h e g e n e r a l i z e s t h a t all are crooked.

E v e n such a dignified and important federal body as the

W i c k e r s h a m Commission agreed that the criminal h a d some basis for his belief. T h e investigators were repeatedly t o l d — n o t by sensation mongers but b y observers of high position and ability, long experience, and unquestioned disinterestedness—that the courts know that some of the prosecutors are crooked, and the prosecutors know that some of the courts are crooked, and both know that some of the police are crooked, and the police are equally well informed as to them. 2 T h e s e t h i n g s d o h a p p e n . T h e y h a p p e n w i t h sufficient f r e q u e n c y to m a k e t h e p r o f e s s i o n a l c r i m i n a l b e l i e v e t h a t t h e y are u n i v e r s a l .

I t is p a r t of

h i s m o r a l j u s t i f i c a t i o n f o r t h e c o n f l i c t w h i c h h e c a r r i e s on w i t h s o c i e t y . T h e professional criminal can say, T a k e a case of murder, a cop generally gets plenty of thousands for changing his testimony or keeping quiet. There is always two coppers assigned to a case. One watches the other, and what one gets they both split. 3 A n d t h e e l a b o r a t e Illinois

Crime

Survey

reported:

T h e gangster is situated where he observes the policeman as the beneficiary of his earnings. A t times these exactions by the police become so heavy that he finds himself in a situation where he actually is working for the police. " I don't mind one man getting a little graft, but now we have four men, four sets of them come one after another. I would be glad if they left me a quarter (meaning one fourth of his proceeds)." 4 1Ibid.,

p. 862, footnote 2. C h a f e e , W . H. Pollak, and C . S. Stern, " T h e T h i r d Degree," Report on Lawlessness in Law Enforcement, pp. 86-87, N a t i o n a l Commission on L a w Observance and L a w E n forcement, R e p o r t N o . 1 1 . W a s h i n g t o n , 1931. 2Z.

sAheam,

op. tit., p. 241.

4P.

1049.

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The professional criminal himself takes an attitude of virtue against the corrupt politician and law officer, and is reported to have said (a statement that has been made in similar vein on many other occasions), There is one thing worse than a crook and that is a crooked man in a big political job. A man that pretends he is enforcing the law and is really taking "dough" out of somebody breaking it, even a self-respecting "hood" (hoodlum) hasn't any use for that kind of a fellow. He buys them like he would any other article necessary in his trade, but he hates them in his heart. 1

And so we come to a summary of the attitude. The professional criminal has grown up in an atmosphere of conflict and in a world filled with enemies. All life is a life of war, with the danger of treason and death always lurking in the shadow, and all this in a world which seems corrupt and dishonest. From childhood up he seems to himself to have had the wrong and the unfair end of life thrust upon him. He has always been persecuted and mistreated. Other men as much implicated as he have escaped, some have achieved power and wealth and influence and public standing, but he, for reasons beyond his own comprehension, has been mistreated. All talk of honesty, goodness, justice, morality, he knows to be false and hypocritical. Seeing all this crookedness going on around me, after being sent to prison to reform, you can see for yourself, why so many men came back after being sent out. There was no other way, being brought up around crooked men in office and politicians we soon got the impression that society were bigger crooks than we were, only they were lucky enough to get away without being caught. Arriving in prison, believing the Warden to be wrong, knowing the officers to be crooked, one can easily see in what frame of mind a man left prison. As far as I was concerned it was with the determination to steal everything I could lay my hands on for I left Elmira after serving my first term with a revenge in my heart towards society and hating everyone and everything, my only ambition in life being to get even. 2

Life is a sort of game, a game which he has been losing because he is more unfortunate than the rest. But he has to keep his end up—keep a stiff upper lip and live within the code that he has, as that is the way of a man. And within that code "they choose to fight their own battles and bury their own dead." 5 1

Ibid., p. 1049, quoting an interview with A1 Capone by Patricia Doherty, article in the Cosmopolitan Magazine. 2 Letter from a prisoner quoted in Frank Tannenbaum, Osborne of Sing Sing, p. 44. Chapel Hill, North Carolina, 1933. s Landesco, op. cit., p. 1051.

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All he knows about life, about people, about the world, is limited and circumscribed b y this curious contact with the world in this circular relationship. A f t e r a while he accepts it as a matter of course. H e bargains upon the amount of freedom he may have, hopes for escape, for total freedom from arrest; but bargains with fate and gives hostages to freedom, calculates his chances, and accepts the inevitable with stoicism. H e turns with bitter revenge upon the traitor, builds up a code of honor and rules of the g a m e — h e must be fairly caught and fairly dealt with, a recognized punishment for a recognized deed of evil. H e bargains with the district attorney, " c o p s a plea," calculates the amount of "good t i m e " that he can save by good behavior, uses his friends to secure leniency in judgment, bribes the policeman to change his charge, frightens the witnesses, or buys them or pleads with them to forget or to change their charge or to fail to appear in court, accepts imprisonment as a part of the game, and hungrily returns to the gang and to his career of crime again for another indulgence. A world of contacts and friendships is built up, and a code of honor. A good criminal and a "square g u y " are known and respected, a famous one is lauded and sought after, a clever one is admired, a " s n i t c h " is hounded, persecuted, and even killed. Treason to the gang, to the rules of the game, is unforgivable. So strong is the tradition that strangers may execute a common judgment even if they have not been hurt personally. In between are great emotional strains and fears. T h e exciting life leads to the need for excitement, stimulants are needed, perversions are acquired and practised, and the best foot is put forward, and the best face is turned upon misfortune. A man takes his " b i t " just as a soldier takes his wound, decently and without whining. T h e community itself has developed a certain admiration for the good and honest criminals; think of the admiration involved in the columns of news given to O'Banion in Chicago, who was known to be guilty of some thirty murders. Or to Chapman; he is [was] almost a hero. T h e police themselves speak with admiration of these men and boast of their friendship with them, and the wardens and guards tell you proudly how they handled them and got along with them. 1

BIBLIOGRAPHY AHEARN, DANNY. HOW to Commit ALLEN, TREVOR. Underworld.

a Murder.

I v e s W a s h b u r n , Inc., N e w Y o r k , 1930.

G . Richards, London, 1031.

A n n u a l R e p o r t s of the Police D e p a r t m e n t of the C i t y of N e w Y o r k . Especially 1 9 3 1 . BLACK, JACK.

" A Burglar L o o k s at L a w s and C o d e s . "

Harper's,

Vol. 160 ( 1 9 3 0 ) ,

pp. 306-313You Can't Win.

T h e M a c m i l l a n C o m p a n y , N e w Y o r k , 1926.

BOOTH, ERNEST. Stealing

through

Life.

A l f r e d A . K n o p f , N e w Y o r k , 1929.

' F r a n k Tannenbaum, " T h e Professional Criminal," in The Century, tember, 1924), pp. 577-588, at pp. 585-586.

Vol. n o

(Sep-

T H E PHILOSOPHY OF T H E PROFESSIONAL CRIMINAL

19S

and S T E R N . C . S . "The Third Degree," National Coramission on Law Observance and Enforcement, Report on Lawlessness in Law Enforcement, Report No. n . Government Printing Office, Washington, D. C., I93IE U B A N K , E A R L E E., and C L A R K , C H A R L E S L. Lockstep and Corridor. University of Cincinnati Press, Cincinnati, 1927. G U E R I N , E D D I E . I was a Bandit. Published for the Crime Club, Inc., by Doubleday, Doran and Company, Inc., Garden City, N. Y., 192g. Illinois Association for Criminal Justice. The Illinois Crime Survey. Chicago, 1929. Especially Part III, "Organized Crime in Chicago," by John Landesco. N E L S O N , V I C T O R . Prison Days and Nights. Little, Brown & Company, Boston, 1933. O ' D A R E , K A I N . Philosophy of the Dusk. The Century Company, New York, 1929. R O B E R T S , T H E L M A . Red Hell. R . D. Henkle, New York, 1034. S C O T T , W E L L I N G T O N . Seventeen Years in the Underworld. Abingdon Press, New York, 1916. SHARPE, MAY CHURCHILL. Chicago May, Her Story. The Macaulay Company, New York, 1928. S H A W , C L I F F O R D R., and M C K A Y , H E N R Y D. "Social Factors in Juvenile Delinquency." National Commission on Law Observance and Enforcement, Report on the Causes of Crime, Report No. 13, Vol. II. Government Printing Office, Washington, D. C., 1931. T A N N E N B A U M , F R A N K . Osborne of Sing Sing. The University of North Carolina Press, Chapel Hill, 1933. "The Professional Criminal." The Century, Vol. 110 (September, 1925), pp. 577-588. C H / . F E E , Z . . P O L L A K . \V. H . .

CHAPTER V i l i

•

Past

Theories of Crime 1

In the light of the materials presented in the previous chapters it is clear that organized crime in the United States has an institutional character. It has roots that reach into the very fiber of American life and that reflect the current institutional arrangements in a way that differs only in degree from other ways of behaving. Criminal activity calls forth and utilizes all those practices, attitudes, and institutions that collectively make up American urban life. The fact that it uses them in this fashion indicates merely that they can be used thus, and is from one angle a definition and description of the institutions themselves. Organized pecuniary crime, therefore, is a natural product of American life. Organized crime is a way of life, a way of making a living, a way of utilizing political influence, a way of expressing certain virtues and vices that are characteristic of the American community. Clearly enough crime is not merely personal, not merely an isolated affair of an individual acting against the world. It is the product of a situation, the outcome of a long process of habituation; in fact, it can best be described as a recognized institutional arrangement. In the light of this fact let us review the theories of crime that have attracted the most attention and have had the greatest influence in recent times. The theories that have had the greatest currency have rested upon a series of unproved assumptions, and have attempted to prove the conclusions to which the original assumptions pointed by the collection of more or less accurate and more or less pertinent materials; the authors have then given these materials such "scientific" treatment as seemed feasible and presented the results as evidence justifying the conclusions that were implicit in the assumptions.

1. Two Basic

Assumptions

The unproved assumptions underlying criminological theories are as follows: ' T h e point of v i e w here presented is so much in agreement with those of William I. T h o m a s and D o r o t h y S. T h o m a s in The Child in America and of M o r r i s P l o s c o w e in Some Causative Factors in Criminality, that I have made free use of their material and a c k n o w l edge m y indebtedness.

PAST THEORIES OF

197

CRIME

a. That there is a unitary cause for crime. This assumption runs through the whole range of criminological theory. It has been assumed that some one c a u s e — b e it some form of physical peculiarity, mental inadequacy, emotional quirk, or some economic f a c t o r — i s the cause of crime. Those who hold this theory are subject to the criticism that they rest " c a u s e " upon some single factor; they are really no different from the specialists of whom it can be said that It is notorious that medical practitioners in g e n e r a l — s u r g e o n s ,

gland

specialists, liver specialists, kidney s p e c i a l i s t s — a r e inclined to discover the s y m p t o m s of their specialties in the cases which come to them.

A represen-

tative of the concept of " i n f e c t i o n " in the etiology of mental disorders will view every case primarily from that standpoint. 1

The complexity of crime phenomena, and the complexity of the institutional arrangements within which crime finds its place and ways of maintaining itself, would make any unitary cause inapplicable, even if the advocates of these theories had shown an etiological relationship between the supposed unit cause and crime, which they have not. b. That the individual is inherently criminal. This assumption seemingly ignored the fact that behavior is socially conditioned. T h e notion that crime was individual maladjustment, to be traced to an individual shortcoming, was possible only because of a failure to recognize the obvious fact that crime is usually committed by groups; that even if it is committed b y an individual there is almost always a group in the background which has knowledge of, and directly or indirectly participates in, supports, approves, and justifies, the actions of the criminals who operate as individuals; and that even if there were no such groups (except in cases that approach insanity, and even then there is some doubt) the individual responds to and operates with a system of stimuli, suggestion, values, and attitudes that show him to be a member of the society where the crime is committed. The crimes are one way in which the existing institutional arrangements express themselves. Crime is not individually determined and cannot be dealt with in terms of the individual. Crime, in the light of the material already presented, must be considered as part of the total institutional structure of society and must be dealt with in those terms. In addition to these two broad assumptions there are a series of minor ones, equally unproved and equally incapable of proof, as will appear in the discussion of the theories themselves. 1

Thomas and Thomas, op. cit., p. 441.

198

CRIME AND THE COMMUNITY

2. Physical "Configuration"

and Crime

The most influential of the theories that attribute criminal behavior to the defective physical nature of the individual derive their source from Lombroso, who in 1876 popularized the idea that the criminal was such because of some anomaly in his physical constitution. These anomalies were variant and numerous and could be seen especially in the criminal's skull and brain. The deviations from the normal non-criminal could be discovered by measurement, and the presence of a certain number indicated the criminal nature of the individual and set him off from the non-criminals. These anomalies were of a varied sort: sclerosis, the epactal bone, asymmetry, the retreating forehead, exaggeration of the frontal sinus and the superciliary arches, oxycephaly, the open internasal suture, anomalous teeth, asymmetries of the face, and above all the middle occipital fossa among males, the fusion of the atlas and the anomalies of the occipital opening. 1

The stigmata distinguished the criminal from the non-criminal, tending to reduce the criminal to a type, the born criminal. The anomalies were throw-backs, atavisms, reflecting some earlier stage of human evolution, and the individual criminal was born out of his time—he was like the earlier savages. This Lombrosian theory and all those derived from its inspiration rest upon a series of assumptions which on their face are unproved and cannot be proved. a. The theory assumes that there is some sort of relationship between personal physical peculiarity and criminality, that there is a relationship between physical "configuration" and moral status. b. It assumes that the criminals and non-criminals differ from each other in the type and character of the physical peculiarities which they display. This has been disproved by Goring. c. It assumes that these anomalies are atavistic, throw-backs to an earlier age of physical being—an assumption not subject to proof. d. It assumes that the earlier, more primitive group forms were less social than present ones, and goes back to the ideas of a "tooth and claw" savage of the popularized Darwinism promulgated by enthusiasts of theories associated with ideas of the survival of the fit. e. It assumes something of a physical norm—an implicit perfection of bodily type which because it was physically perfect would also be morally perfect. 1 Cesare

Lombroso, Crime, Its Causes and Remedies, p. xvii. Boston, i g u .

PAST THEORIES OF CRIME

199

}. It assumes that we know what the normal proportions of the physical parts of the body are or ought to be. g. It assumes that these anomalies are inherited, and that therefore crime is inherited—that is, the spirit reflecting the contortion of the b o d y ; therefore that we are really concerned with " b o r n " criminals. h. If all the foregoing assumptions are true, according to Lombrosian criminology it follows further that society cannot do anything about it: it cannot change the anomalies and therefore cannot change the spirit of the criminal. It should be remembered that all this supposed knowledge and judgment was derived from the measuring of criminals convicted of crime and confined in prison. T h e whole theory rested on the belief that the men in prison were different from the men outside of prison, different physically and therefore different morally. A qualitative separation between the individuals convicted and confined and those free had been f o u n d — b y examining prisoners. It remained only for some one to examine a group of non-prisoners to see if there really was a physical difference between them; if there was not, then the source of the disturbed and perverted moral nature of the criminal would have to be sought in some other cause than the physical configuration of his body. Goring finally in 1913 published the results of such an examination, and showed that the entire structure reared by Lombroso on the examination of criminals broke down completely when the examination was extended to include noncriminals as well. 1 Goring divided his prisoners into groups according to the crimes for which they had been convicted: damage to property, stealing and burglary, sexual offenses, violence to the person, forgery and fraud. These groups he classified on the basis of thirty-seven anthropomorphic measurements and compared each group with the averages for the entire group, and found no important differences between the groups convicted for these various types of crimes. He then compared his prisoners with various groups outside of prison. Among these he included 1000 Cambridge students, 959 students from Oxford and Aberdeen, 118 military men and university teachers; and these revealed no marked differences when compared with the prisoners he was studying. Interestingly enough, there were shown to be greater differences between men from one university and those from another than between some of the prison groups under examination. 1 Charles B. Goring, The English Convict, p. 173. His Majesty's Stationery Office, London, 1913.

200

CRIME AND THE

COMMUNITY

If there be any real association between physical characters and crime, this is so microscopic in amount as not to be revealed by the values of our correlation ratios and coefficients of c o n t i n g e n c y — t h e s e values being of almost the same order of magnitude as would have been obtained if, instead of separating them into crime groups, our subjects had, prior to observation, been divided a t random into five or six categories of the same numerical proportion as our five or six sub-groups. 1

But ideas have a way of persisting, especially if they confirm a popular predilection, and in this case the prospect of giving a physical ear-marking to those whom the community would repudiate morally has been too strong. So we find the Lombrosian influence in one form or another still persisting in popular discussion. In fact, the idea of a criminal type persists even among scientists. Criminals as a group have physical characteristics differing from those of the non-criminal population and criminals vary physically according to the types of crimes they commit, the American Philosophical Society was told today b y Professor Earnest A. Hooton, anthropologist of Harvard University. His preliminary findings resulted from a comparative study during a five-year period of more than 18,000 inmates of penal institutions and insane asylums of the country and 2,000 members of the non-criminal population. Professor Hooton said that in daring to propose a relation of race and nationality to crime, he risked being subjected to a " Bronx cheer," but asserted that the criminologist was " t h e most abject failure of social science" and that the physical hereditary characteristics of criminal and mentally defective persons had been neglected largely because of prejudice. He declared he and his associates had obtained affirmative answers to all three questions about which their investigation centered, n a m e l y : " D o criminals of the same racial origin differ in their bodily characteristics according to the type of crime which they commit ? " D o criminals of any given racial or national group differ physically from the law-abiding population of identical ethnic origin ? " D o the various hereditary physical groups which we call races differ in their criminal propensities?" D a t a consisting of 120 morphological, metrical, and sociological observations on each of the 18,000 subjects of the investigation were so clear, the speaker said, that he was able to describe physically the memberships of certain criminal groups. First-degree murderers, for example, "diverge significantly from total criminal population," he said, " i n that they are older, heavier, taller, bigger-chested, with greater head circumferences, narrower foreheads, long and relatively 1

Ibid., p. 130.

PAST

THEORIES

OF

201

CRIME

n a r r o w e r noses, b r o a d e r j a w s , b r o a d e r e a r s , r e l a t i v e l y n a r r o w e r s h o u l d e r s , relat i v e l y shorter t r u n k s , r e l a t i v e l y l o n g e r h e a d s , l e s s h e a d h a i r , m o r e b o d y hair, s t r a i g h t e r h a i r , m o r e p r o n o u n c e d f o r e h e a d s l o p e , m o r e c o n v e x noses, f e w e r and p o o r e r t e e t h , b o t h f l a t t e r a n d m o r e p r o j e c t i n g e a r s , less f a c i a l a s y m m e t r y , e t c . " P r o f e s s o r H o o t o n s a i d t h a t s o m e of these d i f f e r e n c e s , " b u t b y n o m e a n s all of t h e m , " w e r e due to t h e h i g h e r a v e r a g e a g e of m u r d e r e r s .

T h i s descrip-

t i o n of m u r d e r e r s w a s d e v e l o p e d f r o m a s t u d y of 4,200 n a t i v e A m e r i c a n c r i m i n a l s of n a t i v e p a r e n t a g e , o n e of t h e t w e n t y r a c i a l a n d ethnic g r o u p s c o v e r e d in t h e i n q u i r y . S e v e n g r o u p s of c r i m i n a l s , he a s s e r t e d , w e r e c l e a r l y d i s t i n g u i s h e d f r o m t h e " t o t a l series of n a t i v e b o r n c r i m i n a l s " in their c o m b i n a t i o n s of b o d i l y m e a s u r e m e n t s " a n d in o b s e r v e d m o r p h o l o g i c a l c h a r a c t e r s . "

E v e n bootleggers, h e said,

d i f f e r e d as a c l a s s f r o m p h y s i c a l c h a r a c t e r i s t i c s of f e l l o w - c r i m i n a l s of t h e s a m e r a c i a l origin i r r e s p e c t i v e of o f f e n s e . 1 W i t h i n t h e L o m b r o s i a n t r a d i t i o n t h a t c r i m e is c a u s e d b y s o m e

sort

of p h y s i c a l a n o m a l y a r e to b e included the endocrinologists w h o

claim

t h a t t h e i r s c i e n c e is " t h e c h e m i s t r y of t h e s o u l . "

endo-

crinologists m a d e the following

O n e of these

statement:

. . . M o r e t h a n t w e n t y t h o u s a n d cases s t u d i e d f r o m e v e r y a n g l e , p s y c h o logically, neurologically, psychiatrically, physically, chemically and c a l l y f u r n i s h at least s o m e b a s i s for c o m p a r i s o n .

etiologi-

It w o u l d n o t s u r p r i s e t h e

w r i t e r if i n v e s t i g a t i o n s w e r e t o r e v e a l that a t h i r d of all p r e s e n t c o n v i c t s w e r e s u f f e r e r s f r o m e m o t i o n a l i n s t a b i l i t y , w h i c h is to s a y g l a n d or toxic d i s t u r b a n c e s . T h i s does not i n c l u d e f e e b l e m i n d e d or insane p e o p l e . 2 T h e reader should note that the author guesses; prised.

he would not be

sur-

T h a t is n o t e v i d e n c e of t h e d i s t r i b u t i o n of g l a n d o r t o x i c

dis-

turbance

in t h e g e n e r a l

population,

and

certainly

is n o p r o o f

of

the

implicit relationship between such disturbance and being arrested, tried, convicted, and sentenced for a crime.

Another endocrinologist said that

a f t e r s t u d y i n g p r i s o n e r s in S a n Q u e n t i n h e d i s c o v e r e d " a p o s s i b l e 10 t o 15 per cent s h o w o b v i o u s signs of g l a n d u l a r d y s - f u n c t i o n . " " T h i s p e r c e n t a g e i s , I believe,

noticeably higher than one

He finds

said: in t h e

population at large."3 H e r e a g a i n , t h e a u t h o r believed would

not be found

1New

that w h a t he found among

outside of prisons

prisoners

to the same extent, a n d

thus

York Times, April 23, 1932. G. Schlapp, " B e h a v i o r and Gland Disease," in Journal of Heredity, Vol. 15 (1924), p. 11. 3 Ploscowe, op. tit., p. 31, quoting Dr. Ralph Arthur Reynolds, of San Francisco. Italics 2M.

Dot in original.

202

CRIME AND THE COMMUNITY

assumed without proof that the disturbance establishes a connection between this type of unbalance and crime. These broad generalizations are made by the very scientists who say of their own discipline that . . . endocrine science is still in its infancy; that definite knowledge on many points is not yet in hand; that there are endless disputes and uncertainties ; that various experiments have reported diametrically opposite results from similar researches; and that positive or dogmatic statements are extremely perilous.1 How perilous are the claims these very authors made for their science is indicated by the following careful statement of Dr. William H e a l y : Conservative scientific endocrinologists who have undertaken very careful and prolonged special examinations of offenders for us, account in their reports for very little indeed of the antisocial behavior, and in spite of the muchadvertised and much-used extracts of glands, offer very few suggestions for treatment.2 As with the earlier theory of Lombroso, there is no evidence that men in prison differ in any marked degree from those not in prison in the particular deficiency complained of, and further, there is no evidence that such greater deficiency, even if it were found, had any direct causal relationship to the crime of the individual. Unless such a relationship could be shown the information given would be interesting but useless for the criminologist. A related development in the attempt to associate physiological and morphological anomaly with criminal behavior has grown up around Ernest Kretschmer's 3 attempt to identify body build with psychic disposition and temperament. A considerable amount of work both in Europe (especially in Germany) and in the United States has gone into this effort. So far as it bears upon the problem of causation in crime it suffers from the difficulties attributable to the other theories in the same field: most of the work has been done on the insane and on criminals. T h e attempts to establish clear-cut types are subject to so many exceptions and qualifications as to be seriously impaired; they assume a knowledge of causation of a sort which in the face of the complexity of the chemical processes governing organic life is clearly premature; they 1 Schlapp

and Smith, op. cit., p. 90. Healy, "Anti-Social Behavior: Delinquency and Crime," Chapter X V I of Human Biology and Racial Welfare (Edmund B. Cowdry, ed.), pp. 399-400. New York, 2 William

1930-

"Ernest Kretschmer, Physique and Character.

New York, 1925.

PAST THEORIES OF C R I M E

203

have no way of relating these types to the distribution of similar characteristics in the general population; and finally, the incidence of these types upon the kind of behavior which a complex society describes as legal or illegal is certainly beyond the limits of these theories. The theories may be valuable, they may have validity for description and classification, they may even have a bearing upon therapeutic objectives, and they may certainly be suggestive starting points for further research and other theories, but for criminology they are for the present, and possibly must remain for the future, of little or no value. Summarizing a lengthy discussion of the physiological-morphological approach to human behavior the Thomases said: But granting that there are wide differences in the constitutional organization of individuals, it is nevertheless necessary to define the meaning of this for behavior studies. The subjects representing these deviations are usually able to live and work with some kind of adjustment as doctors, lawyers, merchants, ministers, laborers, scientists, crooks, etc. The temperament is important occupationally, matrimonially, hedonistically, and valuable from the standpoint of the varieties of creative activity, but it cannot be claimed that behavior or performance ratios are distributed according to temperaments. All temperaments are represented among the normal, the insane and the criminal. The world is a world of deviates, and there are "various standards of normality" (Adolf Meyer). We even find the association of pathological trends, especially in the arts and sciences, with performances which we count as important and even unique values. Many of the prizes go to the psychopaths. 1

This seems an excellent judgment of the entire range of theory that comes under this heading.

3. The Intelligence

Test

A new species of Lombrosianism came to plague criminological theory just about the time that the older and simpler "criminal anthropology" was being repudiated. The new theory came in under the guise of intelligence testing. In the theory behind intelligence testing there were certain implicit assumptions. One of these was that intelligence had a cycle of development that behaved like physiaal growth—it reached p period of maturity and then ceased to grow further. This assumption, i rpMcit in Binet, became the basis of the idea of mental age. I t assumed »Op. cit., p. 503.

204

CRIME AND THE

COMMUNITY

that an intelligence quotient could be devised for each year of life up to the point where the individual had reached intellectual maturity, and that after that point the intelligence would remain stationary regardless of increasing years. Once this assumption had been adduced, there was left only to be determined the question of the age at which intellectual maturity was reached. If this question could be settled, then the entire population could be graded by a scale of chronology and intelligence, and distributed according to the results achieved on the tests. In 1 9 1 6 Terman, after examining 62 high-school students and business men, fixed 16 years as the average adult standard. An adult showing on these tests an intelligence quotient (IQ) less than that established for 16 years was classed as below par. Any child that tested lower than his chronological year was also classed as below par. To make this instrument useful in the study of criminology there was requisite one other assumption, that behavior was related to intelligence as described on these scales. This assumption was duly made, and the tests were applied to adult criminals, with the result that they were shown to fall below par; that is, below the average age of 16 years assumed for adults; and the fact that they had been convicted for crime strengthened the belief that their low intelligence was the cause of their misconduct. Criminals who fell below the average were defined as mentally deficient, and those who proved to be two or four years below this average were defined as feebleminded. This definition of feeblemindedness grew out of the giving of these intelligence tests to children in feebleminded institutions, who showed that deviation from what was considered normal for their age. The tests as applied to prisoners showed that a large proportion of prisoners fell so far below the assumed average for non-criminal adults that a large percentage of the men in prison were declared to be feebleminded. In fact, one student of criminology decided that only in the case of a few delinquents would there be need for finding other ways of explaining their behavior difficulties. J . Harold Williams asserted that It cannot be overemphasized that the average intelligence among our delinquent and criminal classes is considerably lower than in the general population ; that feeblemindedness is at least seventeen times as common ; that normal and superior intelligence are less than one-tenth as common; and that delinquents are not, as a rule, merely ordinary normal children who have accidentally become victims of an environment which would similarly affect any person. L o w intelligence, in many cases of delinquency, would alone account for the offenses committed.

There are, however, in any group of delinquents a few

PAST THEORIES OF

205

CRIME

children of normal and superior intelligence whose delinquency must be accounted for in some other w a y . 1 D r . G o d d a r d d i d n o t h e s i t a t e to s a y t h a t i n d u b i t a b l y n e a r l y a l l c r i m i n a l s , m i s d e m e a n a n t s , d e l i n q u e n t s , a n d o t h e r a n t i s o c i a l g r o u p s a r e of low m e n t a l i t y , a l a r g e p e r c e n t a g e b e i n g a c t u a l l y f e e b l e m i n d e d . H e c o n s i d e r e d l o w - g r a d e m e n t a l i t y , m u c h of it w i t h i n t h e l i m i t s of f e e b l e m i n d e d n e s s , a s the g r e a t e s t s i n g l e c a u s e of d e l i n q u e n c y a n d c r i m e . 2 T h i s j u d g m e n t , r e n d e r e d in 1 9 1 9 , w a s o n l y s l i g h t l y l e s s p o s i t i v e t h a n t h e s a m e authority's

statement

five

years previously.

In

1914

Dr.

Goddard.

b a s i n g his c o n c l u s i o n s on t h e r e s u l t s of i n t e l l i g e n c e t e s t s g i v e n in i n s t i t u t i o n s , a s s e r t e d t h a t " a t l e a s t 5 0 % of a l l c r i m i n a l s a r e m e n t a l l y d e f e c tive."3 H o w r e a d y s t u d e n t s w e r e to t a k e t h e s e a s s u m p t i o n s f o r g r a n t e d a n d to r e l a t e t h e i r t e s t s to c r i m i n a l i t y w i t h the i m p l i c i t belief t h a t t h e y h a d a causal relation can be seen b y some quotations given b y M i n e r : J a m e s B u r t Miner, in Deficiency and Delinquency, gives some published statements as to the percentage of deficiency found among delinquents, as follows: " P r o b a b l y 80 per cent of the children in the juvenile courts in M a n hattan and Bronx are feeble-minded." " P r e l i m i n a r y surveys h a v e shown that from 60 to 70 per cent of these adolescents (sent to the industrial schools in one State) are retarded in their mental development and are to be classed as morons." " F o r t y to fifty per cent of all criminals are feeble-minded." " T h e best estimates and the result of the most careful studies indicate that somewhere in the neighborhood of 50 per cent of all criminals are feeble-minded." " N e a r l y half of those punished for their wickedness are in reality paying the penalty for their stupidity." " M o r e than a quarter of the children in juvenile courts are defective." "One-third of all delinquents are as they are because they are feeble-minded." " I t is extremely significant in the study of juvenile delinquency that practically one-third of our delinquent children are actually feeblem i n d e d " (p. 1 6 6 ) . Miner believes these views highly exaggerated, although he thinks " m e n t a l deficiency is undoubtedly the most important single factor to be considered to-day in the institutional care of delinquents" (p. 1 6 7 ) . 4 All this occurred b e f o r e the intelligence tests h a d h a d a n y wide a p p l i c a tion to o t h e r s t h a n d e l i n q u e n t s a n d c r i m i n a l s , a n d h e r e a g a i n 1 J . Harold Williams, " D e l i n q u e n t Boys quency, Vol. 1 ( 1 9 1 6 ) , pp. 33-342 Henry H Goddard, Human Efficiency at Princeton University in i g i g ) , Princeton, 3 H e n r y H . Goddard, Feeble-mindedness, p. g. See discussion by Ploscowe, op. cit., p. 4

Ploscowe, op. cit., footnote, pp. 3 7 - 3 8 .

of Superior Intelligence," in Journal

of

was Delin-

and Levels of Intelligence (lectures delivered 1920, pp. 7 3 - 7 4 . Its Causes and Consequences, New Y o r k , 1 9 1 4 37.

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CRIME AND THE COMMUNITY

repeated the fallacy of Lombroso, the assumption that the non-criminal population would be found to differ from the men in prison. But this supposed evidence of the relationship between feeblemindedness and crime relied upon the belief that if the tests were applied to the noncriminal population no such large proportion of feebleminded would be found. Revision after revision of the tests established a normal adult mental age of 16. But when the tests were applied to 700 unselected adults in the army the average mental age was found to be only 1 3 . 1 In other words, the definition of feeblemindedness which had been applied to prisoners was found to apply as well to unselected adults outside of prison. An opportunity to apply the intelligence tests to the draft army revealed that B y using the assumed standard of 12 years as the dividing line between mental defect and normal intelligence, some 47% of the adult white inhabitants and 89% of the negroes of the country would be diagnosed as feeble-minded. Thus, the old standards were called into serious question, for obviously it is absurd to assume that we have a proper diagnostic agent in tests that diagnose almost half the adult population as defective, and as being " a t least potential criminals." These results have, indeed, called into question very seriously the value of applying such tests at all to adults.2 B u t this is not our major concern here. What is important is the f a c t that when the tests applied to the d r a f t army were later applied to prisoners it was shown that the adult delinquents scored about the same as the draft army if race, class, nationality, and locality were taken into consideration. T h e really significant aspect of the theory that related intelligence to crime rested upon the implicit and explicit assumption that the intelligence tests revealed the " i n n a t e " capacity of the individual under consideration. We had returned once more to the Lombrosian theory of the " b o r n criminal" except that now our evidence was derived from the measuring of intellectual capacity. B u t this assumption that intelligence tests had revealed something " n a t i v e , " inherited, invariable, and not subject to the environment—that " n a t u r e " rather than n u r t u r e " was being measured—also broke down. It was shown in the analysis of the draft-army tests that distribution of intelligence was different when classified b y race, class, and locality; that the Negro, for instance, in N e w Y o r k City rated higher than the white in certain other sections. 1

Ploscowe, op. cit., p. 40.

2

T h o m a s , op. cit., p. 3 3 7 .

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W h a t was apparently being measured was certain learned aptitudes and abilities rather than native intelligence. This questioning of the claims of the earlier intelligence testers that they had revealed the basis of a definite separation between different elements in the population upon something more significant than learning or environmental influences was further strengthened when it was shown that unrelated children reared in the same families tended to approximate each other in "intelligence" and that related siblings reared in different environments showed divergence in intelligence. T h e results, stated in a word, show " t h a t when two unrelated children are reared in the same home, differences in their intelligences tend to decrease," 1 and that residence in different homes tends to make siblings differ from one another in intelligence. But the criticism of the intrusion of the evidence deduced by intelligence testing into criminological theory and practice goes beyond this. T h e value of the evidence of the intelligence tests rests upon a statistical technique which was used to establish an "average intelligence" against which deviation could be measured, and distributed upon some sort of chronological scale that would relate age and intelligence. But there is serious doubt whether the scheme of reducing intelligence testing to numbers, the counting, adding, multiplying, subtracting, of percentage distributions and correlations, is permissible. T h e first requisite of statistical manipulation and description is that the thing counted should be something definite. As the Thomases said, " R i g i d definition must precede exact measurement." 2 Unless that is done, exact measurement is of dubious value. " T h e precision of measurements, the expression of results to the nearest millimeter, means very little when we have so inexact a notion of just what it is that is being measured so precisely." 3 The psychologists do not agree as to just what it is they are measuring. As Dearborn said, If we should ask what it is which constitutes intelligence, teachers and testers would hardly agree with each other or among themselves in their answers. In recent symposia on the subject held b y British and American psychologists, many and varied opinions were expressed. Some of the briefer statements or definitions, beginning with one of Binet's are ( i ) "Intelligence is judgment or common sense, initiative, the ability to adapt oneself." (2) Ac1 Frank N. Freeman and others, School Achievement and Conduct of for the Study 0/ Education, Vol. 27 op. cit., pp. 342 ff. 2 Thomas and Thomas, op. cit., p.

" T h e Influence of Environment on the Intelligence, Foster Children," Year Book 0) the National Society (1928), p. 139. See discussion, Thomas and Thomas, 332.

"Ibid., p. 331.

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cording to Burt: "Voluntary attention is the essential factor of general intelligence." (3) Terman says: "Intelligence is the ability to think in terms of abstract ideas." (4) "Intelligence is intellect plus knowledge," according to Henmon. (5) "Intelligence is an acquiring capacity," says Woodrow. (6) One of the best definitions is proposed by Ballard: Intelligence is "the relative general efficiency of minds measured under similar conditions of knowledge, interest, and habituation." Other definitions are: (7) Intelligence is a "composite measure of abilities to learn" (Gates), and one proposed by Thorndike (8) " W e may then define intellect in general as the power of good responses from the point of view of truth or fact." 1 W h a t we h a v e is a circular bit of reasoning. W e do not k n o w what intelligence is; so we define it, and after defining it we call it intelligence. H o w ill defined is the idea of w h a t constituted weak-mindedness can be seen from Goring's description of the delinquents he classes in that group a s The weak-minded category. The weak-minded offender is "one who is found to possess low degrees of general intelligence; or to hold extreme disregard for truth, for opinion, and for authority; or to be unteachable, unemployable, profligate, lazy, or to display marked preferences for undesirable company; or to be very impulsive, excitable, restless, uncertain, passionate, violent, and refractory in conduct; or to be careless in business, neglectful of responsibility, false and malevolent in speech, filthy in habits, and nearly always inebriate." 2 N o t only has there been no agreement as to what intelligence is, but also no agreement has been reached as to what age should be used as the dividing line between the normal and the subnormal. T h e question of whether 9, 10, 1 1 , 12, or 13 y e a r s was to be the dividing line between normality and subnormality has remained a matter of controversy. There has been considerable controversy among psychologists as to whether a mental age of 9, 10, n , 12 or 13 years represented deficiency. Where the data was interpreted by means of an intelligence quotient, the same controversy arose over whether an I.Q. of 50, 60, 70, or 75 was the proper criterion. Dearborn and Burt, for example, have maintained that an I.Q. of 50 was the proper dividing line, whereas testers such as Williams and the Ordahls have in fact used I.Q.'s of 70 and 75, respectively, to indicate the level of mental deficiency. 3 1Walter

F e n n o D e a r b o r n , Intelligence

Tests,

p p . 9 3 - 9 4 , B o s t o n , 1928.

P l o s c o w e , o p . cit., p p . 4 2 - 4 3 . 2Quoted

in T h o m a s a n d T h o m a s , o p . cit., p p . 4 4 5 - 4 4 6 ,

3Ploscowe,

o p . cit., p . 42.

See

discussion,

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209

There has been no standardization of definition or of tests, no agreement as to years, no accepted measure for the percentages that would establish the difference between the weakminded and the normal in an IQ rating. . . . In 1917 Gilliland reported that if 100 delinquents in the Columbus workhouse were given mental tests the percentage found feebleminded might vary from 19 per cent to 50 per cent, depending upon which of 12 standards was used. In the same year, Miss Fernald reported that if 100 delinquent women, inmates of Bedford, were graded according to nine different methods then in general use, the proportions diagnosed as feebleminded would range between 34 per cent and 100 per cent, depending upon the particular standard selected.1 Also, the prognostic value of intelligence testing has been seriously questioned; but that is not our major interest. We are concerned merely with the fact that as a contribution to criminological theory and as an explanation of causation the entire technique has broken down. There is no evidence that criminals differ from non-criminals in their distribution of intelligence as revealed by their IQ's. There is no evidence that there is any marked relationship (except in certain types of forgery and fraud) between intelligence and crime; there is no evidence that the intelligence tests measure inherited qualities; there is much evidence that intelligence testers have no clear definition of the thing they are testing, that their methods differ to such a degree that the results they obtain are not comparable, that their grouping of a prison population upon a scale of intelligence tests is with their present technique, broadly speaking, irrelevant to the issues that concern criminology. T h e early claims of the intelligence testers have been scaled down and their present methods are of dubious importance for the basic issues of why men commit crimes and what the community can best do with the criminal. Professor Sutherland, after examining all the intelligence studies available, came to the following conclusion—and the issue might be allowed to rest there: Mental tests of delinquents are certainly not standardized to the extent of eliminating important personal variations. It is probable that if ten persons of national reputation could test an identical group of delinquents, being free to use their own methods and criteria, the results would be strikingly different. We might expect Dr. Adler to report that about 7 per cent of the group were feebleminded, Dr. Doll 10 per cent, Dr. Healy 13 per cent, Professor Terman 23 per cent, Dr. Kuhlman 35 per cent, Professor Root 40 per cent, and Dr. 'Ibid., p. 39.

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Hickson 70 per cent. To be sure, if they all used the same tests and followed prescribed directions no such variation would be found, but they do not use the same tests and criteria. Consequently, a report regarding the proportion of a delinquent group feebleminded is of primary significance in locating the mental tester upon a scale of mental testing methods. In this sense the psychometric tests of delinquents throw more light upon the intelligence of the mental testers than upon the intelligence of the delinquents.1

4. The Psychiatrist

on the Stand

The decline in the fortunes of the psychological theories that concentrated upon intelligence testing as the means of classifying the criminal from the non-criminal was compensated for by the rapid growth and adaptation of a new theory serving the same e n d — p s y c h i a t r y . Interestingly enough, this new theory made identical claims with the previous one, based itself on assumptions equally unproved, and offered evidence for its conclusions even less capable of withstanding critical analysis than the older theory of intelligence testing had displayed. The psychiatrists' readiness to take responsibility for the explanation of causation in crime is evidenced b y the fact that as late as 1930 they were prepared to assert that From . . . studies of unselected groups of prisoners in different parts of the country, which may be justifiably considered a fair sampling of the population within our jails and prisons, we see that it is indeed a conservative statement when we claim that one-half of the criminal class is so by virtue of mental abnormalities.2 The authors' claim that they are conservative is proved by the fact that others of the psychiatric persuasion surpassed them in their readiness to identify criminality "in terms of deviation from the average normal health." D r . Glueck, whose study of Sing Sing prisoners in 1916 gave the application of psychiatric technique to the problem of crime its greatest impetus, said that "it is now being universally recognized that the pauper, the prostitute, and the criminal classes are primarily the product of mental defect and degeneracy and as such must come within the purview of mental medicine." 1 In speaking of the results obtained 1E. A . Sutherland, " M e n t a l Deficiency and C r i m e , " in Social Attitudes (Kimball Y o u n g , e d . ) , P- 362- N e w Y o r k , 1931. 2 Ernest R . G r o v e s and Phyllis B l a n c h a r d , Introduction to Mental Hygiene, p. 60. N e w Y o r k , 1930. 1 B e r n a r d G l u e c k , Studies in Forensic Psychiatry, p. 68. B o s t o n , i q i C .

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in one of its studies of 1 2 1 6 inmates in 34 county jails, the National Committee for Mental Hygiene said that In so far as the prisoners in this study are c o n c e r n e d — a n d it is believed they are representative of county-jail populations g e n e r a l l y — t h e problem of delinquency is a problem of recidivism, and recidivism is a problem of psychopathology. 1

Here there is no doubt as to the cause of crime—delinquency is a problem of recidivism and recidivism is a problem of psychopathology. The more enthusiastic adherents of this school believe, apparently, that psychopathy is inherited. At least Judge Olson of Chicago seemed to have doubts neither of the cause nor of the cure for this disease. England has been Draconian in punishment. Y o u know that 1 0 0 years ago they hung men for larceny in England. So England hung her law violators and she hung the defectives b y wholesale and cleared up the English population by the hanging.

Then E n g l a n d is a homogeneous country.

E n g l a n d doesn't let

anybody that wants to come from southeast Europe and A s i a or other places where there are a lot of defectives, they do not allow them to come into England. A n d we have allowed them to come to this country and we have done that ever since the birth of the country. 2

These general assertions are supported by tests reducible to statistical tables and stated in percentages. Dr. Glueck in 1 9 1 6 had found, out of 608 prisoners in Sing Sing, 59 per cent mentally diseased, feebleminded, or otherwise mentally abnormal. 3 The New York County jail and penitentiary study mentioned above, conducted by Frankwood E . Williams and V. V. Anderson, found 77 per cent of the inmates of these institutions to be "psychopathic individuals of well recognized types." A summary table of the results of psychiatric studies in penal institutions in nine states made by the National Committee of Mental Hygiene showed for some of the states that the number of " n o r m a l " prisoners was very low." Now these assertions that a large proportion of the prisoners were psychopathic individuals of a well-recognized type are of interest only if the people out of prison are markedly different. Unless and until the psychiatrist can tell us that the general population cannot be described 1 National Committee for Mental Hygiene, Report of a Mental Hygiene Survey of New York County Jails and Penitentiaries, with Recommendations, New York, 1924, pp. 142-143. 2 Judge Harry Olson, in the Proceedings of the Indiana Conference on Observance and Enforcement of Law, p. 32, Indianapolis, 1929. 3 " Concerning Prisoners," Mental Hygiene, Vol. I I (April, 1918), pp. 8 5 - 1 5 1 , at p. 86. 4 Ploscowe, op. cit., p. 51.

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in the terms he uses to describe the prisoners, he can give us no useful information as to the cause of crime; and hitherto his information rests upon the examinations given to the prison population. If it were to turn out as it did in the case of the physical anomalies of Lombroso and the I Q of the intelligence testers, that the traits described were similarly distributed in the general population, then the knowledge contributed by this new theory would prove of even less value than that which the older theories could claim. T h e reason for this is that the factual material which psychiatrists have to offer to criminology is less well defined, their basis of description and classification more amorphous, the base of their information is less standardized, than that of either the criminal anthropologists or the intelligence testers. The student of physical anthropology has a physical body that his calipers can measure, the intelligence tester has a scale upon which those taking the examination can be classified; the psychiatrist has nothing so concrete for his theory. The claim of the psychiatrists that they have discovered a causal relationship between crime and psychopathic personality, mental disease, or deterioration, is possible only because there is an assumed deviation from the average normal mentality. The idea of type, of normal, however, is a statistical construct. It has no existence in nature. T o compare the prison population in terms of any set of personal traits with some imaginary norm which does not exist is to indulge in idle intellectual play that may not be entirely harmless. It should be obvious that the only true norm is the central tendency actually found to exist in any " universe." T h e norm as the actually known, statistically determined average, is a scientific concept. T h e norm as an a priori determined status is a non-scientific concept. T h e norm must not be thought of as synonymous with perfection, because defects are universal. 1

Defects are universal, and those who would link criminal conduct with defect, either physical or mental, assume a perfect being who does not exist, and assume further that some specific d e f e c t — t h e one they consider important—is responsible for the crime of which they complain. These attempts always run into circular reasoning. As the "norm a l " is not known, he is defined as free from the specified blemishes and the criminal is defined as possessing them. " A really healthy mind does not originate conduct that is criminal," states the Arizona Mental Hygiene Survey. " M e n t a l health entails socialization and therefore pre1

Thomas and Thomas, op. cit., pp. 449-450.

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eludes antisocial conduct.'" This type of reasoning makes logical the assumption that the psychiatric traits define the criminal. He is described as a criminal if he has these traits; whoever has these traits is assumed to be a criminal. T h e behavior shown by persons who follow a career of crime is founded also on defects of bodily constitution, faulty training or both and may equally be labelled mental disease. This conclusion is permissible even when the criminal has shown no evidence of mental disease other than his criminal behavior. 2

In other words, a psychopath is one who has committed a crime, and a criminal is a psychopath. A few students have known for some time past . . . that the psychopathic women seem to differ in their delinquencies and not in their psychopathic traits from thousands in the general population whose emotional outbursts, vagaries, whimsicalities and hysterias come to our attention in the public print and otherwise—women with status, protection, greater charm or better luck. In artistic circles they would be classed as "temperamental." 3

Even the professional psychiatrist, in spite of his claims, has some doubts about his broad generalizations, just as the endocrinologist was shown to be skeptical about his specialty. Dr. Glueck, whose classification of 59 per cent of Sing Sing prisoners as deviates from the assumed normal was widely quoted, said, T h e criminal act, in every instance, is the resultant of the interaction between a particularly constituted personality and a particular environment. Because 50 per cent of the total number of cases examined were classifiable in psychopathological terms, it does not at all mean that these individuals were predestined to commit crime. In fact, there are, in all probability, many more psychopathically classifiable people outside of prison than there are within prison. 4

But later students frequently heralded his specific statement of a percentage of mentally deteriorated, diseased, or psychopathic, and forgot his admonition that "there are, in all probability, many more psycho1 National Committee for Mental Hygiene, Report of the Arizona Mental Hygiene Survey, p. 47, New Y o r k , 1922. 2 Editorial, "Psychiatry in Relation to Crime," in Journal of the American Medical Association, Vol. 95 (Aug. 2, 1930), p. 346. 3 T h o m a s and Thomas, op. cit., p. 458, referring to a study by Edith R. Spaulding, An Experimental Study of Psychopathic Delinquent Women, pp. 206-355 passim (New Y o r k , 1923). 4 Bernard S. Glueck, "Concerning Prisoners." Mental Hygiene, Vol. II, 1918, p. 96-

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p a t h i c a l l y c l a s s i f i a b l e p e o p l e o u t s i d e of p r i s o n t h a n t h e r e a r e w i t h i n prison."

B u t w o r s e t h a n this, of c o u r s e , is t h e f a c t t h a t n o a g r e e m e n t

e x i s t s in t h e d i a g n o s i s of the p s y c h o p a t h i c .

T h e differences that m a r k

t h e p s y c h o p a t h i c f r o m t h e n o r m a l a r e a s s u m e d to be q u a n t i t a t i v e , a n d t h e j u d g m e n t of the i n d i v i d u a l w h o m a k e s the c l a s s i f i c a t i o n b e c o m e s t h e g o v e r n i n g f a c t o r in the n u m b e r of p s y c h o p a t h i c i n d i v i d u a l s h e

will

d i s c o v e r in a n y g i v e n g r o u p . T h e psychiatrists themselves have recognized that they were not dealing with any clearly defined entity. Birnbaum states that because the difference in trait between psychopathic and normal is quantitative there is considerable uncertainty in the differentiation of the psychopathic. Whether the manifestation in question is to be classed within the natural limits of the normal character or as a psychopathic deviation depends wholly on individual judgment. Bleuler who differentiated various classes of psychopathic personalities states: " T h e following forms of disease have neither as between themselves nor as opposed to the normal individual any sharply defined limits, I may say any kind of limits at all." In Bleuler's opinion, it is arbitrary with the psychiatrist how acute and frequent the symptoms need be before a diagnosis of psychopathy will be made. 1 C o n s i d e r a t i o n s s u c h a s t h e s e j u s t i f i e d t h e T h o m a s e s in s a y i n g t h a t it is . . .

a scientific absurdity to claim, as is done in the report of the Mental

Hygiene Survey, that some 7 7 % of the criminals are abnormal, without having a n y actual norm to which this alleged deviating type can be referred.

Little

is known as to the incidence of psychopathic traits among the general, unselected population, or, more exactly, among the general population from the same age level, occupation groups, and social classes as the prison population. T h e most that this 7 7 % can be taken to mean is that certain a priori standards of normality, as determined by a group of psychiatrists, are not fulfilled in 7 7 % of the cases in this study. There is no knowledge available as to how far they are fulfilled among the general population. 2 T h e c o m p l e t e a b s e n c e of s t a n d a r d i z a t i o n of m e t h o d s , of s t a n d a r d i z e d d e f i n i t i o n of t e r m s , of i n v a r i a b l e c l a s s i f i c a t i o n of t r a i t s , m a k e s the w o r k of a p s y c h i a t r i s t an i n d i v i d u a l p e r s o n a l j u d g m e n t n o t c o m p a r a b l e w i t h t h e w o r k of other p e o p l e a n d n o t r e d u c i b l e to s t a t i s t i c a l f o r m a n d percentage bases.

T h e r e d u c t i o n of s u c h j u d g m e n t s to a s t a t i s t i c a l f o r m ,

a n d e s p e c i a l l y the s e t t i n g u p of single t a b l e s c o m b i n i n g the w o r k of s e p a r a t e i n d i v i d u a l s in v a r i o u s p l a c e s , is m i s c h i e v o u s to s a y t h e l e a s t . I t t e n d s to g i v e t h e w o r k a s e e m i n g a c c u r a c y w h i c h it d o e s n o t a n d u n d e r 'Ploscowe, op. cit., pp. 54-55.

2Thomas

and Thomas, op. cit., p. 450.

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215

the circumstances cannot possess, and it tends to classify large groups of the population in more or less invidious terms that after all have only a relative significance. Here and in related fields the attempt to be accurate, precise, scientific, in the statistical sense, had better await precise definition of what is being measured, standardization of the measuring instruments, and agreement upon the meaning of the terms employed for the thing discovered. It is only the absence of such elementary requisites of scientific procedure that could have made it possible for the National Committee for Mental Hygiene to issue the results of their surveys of the prison populations in nine different states. 1 This report gives the percentages of normal individuals in the jail populations of the states as follows: Kentucky 4.9, South Carolina 21.4, New York 22.9, Ohio (Cincinnati) 25.5, Georgia 26.0, Arizona 27.7, Maryland 30.7, Rhode Island (Providence County Jail) 37.6, and Wisconsin 55.4 per cent. The Wisconsin jail population has ten times as many "normals" in it as Kentucky, and nearly twice those of any other state given, while Georgia, Maryland, and South Carolina have a jail population (and by implication a general population) four or five times more "normal" than Kentucky. Such figures are on their face meaningless, nonsensical. The committee's report on feeblemindedness (including mental defect) shows even more striking contrasts. As the percentage of feebleminded in the jail population it gave Rhode Island (Providence County J a i l ) 1.6, Maryland 2.7, New York 7.6, Arizona 8.1, South Carolina 13.7, Kentucky 13.9, Wisconsin 16.4, Ohio (Cincinnati) 28.5, Georgia 34.0. In this case, with 1.6 per cent of Rhode Island's jail population feebleminded, and 34.0 of Georgia's, what was just said about the classification of the normal applies with equal force. When we get to the very expressive term of psychopathic personality, we find that Georgia has only 3.0 per cent of prisoners in its jails so classifiable, while Kentucky has 45.3 per cent of its jail population in that category, or that there are fifteen times as many jail inmates (and, by implication, people in general) who have psychopathic personalities in Kentucky as in Georgia. For the prison population these same tables show that North Dakota has approximately twice as many psychopathic personalities as any of the other states, and four times as many as Arizona. When we recall the lack of standardization in definition and technique, the only thing we can say is that one psychiatrist had this judg1

Quoted in Ploscowe, op. cit., p. 5 1 .

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ment, and a second had that judgment. But what all this has to do with a theory that would establish a causal relation between the criminal population (in prison) and crime in the community in general is the sum total of nothing. If individual shortcomings are to be made the basis of a theory in criminology that will explain criminal conduct and establish a causal relationship between them, then the work is yet to be done.

5. Environmental

Theories

We must notice briefly the various theories that relate crime to environmental, economic, and social causation. The attempt to correlate crime with climatic changes, with the price of wheat, with crop yields, with unemployment, even if the material lent itself to such attempts in a more satisfactory fashion, would be open to some basic criticism. When it is said that unemployment causes crime there is, apart from the statistical question of whether crime has really increased or whether arrests have increased, the question why some of the unemployed become beggars rather than thieves, why others turn to live on charity, and others become hoboes, and others prefer to live on their relatives, and still others commit suicide rather than accept any of these alternatives. Obviously the unemployed have all these alternatives: they can ( i ) live on their friends and relatives, or (2) accept public charity, or (3) become professional beggars, or (4) become hoboes and tramps, or ( 5 ) steal, or (6) finally, commit suicide. Now the economic deterioration that affects any number of individuals evokes all the responses listed above. N o satisfactory explanation is to be found in saying that any one response was "caused b y " unemployment; he who committed suicide might have become a thief, and he who became a thief might have committed suicide. The stimulus of unemployment did not have the inevitable result of calling forth the specific response, and it would be difficult to predict the proportion of those who in any community would choose one or the other path out of their difficulty. The answer lies in the fact that in each case there is already a preconditioned, more or less latent, more or less active habit system that is capable of coming into play when the situation arises. The unemployment acts as a stimulus not to the committing of crime, but to the previously conditioned habit system that accepts the alternative it is prepared to accept. One young girl faced with unemployment will become a prostitute, another will jump off a bridge, still another will find a job as a hostess in a

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speakeasy. She does the thing that contact, conversation, previous experience, previous knowledge of the world and its ways, previous living, make feasible and possible. She will become a prostitute, or a shoplifter, only if that alternative to her present life is a logical one in terms of her present total habit system. One illustration may make the point clear. Some years ago a woman in Michigan was sentenced to serve thirty days in jail. Rather than accept the disgrace of a jail sentence she killed her three small children and committed suicide. That response was possible only because of a certain definition of honor, of disgrace, and of the value of life; if for instance she had had a profound belief the suicide would damn her soul and the souls of her children forever, then suicide might not have been a possible alternative to disgrace. In other words, the socially conditioned habit system must already exist before it is brought into play by the stimulus of any of the economic factors that are set up as the cause of crime. The economic cause is a stimulus that releases a more or less latent habit system already in existence. The "cause," if we must use such a term, lies in the development of the habit system—and that lies in the complete life experience of the individual in his particular society.

6. The Sociologists So far as the sociologists have confined their research to one or another environmental factor—such as overcrowding, low income, broken family, child labor—and have studied these things as bearing a causal relationship to crime, their work may be classified with that of the economists. They have not accounted for the fact that some individuals, subjected to all these environmental influences, have escaped becoming criminals. The investigations of Shaw and M c K a y , often quoted in this work, stand on a somewhat different footing. They have uncovered the areas where a greater number of criminal careers come to the surface in proportion to the population than in other localities. These areas are areas in deterioration, conflict, transition. The social process here provides an intensified and varied stimulus for the developing careers. The alternatives between the criminal and non-criminal ways of life are, so to speak, on a par, and each is open to new recruits. Disorganized areas provide opportunity for more than one type of education, and for a great variety of reasons some children step into one educational process rather than another. The criminal career is revealed to be the outcome of a natural process of learning and habituation which tends to fit

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into its special environment and seems to satisfy all the ordinary needs of an ordinary child in such an environment as it finds itself in. The specific development of the detailed factual material of the educational process in the criminal career must be considered as one of the first major contributions to an explanation of the phenomenon of criminal behavior.

7. A Theory of Criminology A theory of criminology must first of all be a theory of behavior, of which criminal conduct is only a part. None of the theories we have considered either attempts or professes to attempt to explain the integration of the complex systems of habit that ultimately provide the basis for the special conditioning of professional skill which makes for the criminal career or its numerous alternatives—teacher, lawyer, doctor, candlestick maker—or any combination of these. Unless and until our theory is broad enough to explain the growth and development of all types of integrated behavior systems, it cannot hope to explain any of the forms of behavior, criminal or otherwise.

BIBLIOGRAPHY GLUECK, BERNARD. Studies in Forensic Psychiatry. Little, Brown & Company, Boston, i g i 6 . GODDARD, HENRY H. Human Efficiency and Levels of Intelligence. Princeton University Press, Princeton, 1920. Feeble-Mindedness, its Causes and Consequences. The Macmillan Company, New Y o r k , 1914. GORING, CHARLES B. The English Convict.

His Majesty's Stationery Office, London,

1913GROVES, ERNEST R . , a n d BLANCHARD, P H Y L L I S .

Introduction

to Mental

Hygiene.

Henry Holt and Company, New Y o r k , 1930. HEALY, WILLIAM. "Anti-Social Behavior: Delinquency and Crime." Chapter X V I of Human Biology and Racial Welfare (Edmund V. Cowdry, editor). P. B. Hoeber, Inc., New Y o r k , 1930. Indiana Conference on Observance and Enforcement of Law. Report. Indianapolis, 1929. KRETSCHMER, ERNEST. Physique and Character. Harcourt, Brace and Company, New York, 1925. LOMBROSO, CESARE. Crime, Its Causes and Remedies. ( M o d e m Criminal Science Series.) Little, Brown & Company, Boston, i g n . M I C H A E L , JEROME, a n d ADLER, MORTIMER J .

Criminal Justice.

An

Institute

of

Bureau of Social Hygiene, New York, 1932.

Criminal

Law

and

PAST THEORIES OF CRIME

219

National Committee for Mental Hygiene. Report of a Mental Hygiene Survey of New York County Jails and Penitentiaries, with Recommendations. New York, 1924. Report of the Arizona Mental Hygiene Survey. New Y o r k , 1922. PLOSCOWE, MORRIS. " S o m e Causative Factors in Criminality." National Commission on Law Observance and Enforcement, Report No. 13, Report on Causes of Crime, Vol. I. Government Printing Office, Washington, D . C., 1931. SCHLAPP, MAX G. "Behavior and Gland Disease." Journal of Heredity, Vol. 15 (1924), No. i, pp. 3 - 1 7 . SCHLAPP, MAX G., and SMITH, EDWARD H. The New Criminology. Boni & Liveright, New York, 1928. T H O M A S , W I L L I A M I., a n d T H O M A S , DOROTHY SWAINE.

The

Child

in America.

Al-

fred A. Knopf, New Y o r k , 1928. WILLIAMS, J. HAROLD. "Delinquent Boys of Superior Intelligence." Journal of Delinquency, Vol. I (1916), pp. 33-34. YOUNG, KIMBALL (ed.). Social Attitudes. Henry Holt and Company, New Y o r k , 1931. Especially " M e n t a l Deficiency and Crime," by E. A. Sutherland. (See also the b i b l i o g r a p h y regarding past theories of crime given for C h a p t e r I . )

Part II THE ADMINISTRATION OF CRIMINAL JUSTICE

CHAPTER

IX

• Police Administration

T h e mutual interdependence of all branches of the administration of criminal justice still leaves the police with a peculiar burden in the effective enforcement of the criminal law.

N o t only m a y police laxity be

responsible in part for the amount of crime committed in a c o m m u n i t y , b u t also the proportion of offenders brought to prosecutors, courts, and prisons for ultimate disposition rests upon the quality of the w o r k of the c o m m u n i t y ' s first line of defense against crime.

If alert and vigilant

patrol does not forestall crime, it at least leads to its prompt discovery, and the immediate institution of criminal investigation.

T h i s in turn

must precede apprehension, without which the rest of the machinery of criminal justice is helpless. A s the C h i c a g o Citizens' Police C o m m i t t e e put it: Although the [police force] constitutes only a portion of the machinery of criminal justice and in part depends upon related public agencies for its most effective operation, there is one respect in which it is wholly unique. From the very nature of things the police are the first to come into contact with both crime and criminals, and hence the initial action which they take conditions almost everything which the prosecutor, courts, and jailers are expected to do. Certain it is that if protective patrols are not maintained, many crimes will be committed without fear of immediate police interference; that if criminal investigations are lax, relatively few apprehensions will be made; and that if apprehensions are not made, the balance of the criminal justice machine will never be put in motion.1

1. Police

Functions

In the modern American c o m m u n i t y , the acts of which the police are expected to take cognizance are enormous in variety as well as in number. T h e police h a v e been used as a " c o n v e n i e n t instrumentality for the performance of all manner of public functions without much discrimination." 2

T h e prevention and the repression of attacks upon life and

property and of breaches of the public peace are b y no means their only concern. Some of the most difficult police problems arise from the use Chicago Police Problems, pp. 4-5. * Bruce Smith, unpublished research memorandum on Police.

1

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COMMUNITY

of the police in the enforcement of community standards of public m o r a l s : the repression of prostitution, gambling, possession and sale of drugs and liquor. A tremendous amount of police energy is absorbed in the attempt to enforce motor vehicle laws, laws protecting the public health and s a f e t y , tenement house laws, laws regulating conditions in industry, and in the performance of a host of administrative functions which m a y h a v e little or only remote relation to the enforcement of the criminal law. A m o n g the commonest of these are the licensing of public h a c k s and drivers, pawnbrokers, secondhand shops and j u n k dealers, pool rooms, dance halls and public exhibitions, Sabbath entertainments, parades, private watchmen, private detectives, railroad police, and street v e n d e r s ; the conduct of a public ambulance s e r v i c e ; the supervision of paroled convicts; the registration of voters and verification of poll lists; the enumeration of inhabitants;

the examination of prostitutes for

venereal diseases; ice-breaking in navigable w a t e r w a y s ; the provision of temporary lodging for the homeless and emergency relief for the destitute; the management of free employment agencies; the running of neighborhood entertainments and dog pounds. 1

Forward-looking

police commissioners have used the police for purposes of crime prevention also, using methods akin to those of social service for juveniles, ex-prisoners, and the destitute. T h e multiplicity of police tasks has grave implications for the performance of the fundamental duty of the police to protect life and prope r t y and preserve the peace. In the first place, the performance of some of these functions is quite beyond police capacity, and many are of " s o burdensome a nature as to divert the attention both of police administrators and of the rank and file away from the fundamental business of protecting life and property

T h e r e is a tremendous drain, too, on the

m a n power of the force. T h e attempt to enforce a code of morality behind which there is no unanimity of opinion also puts a strain on the honesty of the rank and file. M e n supplying illegal commodities for which there is a large demand are willing to share their profits if the police will not disturb their activities. H e r e is the source of police corruption in every large American city. It is only a small step from sharing the profits of gamblers, pimps, and drug peddlers to dividing the booty of pickpockets, burglars, and stick-up men. T h e s e facts j u s t i f y the view of many police administrators who would like to see the repression of commercialized v i c e turned over to some other agency. T h e y would confine the police to 1 Bruce Smith, " M u n i c i p a l Police Administration," in The Academy of Political and Social Science, V o l . 146 (1929), p. 3.

Annals

of

the American 2Ibid.

POLICE A D M I N I S T R A T I O N

225

the protection of life and property and the preservation of the peace, distributing other administrative functions to other governmental agencies, and making traffic regulation the function of a separate department. With all its manifold functions, the municipal police department is a highly complex organization. In the large cities police duties take up the energies of semi-military forces running into the thousands. T h e largest by f a r is New Y o r k City, where the police department in 1 9 3 5 numbered 1 7 , 8 4 2 . Chicago's force in 1 9 3 5 had 6642 members. Buffalo, with a population approaching 575,000, required a force of 1 1 3 7 men in 1 9 3 5 . T h e physical equipment is commensurate with the size of the forces. Station houses, automobiles, motorcycles, horses, signal systems, communications of one kind or another, scientific laboratories, and armories require large capital investment. T h e annual expenditures of police departments tell an equally impressive tale. T h e outlay of the New Y o r k police department in 1 9 3 5 was 8 6 1 , 1 3 2 , 1 5 4 . 3 9 . Eight cities having populations of between 500,000 and 1,000,000 spent from $3,000,000 to $6,000,000 each on their departments in 1930. T h e enormous staff and plant are going twenty-four hours a day, seven days a week, every week in the year.

2. Organization and Control American municipalities have failed notoriously in the organization of their police departments. T h e direction of the force has not been integrated with the rest of the municipal government in such a way as to maintain the responsibility of the police head to the municipal government while allowing him to administer the department according to the functions it is supposed to perform. American municipalities have failed to organize the department itself in such fashion that the head of the force can supervise the work adequately and thus assume responsibility for its performance. T h e y have failed to construct police departments on territorial lines commensurate with the conditions of modern life and criminality. They have failed to organize the various bureaus in a department in such a manner as best suits their functions and permits harmonious co-operation among them. There has been no unanimity as to who or what should head police departments or as to the precise relationship of the police head to the municipal government. Forms of control are almost as numerous as the municipalities themselves, and have offered a prolific field for municipal

226

CRIME AND THE COMMUNITY

experimentation. "With the exception of one or two cities," wrote Fosdick, "no carefully thought out plan of supervision has been fixed upon and maintained as a type most likely to meet legitimate demands for years to come. Instead, American cities, as if in panic, have rushed from one device to another, allowing little or no time for the experiment last installed to prove itself, apparently under the belief that somewhere or in some fashion a form of machinery could be found or developed which would ensure perpetual efficiency and guarantee the lasting integrity of its operators." 1 New Y o r k , for instance, in seventy-five years suffered "nine fundamental changes, involving distinct breaks with the past . . . in the framework of her organization." 2 Other cities show a similar developmental history. Changes are not made in good faith. The struggle for party dominance, the desire for jobs for the faithful, and the determination to control the machinery of elections are among the primary reasons for changes. "There is scarcely a city in the United States in which the police department has not been used as the ladder by which political organizations have crawled to power." 3 The police have been controlled by city councils, popular election, independent administrative boards (differing in size, composition, and methods of choice), commissioners of public safety under the commission form of government, and by commissioners appointed by the chief executive of the c i t y — o r of the State, as in Boston. The control of the police by committees of city councils is still fairly common in the smaller cities, towns, and villages. It is still used in some cities as a convenient instrument for the geographic distribution of patronage, just as in the early days of police administration.* Control by boards composed of individuals not members of the local legislatures is frequently to be met with also, despite the fact that it has conspicuously failed to remove the police from politics, and despite the fact that the function of police administration requires a degree of initiative, decisiveness, and vigor which no board with responsibility divided among officers of equal rank and authority can hope to exercise. In 1937 only four large cities—San Francisco, Los Angeles, St. Louis, and Milwaukee—retained board control of their police. All others had single-headed leadership in one form or another, in recognition of the fact that no structural arrangements can serve as a barrier to politics if 1Raymond JIbid.,

B. Fosdick, American Police 3Ibid., p. 115. p. h i .

*Tke

Annals

(1929), p. 4.

of the American

Systems,

Academy

pp. 109-110. New York, 1920.

of Political

and Social

Science,

Vol.

146

POLICE ADMINISTRATION

227

a community is willing to allow politics to be played with its police department. Only single-headed leadership permits the experienced and skilled direction of a specialized department. One pernicious form in which single-headed leadership appears is in the commission government which spread rapidly throughout the United States in the first quarter of this century. Here one of the group of commissioners elected to run the municipal government serves as the commissioner of public safety, the administrative head of the police department. It is intended that he act in a supervisory capacity, leaving the actual direction and control of the force to its technical chief, the superintendent. But the barbers, undertakers, railway switchmen, doctors, carpenters, merchants, who serve as commissioners of public safety suffer no such limitation on their powers. The experienced technical head is usually displaced from all but the most routine administrative duties by the inexperienced commissioner of public safety. Usually, fearful for his job or his pension, the technical head offers no open resistance, though he may find indirect methods of nullifying his commissioner's plans and orders through his superior knowledge of the workings of a police force. A grand jury in Schenectady in 1926 pointed out what happens when the technical chief of police refuses to submit tamely to interference of a commissioner in his department. The Commissioner of Public Safety had stripped the chief of police, a man of long experience and acknowledged competence and integrity, of most of the powers of his office, had interfered in appointments, assignments, and promotions. The result, stated the Grand Jury findings, was that the force was utterly demoralized and the community was deprived of the benefits of the chief's long experience and high ability. 1 The periodic election of commissioners—their terms vary from two to four y e a r s — also militates against the elimination of politics from police affairs. The commissioner is tempted to use the department to assure his re-election. Under the commission form of government the police themselves, anxious to keep a commissioner toward whom they are favorably inclined or to defeat one whom they do not like, have a great incentive to mix in politics. In New York, Chicago, and other large cities, the control of the police is centered in the mayor or city manager. He, as the chief executive of the city, is also the supreme police authority, with a chief of police or a commissioner appointed by him in immediate command. But even here, executive responsibility is sometimes vitiated by the civilJ

New York Crime Commission, 1Q37 Report, p. 303.

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CRIME AND THE

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service restrictions surrounding the tenure of the chief: they may make his removal by the mayor impossible except upon the gravest lapses in official or personal conduct. On the other hand, where the chief is totally dependent on the mayor there is again partisan and usually inexperienced administration of the police force. If, as in New Y o r k , there is at least a tradition of administration by technical heads, that administration is short-lived, since the administrator is still dependent upon the partisan mayor, and usually goes out of office with him. While the type of control, through interference from above, has affected the ability of the police head to run his department, the structural organization of the department seriously affects his ability to assume and exercise responsibility for its acts and to give it direction. As new functions were given to police departments, as changing conditions of criminality and the advancing science of police work increased and diversified the tasks involved in the protection of life and property, police departments simply added on new and independent bureaus. A long line of specific activities was placed directly under the chief, with the result that his effectiveness as a general supervisor was hampered by the petty details with which he was constantly confronted. In 1931 the Chicago Citizens' Police Committee reported: T h e r e are no less than nineteen separate and distinct officers, bureaus, divisions or sections which owe direct administrative responsibility to the police commissioner. In other words, the highest police authority is burdened w i t h a task of detailed supervision which is greater than that of a n y of his subordinates and which far exceeds the capacity of any one man. T h i s condition is reflected in the supervision a c t u a l l y accorded to the various units since it is impracticable for the police commissioner to m a k e daily or even intimate contact with the heads of the nineteen separate units directly responsible to him. . . . [ T h e ] actual responsibility for decisions and policies frequently falls into the hands of a score of administrative subordinates. 1

Under such conditions not only central supervision and centralized responsibility, but also co-ordination of the work within the department are impossible. When the Citizens' Police Committee made its investigations in 1929-1930, a number of independent bureaus, divisions, and sections shared responsibility for the performance of intimately related activities. Traffic, for instance, was handled by the traffic division, the motorcycle section, the vehicle section, and forty-one district commanders. The city's most harassing traffic problem, that of the central 1 The

Citizens' Police Committee, op. cit., pp. 12-13.

POLICE

ADMINISTRATION"

229

zone, was treated as a mere adjunct of the work of the first division. The drillmaster, chief surgeon, and first deputy commissioner handled problems of personnel. Still, it is generally conceded by the foremost authorities on police work in the United States that giving the mayor the sole power to appoint and remove the police commissioner is undeniably the best form of control. A s Chicago Police Problems put it, W h e n all is said and done, it is the m a y o r w h o must assume responsibility for the kind of leadership which the Police D e p a r t m e n t receives. T h e control and direction of the police force in a complex urban community like C h i c a g o is and ought to remain in his hands. T h i s does not mean t h a t the m a y o r should be police commissioner, or that he should directly concern himself w i t h the details of police administration.

I t does mean, however, that the policies of

the Police D e p a r t m e n t must be in general harmony with the views of the social groups w h i c h the mayor represents. . . .

I t is vain to expect either

good police w o r k or reasonable continuity of police leadership until the voters of Chicago are able to elect consecutively a series of mayors who possess the courage and the foresight to see the police problem within its feasible limitations, but w h o will also insist that the police force exists for the protection of persons and p r o p e r t y rather than for other extraneous and at times extra-legal purposes. . . .

So the voters of the city are confronted not w i t h a police prob-

lem alone, but w i t h the even larger problem of civic control. 1

In 1932 the reorganization plan recommended by the Citizens' Police Committee went into effect. All the bureaus, divisions, sections, and districts were reduced to eight major groups: ( 1 ) uniformed patrols, (2) criminal investigations, (3) traffic regulation and control, (4) training and discipline of police personnel, (5) management of property and departmental records, (6) criminal records and statistics, ( 7 ) communications, (8) crime prevention and morals regulation. T h e rearrangement was effected by the combination of some units and the division and distribution of others according to their functions. T h e traffic bureau, for instance, now takes in the work previously performed by three independent units, and is itself independent of the uniformed patrol force. Chicago's reconstruction incorporated the basic principles of good police organization: ( 1 ) the unification of command, (2) the limitation in the number of major units which permitted general supervision b y the department head, and (3) the grouping of related activities. Its results were soon apparent: in his annual report for 1932 the chief of police stated: »Ibid., pp. 44-45.

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CRIME AND THE COMMUNITY

Uniformity of practice, improved discipline, economies in man power through grouping of activities, increased flexibility of available man power and a generally smoother functioning of the police department as a whole, constitute some of the more striking results.1 T h e favorable picture of organization in Chicago, however, is not general throughout the country. M a n y departments are still in the state in which Fosdick found them before 1920 : lacking that structure which would permit proper supervision b y the head of the force, proper cooperation between the various parts of a force, and adaptation to the tasks of police work. T h e traditional practice of organizing police departments on a municipal basis has seriously handicapped the effectiveness of police w o r k b y rendering impossible a single policy and a united front against crime. T h e criminal of today knows no boundaries. He commits his robbery, kidnaping, or murder in one city, and b y means of a high-powered car escapes across half a dozen others. Even at the very start of the chase, dozens of separate police organizations must be set in motion when the crime occurs in a metropolitan section of the country. Their readiness to co-operate, their efficiency, their equipment, are all matters beyond the formal control of the department in whose jurisdiction the crime took place; and y e t success or failure in the pursuit of the criminal is v e r y often dependent on the work of these neighboring or distant police. Before the development of modern methods of transportation and communication, and before the concentration of population in metropolitan districts, the independence of the police department of each municipality had a justifiable basis. E a c h center, more or less isolated from the next, had to have its own instruments of government. But populations have multiplied and spread without regard for municipal boundaries. T h e protection of life and property presents a single problem throughout any particular urban area. As much intelligence and efficiency is required in one section as in another. Y e t each city in the area maintains its own police department with varying standards of efficiency and dependability. For decades Greater Boston has been the classic example of an urban area badly in need of co-ordinated police effort. T h e city itself has a population of only 780,000; but within fifteen miles of the golden dome of the state house live over a million more souls, making Greater Boston the third largest urban area in the country. Within this area are forty 'Chicago Police Department, Annual Report, 1932, p. 8.

POLICE A D M I N I S T R A T I O N

231

independent police departments, f o r t y chiefs of police, forty administrative heads, including police commissioners, directors of public s a f e t y , and boards of selectmen, and forty different policies governing police work. Ferries, trains, and trolleys, private automobiles and public buses, have made the boundary lines indistinguishable and meaningless. for police work they have serious import. diction has no authority in another.

But

A policeman of one juris-

If he wishes to pursue a criminal

beyond his own boundaries, he must communicate with another police department. A s Harrison w r o t e : . . . Brookline is almost entirely surrounded by Boston. The boundary line between the two . . . passes through some residences. Thus when a burglary occurs, it makes a difference which side of the house has been entered. If from the rear, a Boston policeman must be called; if from the front, a Brookline one. The city of Cambridge extends almost to the very centre of Boston, and is flanked on two sides by the Brighton and Charlestown sections. A person who boards a trolley car at Harvard Square in Cambridge, can, for a single fare, ride through a half-dozen separate police jurisdictions. Citizens have been known to discover crimes in Cambridge and to run for a policeman, only to find that the first one encountered belonged to the Arlington, or Belmont, or Watertown department, and had no authority to handle crime complaints in a "foreign" city. From the point of view of efficiency, there would be as good a reason for having nine independent departments within the city of Boston proper as in the territory which includes Watertown, Belmont, Arlington, Medford, Cambridge, Somerville, Maiden, Everett, and Chelsea. 1 Harrison w a s b u t one in a long line to recommend the consolidation of the Greater Boston police forces. T h e Massachusetts Special C r i m e Commission urged it in D e c e m b e r of 1933, and legislation with this end in view has been proposed periodically. B u t proposals for consolidation have a l w a y s met with determined resistance. T h i s was well brought out by Harrison: Among these cities and towns there are to be found exceptionally good government, government of indifferent quality, and if reports are to be credited, downright poor government. Both the well governed and the poorly governed insist upon home rule. In cities and towns where eminent and disinterested citizens are customarily chosen to run the government there are evidences of strong local pride. The people of these communities are said to be strongly opposed to any form of consolidation with Boston. The poorly governed cities and towns are generally in the hands of favor-seeking politicians, and the 'Leonard V. Harrison, Police Administration m Boston, p. 159. Cambridge, 1934.

232

CRIME AND THE COMMUNITY

political plunderer reacts to the suggestion of metropolitan government in exactly the same way as the disinterested official. The one desires to save his community from despoliation by the "Boston gang"; the other desires to preserve his own favored position in his community. Both are afraid that establishment of a metropolitan police organization would be the entering wedge for the creation of a metropolitan fire department, health office, public works division, and so on. Consolidation of police forces is vigorously opposed by high ranking police officials in the many departments of metropolitan Boston. There is little chance to defeat this opposition, for it is difficult to persuade the local officers that their prestige would be enhanced if they were attached to a metropolitan department.1 Thus, though consolidation is practicable, as proved by the forces of metropolitan New York, London, and Los Angeles, and though it would result in economy and greater efficiency through improved facilities for recruiting and training and would end in the provision of specialized services which small departments cannot afford, Boston, with its forty forces, like Greater Chicago with its three hundred and fifty conflicting police forces, and greater Cincinnati with its hundred and forty-seven police agencies, still awaits a form of organization which will put it on equal footing with the criminal.

3. Personnel Necessary and helpful to efficient police work as sound organization is, the primary problem of police administration is still the problem of personnel, extending from the commissioner at his mahogany desk to the patrolman. Fosdick laid the maladjustment of the police machinery more to the lack of trained and intelligent administrators than to any other one factor. The crude political conceptions which have allowed such a specialized community function as police " t o be managed by a periodically shifting body of unskilled, unfit, unprofessional executives" have wrought almost irremediable injury to police organization. 2 The quality of the personnel is important all the way down the line. " I n the final analysis," wrote Fosdick, "police business is but the aggregate of personal enterprise, and the quality of a department's work depends on the observation, knowledge, discretion, courage and judgment of the men, acting as individuals, who compose the various units or branches of the organization. T h e operation of mere organization machinery may 1 Ibid.

)

pp. 160-161.

2 Fosdick,

op. cit., p. 215.

POLICE A D M I N I S T R A T I O N

233

achieve a high degree of perfection, but if the members of the force, acting in their individual capacities, go about their tasks without intelligence, tact or public spirit, the ' s y s t e m ' counts for little and the whole administration is a f a i l u r e . " 1 T h e man power of a force therefore outranks every other asset in importance ; buildings, equipment, regulations, and procedure are insignificant in comparison. T h e head of a police department today is the manager of a huge concern. If the concern is to have policies at all, and carry them out, it is he who must be able to plan them and direct their execution. He has to be able to handle the various bureaus of his organization in such a w a y that they will work harmoniously together. If his department is to keep up with the criminal, the commissioner must be as alert to improvements in police technique as a department store manager is to better methods of merchandising. Frequently his department must deal with clashes arising out of racial or economic divergences of interest; and if he is to deal with them effectively, and with due regard for the legal rights of all concerned, he must have a background of culture f a r more extensive than mere police technique. His business is with the public, and he must, therefore, be constantly able to rally public opinion behind him. His instruments are a body of adult men who must have implicit confidence in his judgment and fairness, if he is to call forth their best efforts. B u t the very nature of police work demands that in the rank and file, too, the highest possible standards of personnel be maintained. As Harrison wrote: There are few vocations which, if adequately performed, require so much of a man—physical courage, tact, disciplined temper, good judgment, alertness of observation, and specialized knowledge of law and procedure. The public, accustomed to seeing the policeman patrolling his beat with apparently little to do, is likely to lose sight of the high qualities which he may have to call into play at a moment's notice. If he is confronted by a dangerous situation which persons of caution would be inclined to avoid, it is his duty to enter into the thick of it. It may be a family row, a street fight, the pursuit of a desperate criminal, investigation of a burglary alarm, or a serious accident. An alarm is the policeman's cue to go into action. That he is hired to assume these burdens does not detract from the superior qualities which he is called upon to display. He must keep a cool head and take decisive action when trouble arises. Not only physical courage but strong moral fiber is required of the policeman. He is at war with thieves, fences, and sharpers of every sort who will 'Ibid., p. 306.

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CRIME AND THE COMMUNITY

stop at nothing to avoid interference by the police. These underworld characters are skilled in every form of trickery and deception needed to compromise a weak policeman. Gamblers, prostitutes, narcotic peddlers, and bootleggers are ever on the alert to tempt him. They do not always resort to the cruder forms of bribery, for they have gained high skill in employing subterfuges and in devising ways to bring the unwary officer under obligation. But physical courage and moral stamina are not enough. A policeman may be courageous in the face of danger, or have strong defenses against corrupting influence, and yet be too indolent or too ignorant to perform many kinds of work which make no demands on his more admirable qualities. Moreover, tact and resourcefulness are not often balanced with decisiveness in any person's makeup. Yet tact is a cardinal requirement in the policeman. The handling of quarrelsome or difficult persons, delinquent children, and handicapped defectives of every sort demands sympathetic understanding and abundant common sense. All of these qualities must be fused in each policeman. Take for example a police division which has a quota of one hundred patrolmen. It is not enough that twenty of these men be courageous only, that twenty have high moral calibre, that twenty be energetic and resourceful, that twenty have an abundance of tact, and that twenty possess an extensive knowledge of law and the procedure of criminal courts. It is not possible, except within very narrow limits, to classify members of the force according to their special gifts so that the courageous men may be assigned to deeds of daring, the tactful ones to delicate situations, and so on. A single day's work on a patrol beat may, and often does, require the exercise of all these qualities. 1 B u t neither among our police administrators nor among the rank and file is fitness the rule. Police leaders are partisan politicians, rather than experts who b y their previous experience, training, character, and ability give promise of managing competently the highly intricate department for which they are responsible. N o r do their subordinates measure up to their tasks. Police department s u r v e y s since the Cleveland s u r v e y of 1922 h a v e pointed out that policemen in general have less than average education and intelligence; that they are ill trained and poorly disciplined, and get their promotions as well as their original appointments b y politics rather than merit despite the protection of civil service; that they are frequently too old to be physically fit; and that they are often corrupt. 2 T h e unsatisfactory caliber of police administrators has several causes. In the first place, in contradistinction to European cities, American Harrison, op. cit., pp. 28-29. of Inquiry on Public Service Personnel, Minutes oj Evidence, testimony of Professor August Vollmer, Nov. 15, 1934. New York, 1935. 1

2 Commission

pp. 462 B.,

POLICE A D M I N I S T R A T I O N

235

municipalities have no body of trained men well experienced in public administration upon whom to draw. The large cities of European countries draw their police heads from men who have devoted their lives to the management of public departments, and the smaller cities take men who have already had some experience in public business and intend to devote the rest of their lives to the public service. B u t the conditions of political life in America make a career of public administration impossible. A s soon as a position entails any high degree of responsibility, advancement to it depends not upon merit but upon the favor of some elective official or the ballot box itself. A s a consequence, American cities have had to take their police commissioners either from the rank and file of the police departments or from a wide variety of civilian pursuits. Fosdick found that the chances are against the finding of a suitable leader in the ranks of the police force. The officer who has walked his " b e a t " as a patrolman, investigated crime as a detective, and managed the technical routine of station house activity as lieutenant or captain, is not fitted by this experience to administer the complex affairs of a large police department.1 Chicago in twenty-five years had eleven different commissioners, of whom nine were promoted from the ranks. " M o s t of the men thus promoted retired after a disastrous and often inglorious experience, for the reason that from the very nature of their training they could not measure up to the t a s k . " 2 B u t experience with civilian administrators has been little better. Vollmer speaks of the belief generally held that any person who has average intelligence and is honest can satisfactorily discharge the duties of a police executive. As an illustration, a few years ago the mayor of Indianapolis was called upon to introduce the police chief of that city to an assemblage of police chiefs during one of their conferences. In the course of his introductory remarks the mayor said " I know that my man is going to be a good chief because he has been my tailor for 20 years. He knows how to make good clothes; he ought to be a good chief. . . ." 3 E v e r y occupation and profession has been drawn upon to produce a Moses to lead the police out of the wilderness. Whether they come from the rank and file or from wholly extraneous civilian occupations, the police administrators in this country seldom 1 2 Fosdick, op. cit., p. 220. Ibid., pp. 221-222. »Vollmer, Monroe, and Garrett, op. cit., pp. 20-2:.

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have opportunity to do more than get acquainted with their job. " T o become an expert, such as the head of any organization ought to be, takes several years," wrote Fuld, " s o that it is frequently the case that it takes the police commissioner his entire term of office to learn the details of the business, and then when he is an expert he is turned out of office." 1 Chicago had fourteen chiefs in 30 years. Five hundred and seventy-five cities of over 10,000 population reported the average term of office as 4.28 years. But the average tenure of office for police heads in cities of 500,000 or over is a fraction over two years. 2 New Y o r k had five different commissioners between January 1, 1926, and January 1, 1935. T h e results of the short tenure are fatal not only for the possibilities of any expert direction of police forces but for the morale of the force itself. Vollmer writes: A " t i l t the l i d " policy by one head, followed shortly b y a "close d o w n " order issued by the next chief, and this in turn by a " w i d e o p e n " policy order of the third chief, is quite enough to wreck any police organization. T h e policeman who obeyed the order of the first chief will be punished by the second; those who obeyed the order of the second will certainly be punished by the third, and so on until the department is broken up into a series of cliques and these cliques spend most of their time fighting each other instead of fighting crooks. W i t h nearly every change in the police head there follows the inevitable "police s h a k e - u p " with the result that the policemen who have become familiar with one district are transferred to another. . . . When transfers are unjustified, or are made for some sinister purpose, confidence in the administration is destroyed and police morale is shattered. 3

The lack of trained administrators, the limited tenure which makes it almost impossible for them to gain the experience they need to become expert, has its roots in American political ideals and practices. Police work is an expert service, yet its leadership depends upon the outcome of popular election, and by virtue of the spoils system or the democratic principle of rotation in office this leadership is almost inevitably changed with each change in political regime. In fact, political pressure upon the police commissioner is unending, and it is not infrequent to see a succession of commissioners during one regime. What American police departments policemen falls far short of Harrison's for their job. T h e Wickersham report "the great majority of police are not 1

get in the w a y of material for description of the requirements on police asserted bluntly that suited either by temperament,

Leonhard Felix Fuld, Police Administration, p. 440. N e w Y o r k , 1909. Monroe, and Garrett, op. cit., p. Si»Ibid., pp. 34-35.

2 Vollmer,

POLICE A D M I N I S T R A T I O N

237

training or education, for their position." 1 T h e failure to obtain suitable material for police forces is attributable to unjustifiable legal restrictions imposed by the legislatures, to politics, and to defective methods of selection. Instead of making the field of eligibles as wide as possible, as do the police officials of European countries, American cities limit application for entry into police forces to residents of the city in which the applicants are to serve. Europe prefers to take men from sections of the country other than those in which they are to serve so that policemen will be free from previous social and political ties. But in New Y o r k State 28 cities require a one-year residence qualification, 12 require two years, one or two require three years. In the small cities and towns throughout the country, almost without exception, residence of a definite and frequently rather long period is an absolute requirement for appointment. B y contrast, Berkeley, California, has adopted the method of sending out letters to B a y District Army and Marine Corps, professional employment bureaus, fraternal employment agencies, high schools, business colleges, and junior colleges and universities within a 330-mile radius. T h e city even advertises for applicants in the newspapers. Political influence is frequently the chief qualification for appointment to the police force. Bruce Smith noted that when Cincinnati employed the quota system [under a bi-partisan police board] the number of republican aspirants for appointment was always more numerous than the number of democratic aspirants, owing to the overwhelming numerical superiority of the republican party in that city. It was not long before young aspirants, of republican persuasion, were enrolling with the democratic party in order that they might qualify for the much shorter democratic "eligible list," and hence more quickly and easily secure appointment to the police force. 2

Fosdick found in 1920 that where there were no civil service requirements, the forces were almost wholly political. In Indianapolis, at the time, the force was made so by l a w : " T h e force shall be as nearly as possible equally divided politically," runs the statute. Half the force, therefore, was Republican and half Democratic through all the ranks. 3 In Kansas City, in 1921, the board effected the wholesale dismissal of about 350 men, largely for partisan reasons. " I n the course of that year alone, over six hundred men were successively recruited to fill the i V o l l m e r , M o n r o e , and Garrett, op. cit., p. 58. 2

The Annals of the American

Academy

b e r , I Q 2 9 ) , p . 5. 3Fosdick,

op. cit., pp. 272-273.

0} Political

and Social Science,

V o l . 146 ( N o v e m -

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places thus vacated. It is a record probably without parallel in the recent annals of any American police department." 1 Civil Service Commissions do not altogether eliminate partisan and political considerations in the selection of recruits. The New York Crime Commission survey of police noted that The police chief of one of the larger cities of the state admits that the civil service commission in his community is used for political purposes and that the best police applicants never lead the eligible list. In another city the ward leaders control the selection of police recruits and the places are parcelled out according to a fixed ratio for each ward. . . . The plain fact is that both civil service commissions and police administrators are appointed by and subject to the same municipal authority. If the city government is disposed to allow partisan considerations to run riot that end can be secured almost as easily with civil service control as without it. There is nowhere any one formula or statutory clause which will serve to prevent political manipulation.2 T h i s same situation w a s encountered in C h i c a g o . T h e Citizens' Police Committee found in 1929 that the conditions governing the appointment of civil service commissioners b y the m a y o r put the whole civil service at the disposal of political interests. 3 Still other, non-political factors mar the effectiveness of Civil Service. T h e age limits for entrance into the force are faulty. In E n g l a n d and Scotland the minimum age is 20 and the maximum varies from 25 in London to 28 in Glasgow.

In the United States the greatest variety

prevails. T h e minimum runs from 21 to 25, and the maximum from 28 to 50. T h e high age limit permits men to enter police service w h o are too old to m a k e good police officers. In one force of 588 men 280 were over 30 years of age at their first appointment, 170 were over 40, and 2 men were actually appointed at the age of 74 and 78 years respectively. Of the 1,920 appointees in another large city, onequarter of those appointed were over 30. Among the smaller police forces age is a negligible factor. One survey disclosed that 35 per cent of the men appointed after the election of a sheriff were 40 years or over in age and never had had any police experience.4 In K a n s a s C i t y and St. Joseph authorities persistently accept recruits above the age of forty. It is inevitable that the personnel thus secured should be characterized b y an unduly large proportion of the shiftless, Missouri Association for Criminal Justice, Missouri Crime Survey, p. 30. New Y o r k , 1926. New Y o r k Crime Commission, 1927 Report, p. 208. 3 Chicago Police Problems, pp. 48-50. *Vollmer, Monroe, and Garrett, op. cit., p. 62. 1

2

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239

the unemployed, and the unemployable. A number have been appointed whose ages exceeded fifty years. When it is realized that these men had no police training or experience, " t h e conclusion is inevitable that they are practically without value to the department." 1 The physical examination has too large an influence upon the result of the civil service test, though "there seems little reason for allowing unusual physical strength, muscular development, and agility to make up for lack of intelligence." 2 Methods of examination are faulty. In Boston, for example, the examination is held on a manual of instruction prepared by the Civil Service Commission. This gives a brief summary of the law of arrest, lists records and forms for recording crimes used in the bureau of criminal investigation, defines forty or more crimes and a batch of legal terms. The manual of instruction is so badly prepared that it utterly fails in its object of enabling the applicant to acquire some knowledge of police work in advance of appointment. Experienced police educators, moreover, declare that self-instruction, in advance of police training under proper supervision, is distinctly harmful. Much of what has been mislearned will have to be unlearned. Methods for the investigation of character, which should be the most careful and significant part of the selective process, are particularly defective. In Chicago the chief reliance, the 1929 inquiry found, was placed upon securing character references by mail from three former employers mentioned by the candidate. In Boston both the police and civil service authorities have been too lenient as regards the arrest records of candidates. As a result "men whose previous conduct may be seriously questioned have been appointed. . . ." 3 In Missouri, too, the test of character is regarded as a purely formal matter, and even so serious a question as the police record of an applicant is either neglected or given no weight. In Kansas City the investigation of applicants was at one time turned over to a commercial credit agency which bore no public responsibility whatsoever for its findings.4 Professor August Vollmer, the noted former police chief of Berkeley, California, who has surveyed over 300 police departments, testified before the Commission of Inquiry on Public Service Personnel on November 15, 1934, that the character examination of applicants as conducted by Civil Service is perfunctory. " T h i s phase of the examination is the most important," he said, "and yet the least attention is given to it." 5 1

Missouri Crime Survey, p. 31. Crime Survey, p. 32.

1Missouri

¡'Harrison, op. cit., p. 32. 'Harrison, op. cit., p. 48. 6 Minutes of Evidence, p. 462.

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4. Training D e f e c t i v e methods of selecting policemen might be ameliorated if adequate methods of training policemen existed.

M e n w h o could not

measure up to the standards of the training school could be weeded out, and the rest given a thorough preparation for the performance of the policeman's job.

B u t opportunities have been missed in the field of

police training as elsewhere. In most American jurisdictions there are n o methods of training. In 225 towns of fewer than 10,000 inhabitants visited personally b y M o n r o e of the W i c k e r s h a m Commission, there w a s absolutely nothing done which by any stretch of the imagination could be considered as police training. Not one of the cities had experience as a requirement of admission to the force ; 216 had never inquired if the prospective policeman could handle a gun, and 185 sent the man out on duty with no instruction and even without the aid and advice of an experienced man. Forty cities placed the beginner with an older man from periods of a night to one week. 1 B r i e f l y , then, in the counties, towns, and hamlets of this class, it must be stated that assumption of badge, revolver, and the authority of the law has as a prerequisite no training or police e x p e r i e n c e — i n

fact

nothing. Questionnaires returned from 383 cities of 10,000 or over revealed that 78 (about 20 per cent) possessed some method of school training. . . N o t more than 15 gave courses which could be considered to q u a l i f y the recruit as the possessor of a proper background for efficient work."2 A m o n g these few cities which do provide training for their appointees, the greatest variety of practice prevails. In some training is conducted for a few hours each w e e k over a period of a month or so. Such is the case in Boston. F o r thirty w e e k d a y s , the period of training, instruction begins at 8:30 and ends at 11 ¡30 A. M. F r o m 2 until 6 P. M. the recruits do student patrol in c o m p a n y with experienced patrolmen in the districts to which they will be assigned upon completion of their training period. B u t there is no correlation between classroom w o r k and student patrol unless it occurs in the police student's own mind unaided.

The

recruit is subjected in the classroom to a somewhat more detailed cramming process than that involved in his study of the C i v i l Service C o m 1 VolImer, 2

Monroe, and Garrett, op. cit., p. 70. Ibid., p. 71.

POLICE A D M I N I S T R A T I O N

241

mission's manual preparatory to examination. The captain-drillmaster delivers twenty-nine lectures on twenty-nine days : the first six on police rules and regulations ; the next eighteen on the General Laws of Massachusetts; and then one lecture each on revised ordinances, traffic regulations, motor vehicles, liquor laws, right of arrest and other legal processes. One need only glance at the above list to realize how bewildered the former chauffeurs, clerks, and laborers must be when so many and varied legal discussions are hurled at them in rapid succession. It is not unreasonable to suppose that nine tenths of it goes in one ear and out the other.1 In a number of cities, such as New Y o r k , Detroit, Louisville, Cincinnati, and Berkeley, police schools and police training are at a much higher level than in Boston. The Berkeley school was the first in this country to approach the standards of police training maintained abroad. T h e course is in the nature of an evening school, classes meeting three nights a week for two hours. The course, covering two years, is divided into seven sections. The first concerns the first elements of the policeman's job : physical training, study of city ordinances, the care and handling of weapons, local geography, and the like. The second concerns criminal law and procedure, its history, its general principles, its specific nature in the state of California, the laws of arrest, and the rules of evidence. The third is a thorough course in the principles of criminal identification : fingerprinting, handwriting, photography, portrait parlé, and modus operandi. The fourth section concerns police methods and procedure in regard to patrol, traffic, the handling of vagabonds and suspicious persons, of crowds, parades, assemblies, riots, and strikes. The fifth section is devoted to the methods of general investigation : the examination of witnesses, the inspection of localities, the use of experts, the practices of professional criminals. The sixth section is entitled police psychiatry, and takes up, in turn, mental defects and their relation to crime, physical diseases and their relation to crime, and social factors in crime. The final section of the course is devoted to police organization and administration : it discusses the powers and limitations of the Berkeley police department in relation to the federal and state constitutions, and the city charter and council regulations. It describes the distribution of the force, the number and types of posts, bureaus, special duties, and special details and squads. It discusses questions of crime prevention : juvenile delinquency, potential delinquents, co1

Harrison, op. cit., p. 73.

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ordinated effort to prevent crime, and education. It discusses traffic control also: enforcement, engineering, and education. No one of the large cities in the United States has anything approximating the Berkeley system, yet they should have. A man of sound mind and body who has gone through such a course is something more than a pavement pounder. He knows not only the technicalities but the social implications of his trade; not only its mechanics but its culture. He is fit to be a guardian of the law, a custodian of the life and property of his fellow citizens. T h u s equipped he may respect himself, and he deserves the respect of his fellow citizens. For the fact that the police of this country are not so trained the men themselves cannot be blamed. T h e condition is attributable rather to short-sighted administrators, to self-seeking political office-holders, and, in the last analysis, to the communities themselves, which remain in ignorance of the demands of the policeman's job or are too apathetic to insist upon office-holders and administrators who will give proper attention to the needs of the police service. T h e developments of the Berkeley school, and of the schools in N e w York, Louisville, Cincinnati, and Detroit, all show that at last the police educators are beginning to be alive to their duties and opportunities. Universities, too, are beginning to show an interest in professionalizing the policeman's task. In 1929 the University of Chicago established the first university training course. It laid great emphasis upon the social aspect of the policeman's j o b ; it presented the developments in the field of criminology. It discussed the mechanical side of police work, the fundamentals of patrol duty, the plan of special details, the organization of the departments, and the correlated responsibilities of the various bureaus. In Northwestern University an intensive four weeks' course, designed primarily for experienced policemen, covers some sixty phases of their work. B y 1931 San Jose State Teachers College in California was offering a two-year course, covering in more detail most of the subjects taken up at the Berkeley school, but adding courses in criminology, psychology, and psychiatry, and such electives as foreign languages, political sciences, and American history.

5. Discipline In work such as police are called upon to do, the necessity for good standards of personal and professional conduct and for strong and just methods of punishing derelictions cannot be too strongly emphasized,

POLICE A D M I N I S T R A T I O N

243

Yet methods of discipline in America not only seriously impair attempts to keep a good standard of conduct in the force, but also seriously abridge the responsibilities and powers of the administrative head. Almost always a policeman suffering a major measure of discipline has the right of appeal to the Civil Service Commission or to the courts against the decision of the administrator. Whatever may be said for these checks upon disciplinary proceedings of the administrator by independent authorities as serving to prevent arbitrary removals and as guaranteeing security of tenure, they have unfortunately served to dull the edge of official discipline. 1 In many cases the Civil Service Commission goes to the extreme in safeguarding a policeman against unjust disciplinary action. Civil Service Commissions, being civilian bodies, have more lenient standards than those required by the necessities of police discipline. Intoxication, for example, may be more amusing than serious in civilian life. But in a policeman on duty intoxication is a serious matter, since it renders him worse than useless. The London police force long ago adopted the rule that intoxication while on duty brings immediate dismissal. Yet of 23 cases of intoxication while on duty in Cleveland during the year of the survey, only four resulted in dismissal by the Civil Service Commission. 2 Knowledge that he may not be upheld on appeal to the independent tribunal which has the right to review disciplinary actions causes a chief of police to hesitate in imposing disciplinary measures. As the New York Crime Commission put it, " h e knows either by report or from actual experience that it takes but a single striking reversal of his judgment to impair not only his own prestige and official control, but also the whole day-to-day discipline of the police force." 3 It is no wonder, then, that the Cleveland survey observed that the members of the police force will pay only so much obedience to the chief as civil service requires of them.4 Fosdick, in the same vein, pointed out that the attempt to protect the force from abuse of authority by officials has reached the stage of entrenching negligence and destroying responsible leadership of the force. The chief of police frequently finds it impossible to remove delinquent members of the force because of conflicts between the appellate and the police officials. 6 ! N e w Y o r k Crime Commission, 1 9 2 7 Report, p. 2 1 0 . Cleveland Foundation, Survey 0) Criminal Justice m Cleveland,

2

1922. 3

N e w Y o r k Crime Commission, 1927 Report, p. 2 1 0 . * Criminal Justice in Cleveland, p. 52. 5 Fosdick, op. cit., p. 286.

pp. 48-49. Cleveland,

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CRIME AND THE

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T o improve the conditions described above, the Cleveland survey recommended that full power of disciplinary action be vested in the director of police, assisted by a trial board made up of officers in the professional force.1 This in effect is the system in Boston. For many years past the commissioner has made a practice of appointing a board of three captains to serve as a trial board in hearing charges against members of subordinate ranks. . . . The police commissioner retains undivided authority; he may hear a trial without the board, or may ignore or modify its findings. As a matter of practice the commissioner almost always refers trials to the board, and seldom fails to approve its findings; there are, however, a sufficient number of modifications by him to indicate that his review is not a perfunctory procedure. The fact that the number of modifications is not greater testifies to the high quality of work performed by the trial boards. Changes in assignments to trial board service are made from time to time, but are not in exact rotation. Certain captains can be more easily spared from their commands than others. In no case does a captain sit at the trial of a member of his command.2 T h i s arrangement has w o r k e d out splendidly in Boston.

It places

responsibility for maintaining discipline where it ought to be, upon the superior officers of the police force themselves. T h e s e men are familiar with the standards of conduct which must be had in police w o r k , and are given the power to enforce their views without the interference of an outside agency.

6. Promotion Just as placing ultimate authority for disciplinary action in the civil service commission and in the courts is said to h a v e a demoralizing effect upon a police force, so the civil service s y s t e m as a means of determining promotion has h a r m f u l effects. B e c a u s e its conception of police needs is vague and its tests are f a u l t y , the civil service commission fails to select those w h o are good leaders and w o r t h y of promotion.

It diminishes the administrative head's responsibility for the

w o r k of his force, since he has little or no authority in choosing his subordinates. It curtails his p o w e r over individual members of the force, since his appraisal of their w o r k has no weight in determining whether they receive the rewards of promotion. W h e r e v e r the civil service system is used for promotions it has been installed with the same p u r p o s e : 1

Criminal Justice in Cleveland, pp. 53-54.

from the fear that the power to 2 Harrison,

op. cit., pp. 81-82.

POLICE

ADMINISTRATION

245

promote officers would be misused and that only those officials in favor with the politicians would be promoted. But that Civil Service has not inevitably eliminated politics is the evidence of the Citizens' Police Committee in Chicago, and of the Massachusetts Special Crime Commission. T h e latter conducted a brief investigation of police practice, just after a particularly unsavory scandal over civil-service promotional examinations. It recommended greater control of the Commissioner over promotions, stating in justification : W e must remember that the existing method of promotion has evidently not provided sufficient guarantee that promotion will be based upon merit alone, and that under the present system police officers commonly feel that faithful performance of duty and meritorious police work are not given due recognition in the making of promotions. 1

In Chicago, on January 7, 1931, Chief Justice John P. McGoorty of the Criminal Court of Cook County charged a special grand jury, called to investigate the matter of promotions in the police department, in these words: It is a matter of common knowledge that for many years there has been a fixed scale of prices for advancement in the police department, according to the rank and salary of the office sought. A determined and persistent effort by you should disclose that promotions have thus been paid for and bestowed by vice lords upon those thus promoted, like feudal barons conferring titles and emoluments upon their trusted vassals. Sums paid have been determined by the amount of profits derived from criminal operations in certain districts.

But corruption is not the only factor which vitiates civil service methods in promotion. In Chicago the basis of the Civil Service Commission's grading of candidates for promotion consisted in a system of efficiency reports which has lapsed; a written examination on police duties which does not tend to select leaders; a seniority rule which favors senility and an arbitrary preference for veterans which carries heavy weight. . . .

In the course of the whole process the police commissioner who

makes the formal promotion and who must look to the appointee for constructive results, has but a small part to play. 2

In Boston, too, the Civil Service Commission's promotional examinations disclose but little of a man's capacity or knowledge. T h e y reveal 1 Massachusetts Special Crime Commission Report, p. 103. Senate Document No. 125, December, 1933. 2Chicago Police Problems, p. 66.

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CRIME A N D THE COMMUNITY

nothing as to the personal qualities most desired in superior officers. The promotional machinery lacks "the vital element of professional judgment based on the all-important factor of observation and evaluation of a man's actual competence and demonstrated ability to fulfill the specific duties which promotion would require of him." 1 This is precisely the factor which makes for the superiority of European systems of promotion. In London the candidate for sergeant must have served five years as constable and must be recommended for the promotional examinations b y his division superintendent. T h e first step in the investigation of a candidate's fitness for promotion is a qualifying civil-service examination of general education. This examination is in no sense competitive and carries no weight in the final determination. Like the recommendation from his division superintendent, it merely determines whether a candidate may be considered for promotion. Those passing the qualifying examination are given a searching examination on police duties by professional police officers. T h e Commissioner, his assistants, and the superintendents of divisions make out a list of those who have passed, but promotion does not necessarily follow in order of marks. T h u s the officers who will be directing the men in their new duties take active part in testing, rating, and choosing. The whole process guarantees officers of at least the necessary minimum education, with good knowledge of police duties, who are fitted for their new duties in the judgment of the experienced police officers. In Berlin and Vienna the candidate must take a vigorous training school course between the time of the superior officer's recommendation for promotion and the examination for promotion.

7 .Patrol The defects of administrative organization and personnel, from commissioner right down through the rank and file, naturally find expression in the unsatisfactory manner in which the primary police functions are performed in the United States. Street patrol by the uniformed force is recognized as " t h e principal method of discouraging crime," 2 yet the numbers as well as the proportion of the force employed in this important function have been rapidly diminishing. T h e boundaries of precincts, divisions, and districts, and the routes of beats have remained unchanged decade after decade in city after city, although the character 'Harrison, op. cit., p. 9t.

-Harrison, op. cit., p. 94.

POLICE A D M I N I S T R A T I O N

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of various sections of the city may have altered completely, and with it the crime problem to be met.

Communication systems are generally

inadequate for their purposes of supervision over the men on the beat and of reaching a policeman at the instant of an emergency.

New

methods of patrol developed b y students both here and abroad in order to supplement or replace foot patrol h a v e not been widely adopted, though survey a f t e r survey recommends them.

Here, as elsewhere in

police and public administration generally, the knowledge of how to effect improvement is at hand, b u t with unintelligent or unenergetic administrators, or apathetic public opinion, there is no incentive to a p p l y it in the face of the steady pressure of those w h o profit b y inefficient police methods. " I n city after city . . ." commented M r . Smith, " i t is rare indeed that more than one fourth of the uniformed force is actually available for patrol duty. T h i s means that under the prevailing three-platoon laws, only about one t w e l f t h of the total force is actually on patrol at any given time. stretched to the breaking point." 1

T h e thin blue line has been

In Buffalo, in 1925, out of a grand

total of 1162 police employees only about 100 patrolmen were available for patrol duty at a given time. T h e y were responsible for patrolling over 700 miles of streets. T h e N e w Y o r k C r i m e Commission stated that this situation was not unusual in the cities of the state. M a n y foot patrol beats in N e w Y o r k contain as m a n y as twenty miles of streets, all of which require protection. 2

In C h i c a g o , of a total force of 6712

men only 750 were available for the daily patrol needs of an urban area of 2 1 1 square miles, so that there were only 250 men for each of the three shifts.

T h e committee found instances when only one

foot patrolman actually stepped out of the station house to begin an eight-hour tour. 3 B r u c e Smith attributed the dispersion to t w o things: the reluctance of municipal councils to authorize increases in numerical strength because of the expense involved, and at the same time the increased demand for new police services. The largest and most universal of these new demands has been created by the traffic problem. But there are others which also are highly important. Patrolmen are detailed to the offices and the homes of city officials, to dance halls, ball parks, amusement centers, industrial plants, and many other public 1 The Annals of the American Academy of Political and Social Science, Vol. 146 (November, 1929),p. 23. 2 N e w Y o r k Crime Commission, 1927 Report, p. 218. 3Chicago Police Problems, p. 87.

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C R I M E AND T H E C O M M U N I T Y

and private places. Sometimes it seems as though everybody "with influence" were striving to secure the gratuitous services of one or more policemen."* In Boston, Harrison determined that the department had not suffered the common dispersion of the patrol force, but, in common with most cities of the United States, Boston gathered no exact data which would enable it to estimate the number of men required for the protection of life and property. The number [of patrol routes] largely determines the number of patrolmen required. . . . In most divisions in Boston not a single change had been made in route boundaries for many years; with few exceptions they have remained the same as long as the oldest officers can remember. The city has changed, the character of neighborhoods has undergone modification, the racial composition of many of the districts has altered but patrol methods have remained substantially as they were a quarter of a century ago.2 In Kansas City too, although its population doubled in twenty years, its scheme of patrol distribution remained practically the same. T h e most extensive changes in the character of particular districts brought no revision of district boundaries and beat lines.' There are, however, at least two instances in which some intelligence has been applied to the delimitation of patrol boundaries. In N e w Y o r k , Col. Arthur Woods as Commissioner, instead of accepting the existing system of patrol applying equally to all parts of the city, ordered that " a n exhaustive study be made of each locality, and a system of patrol devised to meet the needs of that particular district." 4 During August Vollmer's term of office as Chief of Police in Berkeley, California, every patrolman in the department was given a year in which to analyze his beat, determine the amount of time needed to patrol it, and make a written report. Only through such detailed job analysis is it possible to make the most effective use of foot patrol.

8. Detection of Crime Good detective work is an indispensable necessity for every police force. Crimes will be committed, no matter how effective our methods of prevention. Most criminals are not taken in the act, but disappear 1

The Annals of the American Academy of Political and Social Science, V o l . 146, p. 23. Harrison, op. cit., p. 95. 3 Missouri Crime Survey, p. 4 1 . 4 Report of the Police Department, New Y o r k City, 1 9 1 4 - 1 9 1 7 , p. 44.

2

POLICE

249

ADMINISTRATION*

after the commission of their crimes. It becomes the duty of the detective unit to track these criminals down and bring them to the bar of justice. The essentials of a good detective bureau are clearly laid down b y Chicago Police Problems. These are realized whenever a sufficient number of persons, selected for common sense, vigor, integrity, and special aptitude, are employed under competent supervision to handle the case necessarily requiring investigation by a headquarters unit. In addition, there must be an identification division using all recognized methods known in the field. Criminal correspondence must be handled with efficient dispatch. T h e valuable aid of science and experts must be judiciously sought. An adequate reporting system must be provided in order that essential records and executive control may be assured. Suitable equipment must be available and facilities for communication must be swift and sure. Finally, the general plan of structural organization must be such that the work of the detective unit is carefully articulated with that of almost every other portion of the police force. 1

In few police forces in America are all these essentials found. Detectives are selected from members of the uniformed force. The quality of detectives is necessarily low because of the defective methods of selection and training of policemen. T h e selection of detectives suffers from another disadvantage. The comparative freedom from routine and the monotony of walking a beat makes the rank very attractive to the patrolman. If a patrolman has any political or personal influence he is strongly tempted to use it to obtain his transfer from the irksome duties of the uniformed force to the more exciting life of the detective. Since specific capacity for detective work does not necessarily accompany personal influence, the quality of work performed under such circumstances is quite likely to be inferior to that produced b y a force of men selected for their relevant qualifications. 2

It was formerly common throughout the country to select detectives b y civil service methods, but no written test could fairly divine and reveal the peculiar qualifications necessary for the work. Thus civil service tests failed to recruit an adequate personnel in the first instance, and under civil service regulations it was almost impossible to remove a detective although he may have been unfitted for his work. But individual detective ability is not the whole story in detective work. Adequate organization counts for a great deal here as in other parts of the police structure. 1

Chicago

Police

Problems,

p. 119.

2

Ibid.

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C R I M E AND T H E COMMUNITY

Every person knowing anything at all about criminals . . . [writes Matheson] knows that criminality is their "game" or profession. They follow well defined lines and therefore can be classified. . . . Criminals usually stick to their own particular line. . . . An efficient bureau must be organized in special groups or details to cope successfully with the situation. The members of the details become expert in their particular line and have a mental grasp of the situation. They can tell offhand, by reading a report, just what class of burglar is operating, and, by the process of elimination narrow the perpetrators to a limited few. 1 In most large cities the detective force is divided into a number of different details, pawnshop, retail shopping, burglary, robbery, automobile, homicide, pickpocket, etc., in order to make specialization of detective work possible. B u t it still remains vitally necessary to supervise the work of an individual detective in any one unit and to coordinate the work of the different units. Detective work puts a man peculiarly on his own. Unless there is unremitting supervision and direction from superior officers, and a constant check upon the amount of work done, little effective work is apt to be performed. Such supervision is a rare thing in America. Personnel management, [wrote the Chicago Committee] if it ever received attention, was but lightly considered. The heads of the division were too busy with their own criminal investigations to observe the needs of 520 other men, nominally their charges. Thus the counsel of matured judgment was denied when its effect could have been most far-reaching, and directing energies were devoted instead to a sincere but ill-advised investigating activity. 2 T o have good supervision there must be adequate records of investigations made, witnesses examined, clues followed up, and work done. B u t these are usually lacking. In Boston, Harrison noted, " T h e r e are no records similar to the dossiers customarily found in European departments; scanty notes recording the names of witnesses, addresses, and court appearances are all that appear in the special officer's notebook."® It is also vitally necessary that the services of the different parts of the detective force be co-ordinated with each other and with that of the rest of the department. Information that the pawnshop detail picks up in the course of its duties may be essential to the burglary or the shopping detail. Likewise the stolen car detail may have information which is ' D u n c a n Matheson, " T h e Technique of the American Detective," The Annals of the American Academy of Political and Social Science, Vol. 146 (November, 1929), pp. 2 1 6 - 2 1 7 . 2 Chicago Police Problems, p. 1 2 7 . 3 Harrison, op. cit., p. 124.

POLICE

ADMINISTRATION

251

necessary to clear up a robbery. The work of these special headquarters details must also be articulated with that of the detectives who are attached to precinct stations. Similarly the patrolman is the eyes and ears of the force, and the information that he picks up may be extremely valuable in the solution of crimes on which the detectives are working. But, vital as is co-ordination of activities, independence and conflict seem to be the rule rather than the exception. Ordinarily the relations between the uniformed force and the detectives are particularly unsatisfactory. As the Missouri Crime Survey stated, T h e ancient rivalry between the uniformed and plain-clothes forces has a substantial basis. It arises from the fact that in a given case the policeman is often the first to risk life and limb. W i t h the arrival of detectives, however, he is automatically displaced. T h e plain-clothes operative takes command of the situation and the patrolman returns to his beat. T h i s condition inspires a natural resentment, which sometimes leads to a series of retaliatory acts b y the two branches. In the maneuvers which follow, the public functions of these officers are lost sight of. Their energies are directed at causing each other confusion, discomfort, and discouragement. 1

Few of the European developments in the scientific identification of criminals and the investigation of crimes have obtained a foothold in America. A t the time Fosdick made his investigations, American cities were so backward as to be inaugurating Bertillon anthropometric systems of criminal identification at the very time when European cities, convinced that dactyloscopy was far more more efficient, were discarding Bertillon as superfluous. 2 Fingerprinting is today recognized as good practice in American police departments, though still it is not utilized to its fullest extent. In Chicago in 1929, for instance, out of 15,159 arrests on charges of felony only 5531 were brought to police headquarters for identification. Bruce Smith in 1934 reported some progress in the use of fingerprinting.3 It is reasonable to expect that all persons charged with felony should be brought to the bureau for fingerprinting, especially in view of the fact that over 40 per cent of such prisoners are identified as old offenders. Harrison in his Boston survey criticized the force for failing to fingerprint minor offenders as a means of discovering whether they were wanted locally or elsewhere for more serious crimes. 4 Missouri Crime Survey, p. 40; N e w Y o r k Crime Commission, 1937 Report, p. 223. Fosdick, op. cit., p. 349. 3 Chicago Police Problems: An Approach to their Solution. Institute of Public Administration, New Y o r k , 1935, p. 34. •Harrison, op. cit., p. 155. 1

2

252

CRIME AND THE COMMUNITY

N o r are many American cities making use of modus operandi methods of identification. This system is based on the fact that a criminal may be classified and later apprehended by the manner in which he works. Every criminal leaves clues to his personality and his working methods at the scene of the crime. N o two individuals work in an identical fashion. Nor does any one work without leaving some trace. T h e apparent lack of clues is in itself a description. B y employing the modus operandi system, police officers are able to select the records of individuals who have committed crimes similar to the one under investigation. Photographs of the suspects are immediately submitted for identification to any persons who may have seen the offender. 1 Y e t , despite the demonstrated value of modus operandi methods of identification abroad, American departments—through inertia or lack of intelligence—have failed to utilize them. American police departments have also been especially backward in the establishment of scientific laboratories for aid in criminal investigation. In Chicago, where private philanthropy supplied a scientific crime detection laboratory at Northwestern University, its aid is seldom sought, and then frequently too late to be of the greatest value. B y 1937, Detroit, Los Angeles, Cleveland, New Y o r k , San Francisco, and St. Louis had begun to develop laboratories. T h e value of science in criminal investigation has been brought forcibly to the attention of the public by the revelation of the two years of painstaking work on the Lindbergh kidnaping. Handwriting experts were required to analyze the ransom notes; chemists examined the ransom bills as they came in, and determined from the analysis of particles clinging to them the type of man who was passing them; other analysts traced the wood of the kidnap ladder; and so on. European police departments have been applying scientific methods in routine investigations for a long time. In the United States, however, the application of scientific aids to criminal investigation is neither well established nor widespread. BIBLIOGRAPHY The Annals

of the American

Academy

of Political

and Social

Science.

" T h e Police

and the Crime P r o b l e m . " Vol. 146 ( N o v e m b e r , 1929). C h i c a g o Police D e p a r t m e n t Annual R e p o r t , 1932. The

Citizens'

Police C o m m i t t e e .

Chicago

Police

Problems.

The

University

of

C h i c a g o Press, 1931. *The Annals of the American Academy of Political and Social Science, Vol. 146 (November, 1929), pp. 310—211.

POLICE ADMINISTRATION

253

Cleveland Foundation. Survey of Criminal Justice in Cleveland. Cleveland, 1922. Commission of Inquiry on Public Service Personnel. Minutes of Evidence. McGrawHill Book Company, Inc., New York, 1920. FOSDICK, RAYMOND B. American Police Systems. The Century Company, New York, 1920. FULD, LEONHARD FELIX. Police Administration. G. P. Putnam's Sons, New York, 1909. HARRISON, LEONARD V. Police Administration in Boston. Harvard University Press, Cambridge. 1934. Massachusetts Special Crime Commission Report. Senate Document No. 125, December, 1933. Missouri Association for Criminal Justice. Missouri Crime Survey. The Macmillan Company, New York, 1926. Reports of the New York Crime Commission. Especially 1927. V O L L M E R , A U G U S T ; MONROE, D A V I D G . ; a n d G A R R E T T , E A R L E W .

"Police Conditions

in the United States." National Commission on Law Observance and Enforcement, Report No. 14, Report on Police. Government Printing Office, Washington, D. C., I93I(See also the references listed for Chapter X.)

CHAPTER X

• T h e Prosecuting Attorney

and the Counsel for the Defense

1. The Inefficiency of the Criminal Process Waste and inefficiency characterize the process of law enforcement in the United States. Speaking in 1908, President T a f t made the oftquoted comment that the administration of criminal law in America was a disgrace to civilization. In the years since 1908 a solid factual support for this judgment has been accumulated. T h e principal body of evidence is contained in surveys of criminal justice which have been made in many different cities and states, beginning with the Cleveland survey of 1 9 2 2 . These surveys present a startling statistical picture of the operations of the agencies engaged in the enforcement of the criminal law. Hadley commented on the situation in Missouri as follows: The statistical conclusions reached by this survey have shown that for the year from October 1, 1923, to October 1, 1924, there were approximately 13,000 serious major crimes reported to the police of St. Louis. Of these 13,000 offenses only 964 resulted in criminal prosecutions. Of those prosecuted 55 were acquitted after trial by juries and 489 were released by action of the court or prosecutor, and 420 sentenced, and of those sentenced only 374 were punished. For the same offenses in Kansas City for the same year, the following results were shown. Of 5261 offenses reported to the police department there were 276 criminal prosecutions; of those prosecuted 1 1 were acquitted after trial by juries and 174 were released by action of the court or prosecutor and 91 sentenced and of those sentenced, only 76 were punished.1 T h e N e w Y o r k Crime Commission presented a similar picture of waste motion in N e w Y o r k City. . . . If we start with 100 per cent of arrests (in felony cases) 98.03% are left after the police custody has been terminated, 4 1 . 1 2 % after the preliminary hearing, 28.88% after the Grand Jury has acted, 20.57% after trial, and 15.42% are actually imprisoned or fined. Our machinery for the apprehension and trial of persons accused of crime is beginning action against five persons 1

Herbert S. Hadley, "Necessary Changes in Criminal Procedure," in Missouri Survey, p. 349

Crime

PROSECUTOR AND COUNSEL FOR DEFENSE

255

whom it does not punish for every one whom it does punish. . . . Either we are arresting many innocent people, perhaps altogether too many, or we are permitting altogether too many guilty people to escape through the meshes of our criminal procedure. 1 Further evidence of the inefficiency and wastefulness of American criminal justice m a y be seen when the records of the persistent offenders are studied. It is the professional or habitual delinquent who presents the major problem. It is to be expected that all the energy and skill of police, prosecutor, and courts will be mobilized in order to deal effectively with this type of offender. Y e t when the records of these offenders are examined it is evident that they have an extraordinary facility for 'beating the r a p . " A study in Massachusetts in 1 9 3 3 2 brings this out very clearly. E i g h t y persistent offenders were studied, twenty of whom were referred to as " p u b l i c enemies." These eighty offenders appeared before the courts from 9 to 1 0 3 times each. T h e more serious charges against them were as follows: Homicide 3 Assault and Battery . Driving under Influence 4 Larceny Robbery Breaking and Entering Larceny of Auto' . .

. .

. .

. . . .

• . • • • • •

• . • • • • •

14 103 31 324 59 154 84

Forging' Receiving Stolen Goods . . Carrying Concealed Weapons Violations of Narcotic Laws . Violations of Liquor Laws . . Miscellaneous Offenses 7 . .

T h e s e 9 1 2 charges were finally disposed of as follows : Dismissed Nol. Pros No Bill Acquittal On File Suspended Sentence Probation Prison Sentence . . . Fine No Record and Pending Total

. . . .

118 27 29 113 136 51 130 228 54 26 912

12.9 per 3.0 per 3.2 per 12.4 per 14.9 per 5.6 per 14.2 per 24.9 per 5.9 per 3.0 per

cent cent cent cent cent cent cent cent cent cent

100.0 per cent

*New York Crime Commission, 1927 Report, p. 101. 2 Massachusetts Special Crime Commission Report, pp. 22-23. 'Includes murder, manslaughter, assaults with intent to kill. 4 Includes operating to endanger. 6 Includes misappropriation of auto, using auto without authority. "Includes uttering forged instruments. 'Includes rape, abuse of female child, kidnaping, unnatural act.

. . . . .

. . . . •

12 18 16 16 71 10

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CRIME A N D THE C O M M U N I T Y

T h e outstanding fact which is evident from these tables is that in only 30.8% of all the charges was there any sentence of fine or imprisonment which actually was carried out. If we may generalize from these eighty cases, a persistent offender has almost seven chances in ten of escaping any effective penalty when charged with a serious crime. In the previous chapter we examined the basic reasons for police inefficiency in the prevention of crime and in the apprehension of offenders. In the following pages we shall attempt to determine the reasons for the inefficiency and waste in the later stages of the criminal process after the police have apprehended suspects and charged them with crime. Our attention will center on the work of prosecutors, courts, and criminal lawyers and on the procedure used in the conviction of offenders.

2. Powers and Duties of the Prosecuting

Attorney

T h e central figure in the administration of criminal justice is the public prosecutor. He is designated by different names in the various states: district attorney, prosecuting attorney, county attorney, state's attorney, etc. Whatever his designation, his functions are essentially the same. In the first place, he has some very important civil duties (for instance, collecting delinquent taxes, bringing suits to collect penalties and forfeitures, giving legal advice to the other branches of the government, etc.) which have little relation to his work in the enforcement of the criminal law. 1 With these we shall not be concerned here. In the second place, it is the duty of the district attorney to take the legal steps necessary to bring about the conviction of the large numbers of malefactors who violate the criminal laws. T h e prosecutor's powers and duties in the performance of this function make his office vital for a successful enforcement of the criminal law. The district attorney has complete discretion as to whether or not to use the machinery of his office to prosecute offenders. A police officer or a private individual may cause the arrest of a suspect and have him brought before a magistrate. T h e latter may be satisfied that the evidence against the accused is of sufficient weight to hold him for trial. But unless the district attorney files an information, that is, a formal charge against the accused (in those states that use this method of initiating prosecutions), or unless he brings the accused before the 1 See article by Earl DeLong and Newman Baker, " Powers and Duties of the Prosecuting Attorney: Quasi-Civil and Criminal," in Journal of Criminal Law and Criminology, Vol. 25 (I934-I93S). No. 1, pp. 21—53•

P R O S E C U T O R A N D C O U N S E L FOR

DEFENSE

257

G r a n d J u r y , the case will go no further. 1 If the G r a n d Jury has found an indictment or if an information has been entered against an accused, the district attorney m a y at any time refuse to proceed further.

In

some states he is required to obtain the C o u r t ' s approval for a nolle prosequi, but the C o u r t is usually so dependent upon him for information about the case that it cannot serve as a n y v e r y efficient check upon the exercise of his discretion. If the district attorney decides to prosecute, he must prepare the case for trial and at the trial present the case of the state against the accused. W h e t h e r or not a conviction will be obtained depends largely upon the energy, intelligence, and industry with which he p e r f o r m s these functions. If the accused pleads guilty or is found guilty, the recommendation of the district attorney as to the penalty carries a great deal of weight with the trial court. T h e district attorney is also frequently consulted on commutations of sentences, pardons, and paroles. T h i s assortment of powers and duties is discussed in one report as f o l l o w s : The public prosecutor has more power and discretion in processes of law enforcement than the circuit judge or any other official. A prosecutor who is lacking in ability, diligence, and energy, or who, for political or other reasons, may be inclined to temporize with the lawless elements or to yield to the pressure of special favors can do more to break down the whole machinery of criminal law administration than probably all the other agencies together.2 M a n y different capacities and qualities are needed in the performance of these functions. T h e district attorney needs to be at one and the same time a criminal investigator, a judge, a solicitor, and an advocate.

In

order to obtain convictions he must h a v e adequate evidence. H e must therefore have a sufficient understanding of the technique of criminal investigation to be able to direct police investigations and, where necessary, m a k e criminal investigations himself. W h e n the district attorney has all the evidence before him, he requires the impartiality of a judge to evaluate it and to determine whether the evidence justifies bringing the accused to trial.

If he decides to prosecute the accused, he must

prepare his case in the name of the State, as would a l a w y e r representing a private individual in a civil suit. A t the trial, in presenting and arguing his case, the district attorney p e r f o r m s the same functions as any barrister or trial l a w y e r acting on behalf of a client. 1 Fourteen states provide that the prosecutor must file a written statement with the court setting forth his reasons for his failure to take action, but it is very doubtful whether the provision is an appreciable check upon the prosecutor's discretion anywhere. 2 Missouri Crime Survey, p. 159.

258

CRIME AND THE COMMUNITY

3. The Election of the

Prosecutor

The importance of the prosecutor's office for the administration of criminal justice and the variety of the functions which it performs would seem to require that special efforts be made to obtain an honest and competent personnel. But the usual patterns of American political life have been followed in the methods of selecting district attorneys and their assistants. The same amateur administration is therefore obtained in the prosecutor's office as in other governmental departments. Almost universally in this country the prosecutor is elected locally, by county or district, 1 to serve for a short term, two to four years being the general rule.2 In Missouri, where a two-year term is provided by law, half the prosecutors serve but one term; the larger portion of the rest are re-elected only once, serving but four years; and a second re-election, giving six years of continuous service, is comparatively rare.3 T h e salaries paid to prosecutors, except in the larger urban centers, are usually not enough to attract first-class experienced lawyers. The standards fixed for the office by law are very low. " In practically the entire country, any attorney who is practising or attempting to practise, however inexperienced or incompetent he may be, is eligible to hold the office of prosecuting attorney for his locality." 4 Usually the prosecutor's office is filled by the younger and more inexperienced members of the bar. 6 The office is rarely, if ever, considered an end in itself. It is a stepping stone to a higher political office or to a more lucrative private practice. Election of the prosecutor by popular vote has the unfortunate effect of putting the office deep into politics. W e have seen in a prior chapter that criminals and corrupt political machines work very closely together in many of our large urban centers. This connection is a mutually profitable arrangement. The political machine receives support in its election campaigns, contributions for its campaign treasury, and services of various kinds from the criminal. The criminal receives from the 1 Prosecutors arc elected in all b u t five states. E a r l D e L o n g and N e w m a n B a k e r , " T h e Prosecuting A t t o r n e y , " Journal of Criminal Law and Criminology, V o l . 23 ( 1 9 3 3 ) , p. 935. 2 I n t w e n t y states the prosecutor is chosen for a terra of only t w o years, in t w e n t y others for four years. N e w Y o r k provides a t h r e e - y e a r term. (Ibid.) 3Missouri

Crime Survey, p. 1 3 1 . D e L o n g and Baker, op. cit., p. 939. 5 " M o s t of the prosecuting a t t o r n e y s in this state are y o u n g men, a good m a n y of t h e m are inexperienced m e n . " Indiana Conference on Observance and Enforcement of Lavr, p. 64. " T h e office of prosecuting a t t o r n e y is s o u g h t b y the y o u n g e r members of the b a r . " Missouri Crime Survey, p. 131. C o m p a r e Illinois Crime Survey, p. 251, which f o u n d the m e d i a n age to be 41. 4

PROSECUTOR AND COUNSEL FOR DEFENSE

259

political machine protection for his illegal, parasitical activities. Through the prosecutor's large power over criminal cases, embarrassing prosecutions may be quashed; offenders enjoying the blessing of the political machine may be taken care of. Under these circumstances honesty, independence, energy, and ability are not desired in the prosecutor's office. The prosecutor must be one who has already given proofs of his subservience to the political leader. Otherwise he cannot get the nomination. And without the nomination of one of the regular party machines there is little hope that a candidate for the office of district attorney will be elected in our urban centers. The district attorney can run his office according to the dictates of the local political machine because he is practically free from any routine supervision by a central state official. Although he is a state officer, enforcing state laws, he is elected by the voters of a particular county or district and is responsible only to them. 1 The attorney-general is the chief legal officer of the state and should be the superior of the district attorney; but the duties of the attorney-general are primarily civil in character. He is "attorney for the state in its capacity as a public corporation and for its officers in the exercise of their official duties." 2 He has power in a number of states to supervise the conduct of local prosecutors, to intervene in criminal prosecutions, or to initiate prosecutions on his own account. These powers are wide enough to make him the actual chief of the agencies for the prosecution of criminals in a state. But the actual exercise of these powers is loaded with political dynamite. The attorney-general, like the district attorney, is an elected official dependent for his political career upon the same political powers that put the district attorney in office. The district attorney, moreover, is frequently a powerful politician in his own right. The attorney-general cannot afford to alienate or antagonize him by interfering in the conduct of his office. These facts have made almost inevitable "the atrophy of the common law power of the attorney-general to conduct criminal prosecutions." 3 I t is only in exceptional cases that the attorney-general will intervene in criminal prosecutions. 1 There are some exceptions, such as Rhode Island, where the attorney-general is responsible for prosecutions throughout the state. In Delaware the attorney-general appoints a deputy in each county to serve as a prosecutor. In New Jersey the prosecutor is appointed for five years by the governor with the advice and consent of the senate. 2 Earl DeLong, "The Powers and Duties of the State Attorney-General," in Journal of Criminal Law and Criminology, Vol. 25 (September-October, 1934), pp. 358-400, at p. 361. 3 Ibid., p. 372. This article is an excellent discussion of the powers and duties of the state attorney-general.

260

CRIME AND THE

COMMUNITY

T h e state organization of prosecution is in distinct a n d disadvantageous contrast with that of the Federal government and of European countries. T h e Federal attorney-general is the superior of all the prosecuting attorneys in the different Federal districts, and therefore is ultimately responsible for the enforcement of the Federal laws.

In

F r a n c e , I t a l y , and other European countries, the Minister of Justice is the hierarchic chief of all the prosecutors in the country. T h r o u g h the officials in the M i n i s t r y of Justice he exercises a thoroughgoing routine supervision of the w o r k of the local prosecutor. E v e r y local prosecutor must o b e y the orders of the M i n i s t r y of Justice and can be disciplined if he refuses to do so. T h e Minister of Justice can therefore l a y down and compel uniform standards of law enforcement throughout the country. In our states, however, each local prosecutor m a y be a l a w unto himself.

4. The Prosecutor and Criminal

Investigation

T h i s same lack of integration of the prosecutor's office with other law-enforcement agencies is evident also in the provisions for criminal investigation in America. Complaints as to the commission of offenses m a y be made to a number of different officials. T h e y m a y be made to the police, to the sheriff's office, in cases of homicide to the coroner, or to the prosecutor himself.

T h e duties of each of these officials with

respect to criminal investigation are nowhere clearly laid down. A t what stage in the investigation the prosecutor shall be called in is also not clearly laid down.

T h e duties of the various officials when the same

crime comes to their attention are likewise not decided b y the statutes. E a c h official is independent, and the resulting situation in criminal cases that attract public attention is well brought out b y the following comment of the W i c k e r s h a m report on prosecution: In the typical American State polity, police, sheriff's office, coroner's office, and prosecutor's office are wholly independent. Each may and often does conduct its own separate investigation of the same crime. They co-operate and cross each other's tracks or get into each other's way as they like. Each is independently responsible. . . . Often each is quite willing to score at the expense of the other. . . . Not infrequently each is unwilling to aid the other as a rival candidate for publicity. . . . The country over, there is frequent and characteristic want of co-operation between the investigating and prosecuting agencies in the same locality. A prosecutor may work with the police or not, and vice versa. 1 1 National Commission on Law Observance and Enforcement, Report Report No. 4, p. 17. Washington, D. C., 1931.

on

Prosecution,

PROSECUTOR AND COUNSEL FOR DEFENSE

261

The large urban prosecutor's office must be equipped to carry on investigations in the cases that come before it. The provision of facilities for the performance of these functions takes a number of different forms. Sometimes the prosecutor is able to hire investigators out of his contingent fund. More often police are assigned to the prosecutor's office from the local police force. This arrangement may work effectively if there is harmony between the head of the police force and the prosecutor. But the situation which occurred in Chicago in the 1920's illustrates the dangerous possibilities latent in this arrangement. There State's Attorney Crowe and Mayor Thompson quarreled. As a result, Mayor Thompson withdrew the large staff of detectives assigned to Crowe's office from the Chicago police department. 1 It is evident that this whole problem of the prosecutor's relationship to criminal investigation has not been worked out in American law. There is nothing in America to resemble the "police judiciaire" of Europe, an agency of which the prosecuting attorney is an officer, which has specific duties in connection with criminal investigation. This agency is subject to the same central executive authority as the prosecutor.

5. The Prosecutor and the Trial The deficiencies of organization, the failure to recruit and retain competent talent, and the political nature of the office of district attorney are the basic reasons for the inefficiency of the prosecution of crime in America. Large numbers of prosecutions are dismissed with little careful sifting of the facts. "Practically every one of the surveys discloses the haphazardness and carelessness of the procedure in these prosecutor's dispositions and practically every one of them arrives at the recommendation of greater formality and more careful procedural steps." 2 This conclusion is justified by the evidence in the surveys. " I n spite of every evidence in the law that the nolle prosequi is legally intended to be exercised only in unusual cases, it is in fact used with the utmost freedom," wrote Healy in the Illinois Crime Survey. " T h e free use of the nolle prosequi is severely criticized in the Missouri, Cleveland, and Georgia surveys of criminal justice. It is not always apparent on the face of the court record that the prosecutor has adequate Raymond Moley, Politics and Criminal Prosecution, p. 72. New Y o r k , 1929. Bettman, "Criminal Justice Surveys Analysis," National Commission on L a w Observance and Enforcement, Report on Prosecution, Report No. 4, p. 98. 1

2 Alfred

262

CRIME AND THE

COMMUNITY

reason for his action.'" Because of the careless and haphazard way in which the prosecutor's discretion is used, it becomes a way of disposing of criminal cases without trial on grounds nowhere recorded and nowhere ascertainable. 2 Success in any criminal trial is largely dependent upon the thorough and careful preparation of the case for trial by the district attorney. But inadequate and careless methods are characteristic here also. T h e Missouri Crime Survey stated: " T h e prosecuting attorneys of Missouri are, in the main, unable to prepare the state's case with anything like the thoroughness that the average civil case is prepared." 3 T h e situation is no better in Chicago. T h e system now employed in the preparation and trial of cases is also at fault. Assistant state's attorneys are commonly assigned to a single court room and take charge of all cases called in that room. T h u s it frequently happens that cases are tried by attorneys who are utterly unacquainted with the evidence which they are to present and have had no opportunity to confer with witnesses until the day of the trial. T h e natural result of this practice is that prosecution is inefficient and unnecessary errors are committed. 4

T h e Cleveland survey also condemned the lack of preparation of the district attorney for the trial of criminal cases. The prosecuting attorney in Cleveland pits his unpreparedness, with such assistance as he may obtain from the police department, against the carefully prepared case of the defendant's attorney. He takes the proof in the w a y it has been prepared by the police or the municipal prosecutor, making the best of what he gets, or in more serious cases, attempting to remedy the defects or omissions. An unusually sensational case sometimes affords an exception to this practice, but the exceptions are few. 5

6. The Plea of Guilty Still, despite all the handicaps and despite all the deficiencies in the conduct of prosecuting offices, thousands of offenders annually are convicted of crime and are sentenced to fine and imprisonment. These ' J o h n J. Illinois Crime 2National zMissouri 4Gustave Illinois Crime ''Criminal

H e a l y , " T h e Prosecutor (in C h i c a g o ) in Felony Cases," C h a p t e r V I of the Survey, pp. 301-302. Commission on L a w Observance and E n f o r c e m e n t , op. cit., p. 19. Crime Survey, p. 136. F. Fischer, " T h e Juries, in F e l o n y Cases, in C o o k C o u n t y , " Chapter I V of Survey, p. 226. Justice

in Cleveland,

p . 169.

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COUNSEL

FOR

DEFENSE

263

convictions, however, are not usually obtained as a result of a trial at which the issues in the case are carefully thrashed out, the guilt of the accused weighed, and punishment imposed according to the personality of the offender and the gravity of the offense. Convictions in criminal cases in America, especially in urban centers where the pressure of criminal business is heavy, are usually obtained by means of the plea of guilty. T h e defendant charged with his crime confesses his guilt and this confession obviates the necessity for a criminal trial. The following statistics give some indication of the extent of this practice. P L E A S OF G U I L T Y AS COMPARED W I T H C O N V I C T I O N S AFTER T R I A L 1

Jurisdiction,

time

Total convictions

Convictions upon pica of guilty

Convictions after trial

N e w Y o r k City, 1 9 2 5 - 1 9 2 6 Chicago and Cook County, 1926 . . . N e w Y o r k Upstate, cities over 100,000,

s 761 2582

S067 2086

694 496

1925-1926 Cleveland, 1 9 1 9

1254 1596

1048 1198

St. Louis, 1 9 2 3 - 1 9 2 4 Milwaukee, 1926 Multnomah County, Portland, Oregon, 1928 Massachusetts Superior Court, 1932 (Break and enter, Larceny, Larceny

696 1169

585 705

398

.89

168

21

of a u t o ) 2 Massachusetts Superior Court, 1932 (Murder, Manslaughter, R a p e , R o b bery, Felonious A s s a u l t ) 3 . . . .

2084

1816

268

718

184

534

206

in 464

T h e confession involved in the plea of guilty is not that of an accused who realizes that his case is hopeless and throws himself upon the mercy of the court. T h e background of these pleas is admirably stated by the

Illinois Crime Survey: When the plea of guilty is found in the records, it is almost certain to have in the background, particularly in Cook County, a session of bargaining with the state's attorney. If the prisoner is charged with a severe crime which for some reason or other he does not care to fight, he frequently makes overtures to the state's attorney that he will plead guilty to a lesser crime than the one charged. . . . These approaches, particularly in Cook County, are often made 1 Compiled from National Commission on L a w Observance and Enforcement, Report Prosecution, Table I, pp. 1 8 6 - 1 8 8 , with the exception of the Massachusetts figures. 2 Massachusetts Special Crime Commission Report, 1933, p. 65. 3 Ibid., p. 58.

on

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CRIME A N D T H E COMMUNITY

through another person called a fixer. . . . We found many cases in which the plea accepted and the punishment inflicted seemed trivial in comparison to the magnitude of the crime committed.1 A prisoner "dickers for a light r a p " in return for a plea. " I f the prosecutor is sure of his case the terms are apt to be hard. If the state's case is weak because of lack of preparation, absent witnesses, or the congestion of the docket, the defendant may get what he regards as a good bargain by taking a plea of guilty." 2 Both sides profit from the bargain. A prosecutor avoids all the uncertainty, expense, and labor of a jury trial. A defendant takes a short sentence in preference to the possibility of having a heavier one inflicted as a result of a trial. Theoretically the court has the power to refuse to sanction the bargain which has been reached. Sometimes it does so and insists that the trial be held, as in the Capone case. But the courts rarely exercise this power of refusing pleas. T h e y have to dispose of large numbers of cases. If they were to insist that even a substantial part of these cases be tried, the judicial machine would be swamped. Besides, the courts are in the same position here as with respect to the prosecutor's exercise of the nolle prosequi: they are dependent upon the prosecutor for information about the case. The most objectionable feature in this practice of accepting pleas of guilty is that dangerous criminals are treated as minor offenders. One instance, cited by the Illinois Crime Survey, is typical. T h e defendant had hijacked a truck loaded with silk which was valued at $27,000$30,000. He was charged with armed robbery and was subject to a penalty of from ten years to life. His plea of guilty to the offense of petit larceny was accepted and he was sentenced to one year of imprisonment and was fined one dollar. 3 One of the astonishing things which were noted in the records of the eighty persistent offenders in Massachusetts was the facility with which the offenders were able to obtain probation instead of a prison sentence, despite their long records. Undoubtedly in most cases the probation sentence was imposed after a bargain had been made with the district attorney. 1 Andrew A. Bruce, E. W . Burgess, and Albert J. H a m o , " T h e Probation and Parole System," Chapter X I of Illinois Crime Survey, pp. 470-471; see also p. 549. 2 Missouri Crime Survey, p. 150. 3 Bruce, Burgess, and Harno, op. cit., p. 471.

PROSECUTOR A N D COUNSEL FOR DEFENSE

265

7. The Counsel for the Defense The prosecutor is not the only one who serves the administration of criminal justice poorly. In the larger urban centers those who make a practice of defending criminals do their part to undermine an effective enforcement of the law. T h e practice of criminal law in the larger urban centers is usually in the hands of the more disreputable members of the legal profession. American distrust for specialized training and a conception of democracy involving equal opportunity for all has kept down the standards of admission to the bar. " T h e public has been prone to overlook the fact," wrote Llewellyn, "that 90% of the new lawyers are trained in part-time law schools, trained chiefly by night classes in schools run frankly for profit with consequent question as to how far they are run for education." 1 Bar examinations slow up but do not exclude the incompetent; 9 4 % of those who fail to pass in New Y o r k are admitted ultimately. Throughout the country thousands of poorly trained lawyers come to the bar every year into what is already an overcrowded profession. T h e inevitable struggle for survival tends to bring down the standards of the profession. The better trained and more respectable elements avoid the criminal courts and go into the more lucrative civil practice. "Where the best men are not, others will be." 2 The poorly trained lawyer who goes into the practice of the criminal law may make a success of his profession. But his success will be due not so much to his legal and forensic abilities as to his skill in getting the guilty off through wire-pulling and political manipulation. Thus the professional crook seeks out the professional criminal lawyer. Every large professional criminal gang has its trusted mouthpiece, the lawyer who can be depended upon to arrange things. He is on hand with the bail bond or the habeas corpus writ to " s p r i n g " the members of the gang who have had the misfortune to be arrested. If the case can be fixed, the lawyer will find the ways and means to fix it. If, for some reason, it cannot be fixed, the lawyer can be depended upon to arrange for a perjured defense or for the bribery or intimidation of jurors and witnesses. " T h e r e is a group of criminal lawyers," wrote the Chicago City Council, "whose work includes dealing with the police, furnishing professional alibis and professional witnesses, jury fixing, spiriting away JKarl

American

Llewellyn, " T h e Academy

»Ibid., p. 181.

Bar

of Political

Specializes—with

and Social Science,

What

Results?"

The

Annals

V o l . 167 ( M a y , 1933), p. 184.

of

the

266

CRIME AND THE COMMUNITY

of witnesses, exhaustive continuances, and all the underground activity of all around ' f i x e r s . ' , n Unfortunately not all the clients of this type of lawyer are professional criminals. M a n y accused of crime have been caught in the meshes of the criminal law for the first time. Others are charged with relatively minor infractions of the law. Some are innocent of the crime with which they are charged. A large percentage of these individuals are poor, ignorant, and friendless, with an imperfect knowledge of our laws, customs, and language. Their position is well stated in the Seabury Report : A great many of them find themselves in court utterly bewildered and, due to the conditions surrounding their arrest, utterly bereft of all opportunity to engage competent counsel. They are, accordingly, left to the mercies of the group of lawyers who hang around the Magistrates' Courts.2 T h e s e lawyers, the Seabury Report continues, obtain entrée to defendants through traffic in favors with court officials, or, in some instances, b y definite corruption. T h e evidence shows that many practitioners in these courts frequently exact unwarranted fees. T h e investigation brought out many examples of such practice. Where the person accused of crime has no money, he is pretty certain to be left alone b y the professional criminal lawyer. If he is undefended and demands counsel, a lawyer will be assigned to him b y the court. B u t in most states the lawyer assigned is usually expected to serve without pay." These assignments go for the most part to young, inexperienced attorneys who take them for the experience to be gained. But this experience, while profitable to the attorney, may be disastrous to the client. In some communities the attempt has been made to handle these cases of indigent defendants through private legal-aid societies; but these are usually handicapped b y insufficient funds. T h e N e w Y o r k Committee with a staff of four lawyers was able to handle only i o o o cases in 1929, and it was unable to cover the Magistrates' Courts and give the defendants there any protection. 1 T h e inadequacy of private agencies to cope with the problem raised b y the poor defendant has brought into being a 1City

of Chicago, Report of the City Council Committee on Crime, 1915, p. 10. op. cit., p. 216. See Chapter IV for further reference to conditions described in the Seabury Report. The picture presented by the Chicago City Council investigation of crime in 1915 is similar to that brought out by the Seabury Report; cf. Report of the City Council Committee on Crime, 1915, pp. 146, 147. 3 According to Moley, only ten states provide for payment in assigned cases and nineteen states provide that counsel may be paid in capital cases. Our Criminal Courts, p. 67. 4 M o l e y , Our Criminal Courts, pp. 68-69. 2 Seabury,

P R O S E C U T O R A N D C O U N S E L FOR

DEFENSE

267

movement for the establishment of public agencies for the defense of persons accused of crime. 1 Los Angeles was the pioneer here, establishing a public defender in 1913. M a n y other cities and some states 2 h a v e followed this lead.

T h e Seabury Committee w a s not impressed with

these precedents. It w a s afraid that If the plan of a public defender were adopted, his requirements would soon develop along the same lines as those of the district attorneys of the c o u n t y — large and expensive offices and a staff of assistants would be added and in all probability the same political agencies that now are important in the nomination of district attorneys would be equally influential in the nomination of a public defender. . . . Such a plan would simply provide a few more jobs for an organization that has already given inadequate service in the positions that it already dominates and conditions might, probably would, be worse than before. 3 T h e S e a b u r y Committee therefore recommended that the Appellate Division of the Supreme Court designate a group of attorneys recommended b y the B a r Association and the L e g a l Aid Society w h o should hold themselves in readiness to serve in the Magistrates' Courts when required to do so b y the sitting magistrate.

T h e s e attorneys would

receive reasonable compensation for the cases that they handled and their expenses. 4 BIBLIOGRAPHY American L a w Institute. Code of Criminal Procedure. Philadelphia, 1930. BALDWIN, D . E . The American Judiciary. T h e Century Company, New Y o r k , 1905. BEST, HARRY. Crime and the Criminal Law in the United States. T h e Macmillan C o m p a n y , N e w Y o r k , 1930. BETTMAN, ALFRED. " C r i m i n a l Justice Surveys Analysis." National Commission on L a w Observance and Enforcement, Report on Prosecution, Report N o . 4. Government Printing Office, Washington, D . C., 1931. C i t y of Chicago. R e p o r t of the City Council Committee on Crime. Chicago, 1915. Cleveland Foundation. Survey 0} Criminal Justice in Cleveland. Cleveland, 1922. DELONG, EARL. " T h e Powers and Duties of the State Attorney-General in Criminal Prosecution." Journal of Criminal Law and Criminology, Vol. 25 ( 1 9 3 4 ) , N o . 3, PP- 3 5 8 - 4 ° ° 1 See Mayer C. Goldman, The Public Defender, New York, 1919; and Reginald H. Smith, Justice and the Poor, The Carnegie Foundation for the Advancement of Teaching, Bulletin No. 13, New York, 1919. 2 Connecticut, Minnesota, Nebraska, Tennessee, Virginia. Moley, Our Criminal Courts, p. 60. 'Seabury Report, pp. 219-220. 4 Ibid., pp. 221—222.

268

CRIME AND THE

COMMUNITY

and B A K E R , N E W M A N . " Powers and Duties of the Prosecuting Attorney : Quasi-Civil and Criminal." Journal of Criminal Law and Criminology, Vol. 25 (I934-I935), No. i. pp. 21-52. "The Prosecuting Attorney." Journal of Criminal Law and Criminology, Vol. 23 (i933)- PP- 926-963. F E L S T E A D , S I D N E Y T. Sir Richard Muir. A Memoir of a Public Prosecutor. John Lane, London, 1927. GOLDMAN, M. C. The Public Defender. G . P. Putnam's Sons, New York, 1919. H A L L , J E R O M E . Theft, Law and Society. Little, Brown & Company, Boston, 1935. HOWARD, PENDLETON. Criminal Justice in England. The Macmillan Company, New York, 1932. Illinois Association for Criminal Justice. Illinois Crime Survey. Chicago, 1929. Especially Chapter VI, "The Prosecutor (in Chicago) in Felony Cases," by John J . Healy. Indiana Conference on Law Observance and Enforcement. W. B. Burford Printing Company, Indianapolis, 1929. L L E W E L L Y N , K A R L . "The Bar Specializes—with What Results ? " The Annals of the American Academy of Political and Social Science, Vol. 167 (May, 1933). Massachusetts Special Crime Commission Report. Senate Document No. 125, 1933. M I L L E R , J U S T I N . "Compromise of Criminal Cases." Southern California Law Review, Vol. I (November, 1927), pp. 1 - 3 1 . Missouri Association for Criminal Justice. Missouri Crime Survey. The Macmillan Company, New York, 1926. Especially "Necessary Changes in Criminal Procedure " by Herbert S. Hadley. M O L E Y , R A Y M O N D . Our Criminal Courts. Minton, Balch & Co., New York, 1930. Politics and Criminal Prosecution. Minton, Balch & Co., New York, 1929. M O R S E , W A Y N E L Y M A N , and B E A T T I E , R O N A L D H . The Administration of Criminal Justice in Oregon. University of Oregon Press, Eugene, 1932. New York State Supreme Court, Appellate Division, First Judicial Department. Investigation of the Magistrates' Courts. Final Report of Samuel Seabury, Referee. New York, March 28, 1932. POUND, ROSCOE. Criminal Justice in America. Henry Holt and Company, New York. 1930. Reports of the New York Crime Commission. Legislative documents. Especially 1927. S M I T H , R E G I N A L D H. Justice and the Poor. The Carnegie Foundation for the Advancement of Teaching, Bulletin No. 13. New York, 1919. T R A I N , A R T H U R C H E Y N E Y . The Prisoner at the Bar. Charles Scribner's Sons, New York, 1906. W I L L O U G H B Y , W I L L I A M F. Principles of Judicial Administration. The Brookings Institution, Washington, D. C., 1929. DELONG, EARL,

CHAPTER

X I • The Criminal Law in Action

1. Arrest In order to get an adequate idea of criminal l a w in action, it is necess a r y to take a criminal case from its inception through all its stages. Criminal cases usually begin with the arrest of the offender. One of the most extraordinary facts in a nation which prides itself upon its protection of individual liberties and upon its Bills of R i g h t s is the very extensive use which is made of arrests as a method of initiating criminal prosecutions. A n arrest involves the p h y s i c a l t a k i n g of the accused into custody. T h e accused may suffer a grievous interference with his personal affairs. H e is subjected to disagreeable contacts at the station house and to a certain amount of public disgrace. T h e s e consequences are unavoidable where the accused is charged with a serious crime and the possibilities are that he will take flight as soon as he learns that suspicion is directed against him. It is also necessary for the state to assure itself of the person of the accused, where he is without a domicile in the community and is bound to it b y no business, social, or family ties. But the majority of offenders w h o are arrested do not fall into these categories.

M o s t offenders are charged with relatively minor offenses.

In C h i c a g o from 1 9 1 0 to 1921, an average of 106,560 arrests were made annually b y the police. Only 12.3 per cent of these arrests were for felonies. T h e others were for misdemeanors. 1 Similarly, in N e w Y o r k in 1935, less than 1 o per cent of the total arrests reported b y the police were for felonies; namely, 16,981 out of a total of 175,501. 2 L a r g e numbers of those arrested for misdemeanors are permanent residents in the community. T o arrest these persons when they are charged with crime is to inflict upon them a useless burden and annoyance. T h i s is brought out very well b y the following comments in the C l e v e l a n d C r i m e Survey. The field of criminal justice in the modern American State or city has come to include . . . a large number of misdemeanors committed by persons who 1 Compiled f r o m an article by E d i t h A b b o t t , " R e c e n t Statistics R e l a t i n g t o C r i m e in C h i c a g o , " in Journal oj Criminal La-J) and Criminology, V o l . 13 ( 1 9 2 2 - 1 9 2 3 ) , pp. 329-358. 2City

of N e w Y o r k Police Department, A n n u a l R e p o r t f o r 1935, p. 8.

270

CRIME A N D T H E C O M M U N I T Y

are permanent residents, engage regularly and habitually in a lawful occupation, have respectable friends in the city and a social status worth preserving and for whom departure from the city would be a greater punishment than that provided by law for the offense. Sunday ordinances, violations of health, smoke, building, and nuisance ordinances, traffic cases, . . . license ordinances are examples of municipal misdemeanors of this type. Health, building, and factory regulations, laws regarding minors, license laws, election laws are examples of state misdemeanors. The use of the process of arrest in such cases is a waste of effort and an unnecessary drain on overburdened resources.1 In part, the failure to use the summons (that is, a notice to appear on a specific date) more extensively instead of the arrest as a method of initiating prosecutions arises from defects in the legal rules. T h e laws of many states restrict the use of summonses too narrowly. T h e provisions of the law regarding arrest date from an earlier period when regulatory statutes and minor offenses did not have the importance that they have in the complex modern civilization. The law has therefore continued to require the same mechanism for obtaining custody over offenders in the minor cases as in the more serious ones. B u t ordinary police practices are even more responsible than defects in legal rules for a too extensive use of the power of arrest. Where the law allows the officer to choose between summons and arrest he will frequently use the latter, though this may not be justified by the circumstances. Even worse is the fact that police arrest large numbers of individuals against whom they cannot make any justifiable charges. " A l l police reporters know," writes Hopkins, "that night after night in virtually every city, scores of individuals are 'run in' without being charged with any concrete offense, or even without being considered especially connected with any known offense." 2 Of 80,242 persons whose arrests were noted in the surveys of criminal justice, 47.7 per cent were released by the police or by a magistrate without being charged. 3 Of 653,761 arrests compiled from a number of police department reports, 44 per cent were released without being charged. 4 St. Louis, Chicago, and New Y o r k are the worst offenders. In order to cut down to a minimum the inconvenience resulting from the arrest, the law has laid down the requirement that the individual arrested must be taken before a magistrate without delay. It is the duty of the magistrate to inform the accused of the charges against him and Criminal Justice in Cleveland, p. 203. Jerome Hopkins, Our Lawless Police, p. 70. New Y o r k , 1931. 3 Ibid., p. 80. 4 Ibid., p. 84.

1

2 Ernest

T H E CRIMINAL LAW IN

ACTION

271

to try the case summarily if he has jurisdiction over the offense. If the magistrate has no such jurisdiction it is his duty, unless the accused waives examination, to determine whether the charges are sufficient to warrant holding the accused for a trial. If they are not, the magistrate must discharge him immediately. If they are, he must take steps to assure his presence at future proceedings, either admitting him to bail or committing him to jail to await trial. Unfortunately legal rules are not self-operating. Persons arrested by the police in American cities are not brought before a magistrate with a minimum of delay. There is a persistent and widespread practice of detaining prisoners two, three, four days and even longer before bringing them before a magistrate or releasing them. As Beeley stated, A not uncommon practice is to detain a suspect or offender without booking him. Such a practice is, of course, illegal. It is often done in order to ward off counsel, service of the habeas corpus writ, newspaper reporters, etc. until after the police and the public prosecutor have had time to collect the evidence in the case or to extort a confession. Accused persons and suspects are sometimes thus held incomunicado for days. In the process of losing them from lawyers, friends, bondsmen, etc. the police may take such persons to half a dozen different police stations. 1

This practice is not confined to Chicago; it exists in other American cities. In Detroit, the practice known as "sending a man around the loop" is precisely the process described in Chicago of shifting a man around from one station house to another. Frequently the individual is not even booked on the blotter of the station house as arrested. 2

2. The Third Degree This detention of prisoners is the indispensable condition for the use by the police of the practice known as the "third degree." The police need time during which the prisoner is completely within their power to apply protracted questioning and various forms of violence for the extortion of admissions and confessions. T h a t the detention, questioning, and violence are clearly illegal has never been a bar to their extensive use against suspects. " T h e 'third degree' in the sense of rigid and severe examination of men under arrest by police officers or prosecuting attorneys or both, is in use almost everywhere, if not everywhere, in the United States," stated a report to the American Bar Association: 1

Arthur Lawton Beeley, The Bail System in Chicago, p. 24. Chicago, 1927. op. cit., p. 128.

2 Hopkins,

272

CRIME AND THE

COMMUNITY

T h e boldness with which the sheriffs, police, and states' attorneys practice this lawlessness is astonishing and goes on in spite of protests and rebukes from the courts. Indeed no other fact more clearly demonstrates the feebleness of our courts than their inability, or at least their failure, to compel officers to obey the law in this respect. T o obtain confessions or admissions the officers (usually detectives) proceed to " w o r k " the prisoner. " W o r k " is the term used to signify any form of what is commonly called the third degree, and may consist in nothing more than a severe cross examination. Perhaps in most cases it is nothing more than that, but the prisoner knows that he is wholly at the mercy of his inquisitor and that the severe cross examination may at any moment shift to a severe beating. This knowledge itself undoubtedly induces speedy confessions in many instances and makes unnecessary a resort to force. If the prisoner refuses to answer, he may be returned to his cell with notice that there he will stay till ready to " c o m e clean." T h e cell may be especially chosen for the p u r p o s e — c o l d , dark, without bed or chair. T h e sweat box is a small cell completely dark and arranged to be heated till the prisoner, unable to endure the temperature, will promise to answer as desired. Or refusal to answer may be overcome b y whipping, beating with rubber hose, clubs, or fists, or by kicking, or by threats, or promises. Powerful lights turned full on the prisoner's face, or switched on and off, have been found effective. T h e electric chair is another device to extort confessions. T h e most commonly used method is persistent questioning, continuing hour after hour, sometimes by relays of officers. I t has been known since 1500 at least that deprivation of sleep is the most effective torture and certain to produce any confession desired. Prisoners are taken to the morgue, made to view and touch the man they are suspected of having killed, or to the place of their supposed offense. 1

Innumerable cases in which the third degree has been applied to suspects may be cited. Only one need be given here. This was the wellknown case of one Ziang Sung Wan, charged with murder, whose case was reviewed by the Supreme Court of the United States. 2 1 Cited in Z. Chafee, W . H. Pollak, and C. S. S t e m , " T h e T h i r d Degree," in Report on Laiflessness in Law Enforcement, R e p o r t N o . 11, N a t i o n a l Commission on L a w Observance and Enforcement, pp. 47-48. G o v e r n m e n t Printing Office, Washington, D. C , 1931. " I n 1929 the president of the American B a r Association, Gurney E . N e w l i n , speaking of the lawless enforcement of law in his presidential address, thus summarized his investigations into judicial decisions and other evidence of the third degree: ' S c a n d a l s involving the use of third degree methods have been reported of late years f r o m such divergent places as N e w Y o r k , Chicago, Seattle, San Francisco, N e w Orleans, E a s t St. Louis, P i t t s b u r g h , D e n v e r , L o s Angeles, and W i c h i t a . T h e y have become a serious b l o t upon the administration of justice.' " Ibid., p. 49. 2Ziang

Sung W a n v. United States, 266 U. S. 1 (1924).

THE CRIMINAL LAW IN

ACTION

273

Three Chinamen had been found dead in the Chinese Educational Mission in Washington, D . C . Wan was suspected. He was found in New Y o r k , where he was ill in bed, searched without a search warrant, and brought to Washington. There he was held incommunicado in a hotel room eight days, all of the time acutely ill so that a police surgeon was repeatedly called. He was questioned almost continuously night and d a y and guarded by policemen at all times. T h e examinations sometimes lasted until 5 in the morning. On the eighth day, from 7 P.M. to 10 A.M., he was questioned at the scene of the crime. On the ninth day he was at last formally arrested and taken to a police station where investigation was immediately resumed. On the eleventh day he was again questioned at the scene of the crime for hours. A stenographic report of the interrogation was then written out, which he signed on the twelfth d a y . Four oral confessions were also made after the seventh d a y . On the thirteenth day he was for the first time examined by the jail physician who found him very ill and under the circumstances not responsible for anything he had signed. He lay ill for a month in bed. Three Washington detectives and the Superintendent of Police participated in this process, which all took place before production in court. Wan's conviction was reversed and these confessions excluded by the Supreme Court. A f t e r two subsequent juries had disagreed as to his guilt, the district attorney stated to the judge that it would be impossible to find a j u r y which would declare W a n either innocent or guilty. T h e accused was thereupon released seven years after his arrest. 1

3. The Preliminary Hearing E v e n t u a l l y , w h e t h e r or n o t the a c c u s e d is i l l e g a l l y d e t a i n e d or g i v e n the t h i r d d e g r e e , the police, if t h e y w i s h a n y a c t i o n t a k e n on t h e c h a r g e , must bring him before a magistrate for a preliminary hearing.

These

p r e l i m i n a r y h e a r i n g s are u s u a l l y c o n d u c t e d b y j u d g e s or m a g i s t r a t e s in the i n f e r i o r c o u r t ; t h a t is, police c o u r t s , m u n i c i p a l c o u r t s , j u s t i c e of the p e a c e c o u r t s , e t c . T h e m a g i s t r a t e a t t h i s p r e l i m i n a r y e x a m i n a t i o n m u s t d e t e r m i n e w h e t h e r or n o t a c r i m e h a s in f a c t b e e n c o m m i t t e d , a n d a l s o w h e t h e r or n o t t h e r e is p r o b a b l e c a u s e to s u s p e c t the a c c u s e d .

If

the m a g i s t r a t e finds t h a t t h e r e is p r o b a b l e c a u s e to b e l i e v e t h a t the a c c u s e d h a s c o m m i t t e d the offense w i t h w h i c h h e is c h a r g e d , h e t a k e s the s t e p s n e c e s s a r y to insure his a p p e a r a n c e a t t h e t r i a l : e i t h e r t h e a c c u s e d is c o m m i t t e d to j a i l or b a i l is f i x e d a n d he is l i b e r a t e d o n d e p o s i t of the p r o p e r s e c u r i t y . T h e p r e l i m i n a r y h e a r i n g , t h e r e f o r e , is d e s i g n e d to a c h i e v e i C h a f e e , Pollak, and Stern, op. cit., p. 73.

certain

274

CRIME AND THE

COMMUNITY

v e r y important objectives in the administration of the criminal law. M o l e y enumerated these as f o l l o w s : [For the Defendant] The nature of the crime is defined and the allegations concerning its connection with the defendant are set forth. The defendant when he can easily prove his innocence is enabled to dispose of the charge quickly and without much publicity. He is partially protected against ignorance and vicious inquisition by police and prosecuting agencies. [For Both State and Defendant] Opportunity to determine bail is provided. Expensive and lengthy trials are avoided when there is insufficient justification for holding them. [For the State] The State is enabled to hold the defendant when "probable cause" is shown, with sufficient time to prepare the prosecution. The State is able to get into some sort of permanent form the testimony of witnesses who may disappear or forget or be tampered with. Witnesses may be bound over for the grand jury or for the trial. 1 B u t not only is the preliminary hearing of great importance functionally ; in any efficient study of the administration of justice it is of v e r y great weight because of the large percentage of criminal cases disposed of at this stage of the proceedings.

T h i s is evident from the

following table. PERCENTAGE OF C A S E S E L I M I N A T E D AT T H E P R E L I M I N A R Y Jurisdiction

Per

New Y o r k City (1926) Four large Pennsylvania cities

74.4

Chicago and Cook C o u n t y ( 1 9 2 6 ) . . . . N e w Y o r k Upstate Cities over 100,000 population ( 1 9 2 6 ) Cleveland ( 1 9 1 g ) St. L o u i s ( 1 9 2 3 - 1 9 2 4 ) Baltimore ( 1 9 2 7 )

56.6

Prosecution,

58.1 26.2 28.0 27.7

Milwaukee (1926)

17.4

Cincinnati ( 1 9 2 5 - 1 9 2 6 )

54.6

R a y m o n d M o l e y , Our

2Source:

cent

58.7

Jackson County, Missouri (Kansas C i t y ) 1

National

Criminal

Commission

T a b l e I, p. 186.

Courts, on

HEARING2

.

.

50.6

p. 21.

Law

Observance

and

Enforcement.

Report

on

T H E CRIMINAL LAW IN

ACTION

275

It is clear from this table that in the large cities a high percentage of the decisions which in the last analysis determine the course of justice are made in preliminary hearings by judges of inferior courts. In most cases these decisions are final. Both because of the importance of its functions and because of the large number of cases finally disposed of in the preliminary hearing, it is highly important that this hearing be conducted under conditions guaranteeing an efficient performance of duties. But descriptions of the inferior court in action show that such guarantees are usually absent. T h e preliminary hearing, at least in the large cities, seems to be carried out under the most unfortunate conditions and circumstances. A large volume of cases is thrown upon the court for disposition. T h e inferior courts are trial courts for misdemeanor cases, as well as courts of preliminary examination for felony cases. Their congested dockets are usually a confusion of all kinds of petty misdemeanors, regulatory offenses, serious felonies, etc. Under the pressure of business, all offenses tend to receive the same casual consideration which precludes any careful sifting of the facts for intelligent disposition. In order, decorum, and general atmosphere the conditions in these courts leave much to be desired. This whole procedure in the preliminary hearing has been condemned as " a mockery of law administration." 1 Descriptions of typical courts in action show that this sharp condemnation is justified.

[Harrison Street C o u r t , 625 S. C l a r k Street, C h i c a g o ] T h i s is, next to the b o y s ' court, the most important branch of the criminal court. . . . I t is housed most inadequately considering the amount of business that it must dispose of.

W h e n the court is in session in the morning the room is

crowded almost to suffocation. T h e noise is v e r y great. O n one side of the room is a r u n w a y fenced in b y wire which, in a v e r y inadequate w a y , separates the prisoners coming from their cells from the people in the room. T h e r e is no reason w h y communication cannot be carried on between prisoners and visitors and articles passed through from the latter to the former. T h e section before the bench is jammed with policemen, lawyers, bondsmen, reporters, detectives, visitors, curious and genuinely i n t e r e s t e d — m e n , w o m e n , and children, y o u n g and old, rich and poor, vicious and innocent. T h e bailiffs during the entire session of the court go through the ineffective motions of seeking a better order. T h e y are constantly rapping for order and pleading w i t h the mob to m o v e b a c k from the bench and open the w a y to t h e bull pen. 1

J. J. Healy, in Illinois Crime Survey, p. 308.

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Benches are provided for those who have legitimate business in court but usually no one is sitting on them. For self protection and in order to see and hear better, people prefer to stand. T h e smoke is always thick. There is much laughing, loud talking, whispering, and expectoration. A t times the noise rises to almost deafening proportions, due to the shuffling about and the loud shouts of the bailiff and the pounding of the gavel and the remarks of the bystanders and efforts of the judge to elicit information from reluctant witnesses. It is probable that many cases are dismissed for want of prosecution because the complaining witness fails to hear the case called. In the ante-room and court room are posted many warning signs stating that no loitering will be permitted and that persons found guilty of violating this order will be prosecuted, but we have failed to see any indication of the actual enforcement of this rule. 1 A n e x p e r i e n c e d n e w s p a p e r r e p o r t e r p r e s e n t e d the f o l l o w i n g p i c t u r e of one b r a n c h of t h e C l e v e l a n d m u n i c i p a l c o u r t in action. T h e environment is anything but conducive to respect for the law. T h e room itself is inexcusably dirty, dark, and noisy. From the four doors there is a constant stream of visitors, witnesses, court attendants, probation officers, and attorneys filing around the edges of the room. T h e confusion is enhanced by the w a y in which cases are conducted. T h e witness-stand is but a few feet from the seat of the judge, so that whatever questioning is going on is inaudible i o feet away. Reporters who are " c o v e r i n g " the court are forced to lean over the back of the witness-chair in order to hear. It is easy to see w h y newspapers often get court reports mixed up. A t many times during the trying of cases there were as many as 40 persons gathered closely around the witness-stand or within 10 feet of the bench. This gathering was not confined to those persons taking part in the case under consideration, but consisted largely of attorneys waiting for their own cases to be called. There was no method of distinguishing prosecutors from witnesses or attorneys from prisoners. Non-appearances seemed to be in fashion at this court. In at least a dozen cases neither the accused nor the policemen nor detectives were present at first. T h e cases were called again and again, some of them being heard with part of the witnesses present, others apparently going by default. I did not hear the judge order a single person brought in or mention " c o n t e m p t " once. H e may have done so, but if he did, it was in a whisper. Frequently Judge A was conversing with the clerk or some other person and was not in a position to hear the evidence being brought out. A t all times he was conducting cases in a spirit of complete boredom. Prosecution of cases was conspicuous chiefly by its absence. Nine-tenths of the questioning of witnesses was done by the attorneys for the defense. T h e 1

R a y m o n d M o l c y , " T h e M u n i c i p a l C o u r t of C h i c a g o , " Chapter X of Illinois

Survey,

p. 405.

Crime

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prosecutor was present during part of some cases and absent during all of some. In not one case which I observed was he present at a complete trial. His chief function seemed to be to assist the bailiff in rounding up witnesses and in informing the judge of facts regarding the cases which the blotter did not show. This lack of prosecution was so obvious it was almost laughable. 1

A. Bail Usually some time must elapse before a person can be brought to trial. The State needs time to work up its case in order to be able to sustain its charges. To keep the accused in jail during this period is a hardship on the defendant as well as a burden upon the State. In most states, therefore, the defendant has been given a constitutional right to release on bail while awaiting trial for all offenses except those punishable with death. Bail is defined as "security given by a person charged with crime for his appearance for further examination, or for trial, whereupon he is suffered to go at large." 2 It is of the essence of bail that the security which the defendant or his sureties provide, whether it be in the form of cash or of real estate, shall guarantee the defendant's appearance when wanted. If the defendant fails to appear, then the security is forfeited to the State, and the defendant may immediately be taken into custody. Thus the purpose of the bail system is to insure the presence of accused persons by devices insuring to society a maximum of certainty but imposing a minimum of restraint upon accused persons. Perhaps nowhere else have the failures been so patent as in the field of bail-bond administration. The essential reason is that there is money to be made in bail bonds. We have seen how large a proportion of prosecutions are begun by means of arrest instead of summons. A large percentage of these cases are not disposed of immediately when the accused is brought before a magistrate. The defendant must therefore either provide bail or stay in jail to await trial. Since the practice of releasing on one's own recognizance (that is, releasing on a simple promise to appear, backed by no security) is none too common in American cities, large numbers of bail bonds must be written. Bail is usually set for comparatively large amounts. The defendant is generally too poor to provide the amount of bail demanded himself. Sometimes 1 2

Criminal Justice in Cleveland, pp. q8-99. William Lawrence Clark, Handbook of Criminal Procedure, p. 83. St. Paul, Minn ,

I895-

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he m a y have a friend who will put up the bail. B u t a much easier alternative, if the defendant has any money at all or a n y possibility of getting any, is to have bail furnished b y a professional bondsman. In the courts of urban centers, these bondsmen are permanent fixtures. T h e y employ runners who solicit business very freely, among the defendants and their relatives in court. T h e y have understandings with court clerks, attendants in charge of the bull pen, and jailers.

This

co-operation between professional bondsmen and minor court officials has its dangers, as M o l e y pointed out. Another danger often fostered by the presence of the wrong kind of professional bondsmen is the fact that there is likely to develop between these professionals and minor court officials a relationship that may come ultimately to most improper activities. Clerks and other attaches may solicit business for bondsmen, may " t i p " off bondsmen as to the amount of valuables taken from a defendant, and thus give an indication of what may be collected as a fee for signing the bond.1 In return for providing security for the prisoner the professional bondsman usually exacts what he can from him as his fee. " I t is not at all uncommon for a bondsman to exact twenty percent or more of the amount of the bond as a fee. Cases are known where such exactions have been made from relatives of the accused w h o could ill afford such an excessive charge." 2

F a t livings are therefore made from writing bail

bonds. A professional bondsman in N e w Y o r k " s p o r t s his pale green Hispano Suisa town car driven b y his own chauffeur." 3 T h e security offered by the bonds of the professional bondsman is largely worthless. Large numbers of bonds are written, and the same property is very apt to be pledged as security for all of them. Methods of checking and supervising the value of security offered in any large city are still in their infancy. Moreover, there are m a n y different places where bail is accepted. In N e w Y o r k C i t y alone, bail may be taken at i i o different places. T h e judge who accepts bail usually does not know the bondsman's past commitments. T h e following comments bring out this situation very clearly. Independent bondsmen often offer real estate as security. In many cases, however, they have in the property an equity far below the amount which they pledged. There may be liens against the property. The bondsman may 1

Missouri Crime Survey, p. JIO. New York, ig26.

2

Ibid., p. 2cg.

3

Moley, Our Criminal Courts, p. SO.

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have pledged the value of the property many times over. I n a s m u c h as there is no exchange of information between the Federal courts, the C o u r t of General Sessions, the C o u r t of Special Sessions, and the M a g i s t r a t e s ' C o u r t s , it is impossible to k n o w in how m a n y different places the same property has been pledged. A t the present time there is no provision for investigation into the actual value of real estate which is offered for security. 1 A n e x a m p l e of t h e o p e r a t i o n of t h e p r o f e s s i o n a l b o n d s m a n is g i v e n by Moley. H i s police record shows t w e l v e arrests on minor charges. T h i r t y thousand dollars in forfeitures were outstanding on September i , 1925. I n spite of the foregoing facts he w a s on September 1, 1925, liable for $90,000 of bonds.

It

should be noted that one circuit j u d g e accepted $65,000 of the $90,000. In the y e a r covered b y our investigation of misdemeanor bonds he signed $390,595 in bonds, and in the circuit court in the same year he signed $279,700.

Thus

basing our estimate upon the commonly known rates charged b y bondsmen, this man whose real estate was valued at $24,100 with a mortgage of $31,500 w a s permitted to become surety in one y e a r on bonds aggregating $670,295, a n d his compensation in all probability was not less than $33,000 and m a y h a v e ranged as high as $100,ooo. 2 I t is t h e r e f o r e i n e v i t a b l e t h a t b a i l d o e s n o t b i n d , a t l e a s t in c a s e s in which the bonds are written b y professional bondsmen.

As

Bettman

wrote, Bail bonds are forfeited w i t h great ease, b u t the forfeitures are set aside to a n excessive degree.

In o n l y a comparatively small percentage of forfeited

bonds is j u d g m e n t entered.

A n absurdly small percentage of the judgments

are collected. 3 T h e w o r s t f e a t u r e o f t h e o p e r a t i o n o f t h e b a i l - b o n d s y s t e m is t h a t i t p e r m i t s p r o f e s s i o n a l c r i m i n a l s to obtain their f r e e d o m w h i l e trial.

T h i s permits t h e m to continue their depredations,

interrupted b y arrest.

awaiting

momentarily

T h e police m a y h a v e p u t f o r t h a g r e a t d e a l of

e f f o r t t o a r r e s t a p r o f e s s i o n a l c r i m i n a l , o n l y t o h a v e h i m o u t in t h e s t r e e t s o n b a i l t h e n e x t d a y , e n g a g i n g in h i s h a b i t u a l o c c u p a t i o n s .

This

h a s b e e n c a l l e d " t h e g r e a t e s t s i n g l e f a c t o r in n u l l i f y i n g e f f e c t i v e w o r k a c c o m p l i s h e d b y t h e P o l i c e D e p a r t m e n t of N e w Y o r k C i t y . ' M

In N e w

Y o r k C i t y , said Senator W a l e s , " o n e offender w a s found to be at liberty 2Missouri Crime Survey, p. 212. Seabury, op. cit., p. 104. op. cit., p. 90. This is also brought out by Moley in Our Criminal Courts, pp. 46-474 New York County, Association of Grand Jurors, Report, Nov. 16, 1925. 1

3 Bettman,

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on nine bail bonds at the same time. The loot of the thief had been found in the vaults of a surety company as indemnity against loss to the surety on the bail bond of the thief who stole it." 1 Sometimes the professional criminal must get back on the job in order to pay the bail-bond fee of the professional bondsman. As Beeley says, In addition to the demoralizing effect of the professional bondsman . . . there is the increase in crime itself which the system directly induces. This is well illustrated in the case of Jimmy Smith, who shot and killed O'Connell in the hold-up trying to raise $500 to satisfy a professional bondsman who had obtained his release from gaol on another charge. T h e account of this case reads as follows: " M y old mother had mortgaged her $2500 home to raise $500 as part of the $1000 this bird had demanded for going $40,000 to 'spring' me from jail. I was to get out and ' e a r n ' the other $500 before October 7. I had only one week to go. How else could I raise $500? So Saturday I took my gun and went out on the 'stick-up.' I am sorry O'Connell is dead, I didn't mean to shoot him, but I was desperate." 2

While the bail-bond system is no protection against dangerous professional criminals, it operates harshly against large numbers of minor offenders. We have seen in considering the subject of arrest that many accused persons charged with minor crimes are bound to the community by social, family, and occupational ties. These individuals would hardly sacrifice their place in the community to escape answering the charge against them. N o security is required to insure their appearance in court. Nevertheless they are very often kept in jail while awaiting trial if they cannot furnish bail for their appearance. In Chicago, Beeley studied 225 prisoners confined in jail awaiting trial. He came to the conclusion that 65, or "about 28% " of the persons studied, were needlessly imprisoned while awaiting trial. Their appearance for trial could have been effected in simpler ways, such as reduction in the amount of bail or acceptance of cash bail instead of real estate security or allowing a bail without sureties. 3 The Grabsky case cited in the Seabury Report is typical of cases in which the imposition of bail as a condition of release is a harsh, unnecessary burden, profiting no one but the professional bondsman. 1 F r o m the address of Senator B. Roger Wales before the League of Women Voters at Buffalo, Nov. 22, 1928. In " T h e Baumes L a w " (J. E. Johnsen, c o m p ) , pp. 57-58. The Reference Shelf, Vol. V I , No. 3. N e w Y o r k , 1929. 2 BeeIey, op. cit., pp. 42-43. See also Seabury Report, pp. 115-116. 3 Beeley, op. cit., pp. 159-160.

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Judge Silbermann fixed bail for Hyman Grabsky at $1000, thus requiring him to go out and pay a considerable sum as a premium to the bondsman. He later continued this bail in the same amount. A little investigation, which he apparently did not take the trouble to make, would have shown that Hyman Grabsky had never before been in trouble with the police, owned his own fur business, his own home, was a man with a family and many relatives in N e w Y o r k , who had never been out of N e w Y o r k for any length of time, knew practically no one outside of N e w Y o r k , and was in bad health and partially paralyzed. The idea that Judge Silbermann considered a thousand dollar bail necessary for preventing such a man from running away is too absurd to detain us long. T h e fixing of a thousand dollar bail in a case like that of Hyman Grabsky has no relation to the purpose of bail which is to insure the appearance of the defendant in court. T h e Grabsky case is typical of what goes on in the Magistrates' court every day. T h e actual result of the practice is to provide an income for an army of bondsmen, many of whom, according to our investigation, are little short of criminals themselves. 1

5. The Grand Jury Twenty-four states and the Federal government require that the sufficiency of the charge against the accused be passed on in a second proceeding by the grand jury after the preliminary hearing has been held. The grand jury is composed of thirteen to twenty-three laymen. At least twelve must concur in voting the indictment against the accused if he is to be tried on the charge. The grand jury is one of the historic institutions of the AngloAmerican law. It was formerly considered one of the fundamental guarantees of the individual against executive authority. M a n y states therefore made provision for the grand jury in their constitutions, repeating Amendment V of the Federal Constitution, which says " N o person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or an indictment of a grand jury." At the present time the grand jury is considered a handicap to the efficient administration of criminal justice. In the first place the grand jury permits an evasion of responsibility. A magistrate at a preliminary hearing may decide that in a doubtful case it is better to pass to the grand jury the burden of deciding whether there is sufficient evidence to justify trial, rather than to weigh the evidence carefully and come to a decision himself. Still more serious is the fact that the grand jury permits the district attorney to initiate or dismiss prosecutions as he 1 Seabury

Report, p. 118.

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wishes and y e t have no responsibility for these decisions.

Authoritative

commentators on the grand j u r y are agreed that in substance the grand j u r y is just a rubber stamp for the district attorney.

A s one writer

p u t it, Every prosecutor knows and every intelligent person who ever served on the grand jury knows the prosecuting officer almost invariably completely dominates the grand jury. . . . He is accorded the right to interrogate witnesses; he may to a large extent determine the witnesses who shall be summoned. This is a completely effective power because when an indictment fails to be returned in a given case it is usually because there is not sufficient evidence, and if the State's attorney is not sufficiently diligent in producing the necessary witnesses, an indictment can scarcely be expected. Thus he may exercise a powerful and conclusive and irrevocable power of veto without anything to interfere at all, simply by failing to produce the witness necessary to convince the grand jury that an indictment should be returned. . . . He can by the phrasing of his questions elicit the type of information which he wants the grand jury to hear. If a lay member of the grand jury attempts to explore a case on his own account, the State's attorney can easily, if he so desire, make the effort of such an amateur appear to the other members of the jury as fruitless and pointless. He can usually awe most of the members of the grand jury by his superior knowledge of the criminal law. His domination of the sessions is practically complete. 1 If the prosecutor were using his influence over the grand j u r y to bring in true bills, the situation from the standpoint of the efficacy of prosecution might not be so serious. B u t statistics show that the grand j u r y fails to return a true bill in a considerable percentage of the cases presented to it. In Massachusetts, in the year ending September, 1932, 17.5 per cent of all the defendants in five serious offenses against the person (murder, manslaughter, rape, robbery, and felonious assault) and almost

10 per cent of three serious offenses against property

( b r e a k i n g and entering, larceny, and larceny of a u t o ) were not indicted b y the grand j u r y . T h u s it is quite possible that the prosecutor is using the grand j u r y to kill cases in which he does not wish to assume full responsibility b y using a nolle prosequi. T h e requirement of a second preliminary hearing through the grand j u r y is also one of the main causes of delay in the prosecution of crimes. In Suffolk C o u n t y ( B o s t o n ) , the grand jury holds a session on the first M o n d a y of every month.

A defendant bound over for action b y the

1 J. J. H e a l y , in Illinois Crime Survey, p. 299. See aU-'i the N a t i o n a l Commission on I . a w Observance and Enforcement, Report on Prosecution, pp. 1 2 4 - 1 2 6 ; M o l e y , Politics and Criminal Prosecution, p. 143; W i l l o u g h b y , Principles of Judicial Administration, pp. 1 7 4 - 1 9 4 .

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grand jury must therefore wait from one to thirty days before an indictment is voted or rejected. In other counties in Massachusetts the grand jury meets much less frequently than in Suffolk County, and the delay between binding over and grand jury action is consequently much greater. This delay is harmful because it militates against successful prosecutions of guilty defendants and it may even work unnecessary hardship on the innocent defendant. In the lapse of time between the preliminary examination and the grand jury hearing, witnesses may disappear, suffer a lapse of memory, or leave the state and thus put themselves beyond the reach of the court, since there is no extradition to cover such cases. These contingencies are especially likely to occur if the witnesses are hostile or reluctant to testify. The delay also increases the opportunities for approaching witnesses and influencing them either by money or by threats. Even a complaining witness may, in the interim between preliminary examination and trial, be influenced by cash or by intimidation to change his testimony. Often no record is made of testimony in the court of preliminary examination; there is no check upon loss of memory, use of influence, or the disappearance of witnesses between the time of the preliminary examination and the trial. While this delay may be highly favorable for a guilty defendant, it increases the burden of a poor but innocent one. For the defendant who cannot raise bail, the requirement of a grand jury hearing increases the length of time he must spend in jail awaiting trial. Because of the conviction that the grand jury has outlived its usefulness, twenty-four states have eliminated it as a necessary step in the prosecution of most crimes. These states now, by constitutional provision or by statute, permit offenses formerly indictable to be prosecuted by the mere filing of an information by the district attorney. T h e American L a w Institute, which compiled a Model Code of Criminal Procedure, recommended that this method of initiating prosecutions be extended to the other states which still require grand jury indictments as a condition precedent to trial.

6. The Jury Trial T h e most outstanding feature of American criminal procedure is the extent to which the jury trial is prescribed as the method of disposing of criminal cases. Trial by jury is guaranteed by the constitutions of most states in terms similar to those in the Federal Constitution: " t h e trial

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of all crimes . . . shall be by j u r y ; " l "in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury." 2 These provisions do not exclude summary trial without a jury for petty offenses. They must be interpreted in the light of the common law existing when the various constitutions were adopted. Before the adoption of the constitutions there was a large class of minor or petty offenses which were punishable in a summary procedure before justices. T o these cases the provisions as to trial by jury do not apply. Nor do they apply to new and analogous offenses. But the extent of the summary jurisdiction in which there is no right to trial by jury is necessarily limited, and it varies from state to state. Since summary trial without a jury is in derogation of the common law, its extension to new offenses to which the constitutional provisions were intended to apply is jealously guarded against. 3 At most it extends only to misdemeanor cases. In some states the right to trial without a jury is limited to cases in which a fine is imposed, in others to cases in which fines are below a certain amount. In a few states a man has a right to a jury trial for all offenses no matter how petty. Despite the extensiveness of the right to trial by jury, this method of trial is the exceptional rather than the normal mode of disposing of criminal cases. In Massachusetts, for example, one accused of crime has a right to jury trial for all offenses. Yet of 140,048 convictions in the District and Superior Courts in 1932, only 2,208 cases, or 1.7 per cent, were the outcome of jury trial. 4 Other jurisdictions in the United States also report small percentages of jury-tried prosecutions in serious cases. In New York City only 4.7 per cent of all felony prosecutions ever reach jury trial; in Chicago, only 3.8 per cent; in Cleveland, 13.6 per cent; in Cincinnati, 11.8 per cent; and in St. Louis, 13 per cent.5 We have already noted many reasons why such comparatively small use is made of the jury in the United States. Large numbers of cases never reach trial but are disposed of in the preliminary stages of the procedure either at the preliminary hearing or through the exercise by the prosecutor of his right to enter a nolle prosequi. In many states the accused may waive his right to jury trial; then he may be tried by a judge sitting without a jury. In some states waiver of jury trial is 1Art.

2 Sixth Amendment to the Constitution. I l l , Sect. 2, of the Constitution. v . Wilson, 127 U. S. 540, 8 Sup. C t . 1301 (1888) ; Ex Parte W o n g Y o u T i n g , 106 C a l . 296, 39 Pac. 627 (1895) ; People v. Craig, 195 N . Y . 190, 88 N . E. 38 (1909). 4 M a s s a c h u s e t t s Commissioner of Corrections, Report, 1932, pp. 108, 126; 691 convictions pending f r o m the prior y e a r in the Superior C o u r t were considered jury cases. 3Callan

• B e t t m a n , op. cit., p. 64.

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limited to misdemeanor cases. 1 Most convictions, as we have seen, are obtained on pleas of guilty, in which event the jury is dispensed with and the judge imposes sentence. Nevertheless the jury trial is still a highly important part of the criminal process, although it is not used as extensively as one would suppose. T h e r e are m a n y cases where the accused is guilty yet will refuse to plead, preferring to take his chances with the jury rather than to strike a bargain with the prosecutor. In some cases, as in murder, the consequences of a plea of guilty are so serious, owing to the penalty fixed b y law, that the accused must take his chances with the jury. Prosecutors also bring to trial before a jury such cases as have attracted considerable public attention. This m a y be done because of a desire for the publicity which will arise from the trial, or because the public pressure is so great that the prosecutor is afraid to bargain for a plea, or because the accused has refused to plead. T h e jury trial is important also because the general public obtains its notions of the operations of the machinery of criminal justice from what takes place at such trials. These are the most publicized part of the procedure. T h e public is not aware of w h a t goes on in the prosecutor's office or in the minor courts which hold preliminary hearings; but the jury trial in any notorious case has dramatic values which find expression in the columns of the public press. Given the importance of the jury trial, it is highly significant that such a large percentage of acquittals are reported after trial b y j u r y : 56 per cent in N e w Y o r k C i t y , 56.8 per cent in Chicago, 23.3 per cent in Cincinnati, 38.2 per cent in Cleveland, and 42.8 per cent in St. Louis. 2 These figures appear especially high since in most of the cases there have been two determinations that the prosecution was prima facie justified, one by the court in the preliminary hearing and the other b y the grand jury. Explanations for this inefficiency of the jury trial must be sought in its organization and procedure. Intelligence, the ability to weigh and evaluate evidence, capacity to free oneself from bias and prejudice, are indispensable qualities for jurymen who are to try criminal cases. These are unusual qualities at best, and are not likely to be found in a large percentage of those summoned for jury duty. T h e better class of jurymen, moreover, are also apt to be the busiest men or those most inconvenienced b y the burden of jury duty. T h e y will therefore try to get themselves excused. T h e quality of the trial jury is apt to be still further 1 American L a w Institute, Code of Criminal Procedure, Commentary to Sec. 266, p. 807 f. Philadelphia, 1930. 2 Bettman, op. cit., p. 65.

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affected b y the maneuvers of the prosecuting attorney and the counsel for the defense in selecting the actual jury to try the case. Challenges are used extensively by both prosecutor and defense counsel in the hope of getting a jury which will be favorable to one side or the other. T h e American jury trial is a contest, with the prosecuting attorney and the counsel for the defense as the contending parties and with the jury as the arbiter of the facts. B u t it is a contest which, assuming that counsel are evenly matched, is weighted in favor of the defendant. T h e burden is on the prosecution to prove that the accused is guilty beyond a reasonable doubt. If the proof is not made out, counsel for the accused may demand a directed verdict of acquittal. The accused, who on the continent of Europe is thoroughly interrogated at the beginning of every trial, does not need to take the stand in the United States. Nor, in most states, may comment be made on his refusal to testify. In order to secure a conviction, the prosecution must obtain a unanimous verdict of the jury. All the defense needs to do to secure a mistrial is to instill a persistent doubt in one juryman. Unless the case is of great importance, it is quite likely that the mistrial will be equivalent to acquittal, since the prosecution will usually drop the case after its first failure. If the prosecution obtains a conviction, the accused has the right of appeal. T h e prosecutor has no right to appeal against an acquittal. Under the old common law conception of trial by jury, the presiding judge was the impartial guide to the jury. It was he who balanced and evaluated the evidence, calling the jury's attention to the factors which should be taken into account in the formation of its verdict. But hostility to the presiding judge in the United States cut down his powers. In most states the judge has no right to comment on the evidence. The Ohio Supreme Court has gone so far as to s a y : A court in charging a jury should so evenly balance the scales of justice as not to indicate by a wink, look, shake of the head, or peculiar emphasis, as to his notions as to which way the verdict should go. When a case is submitted to a j u r y at all, it should be impartially submitted, and if the court feels that the case is so clear as to require an indication from him, he should direct a verdict and then his action can be easily reviewed in a higher court; but if he gives a charge which looks fair on paper, but which is distorted by his looks, attitudes, emphasis, winks, and rolling of the eyes, an unjust result is often attained which cannot be corrected in the higher court. 1

Some states go still further in cutting down the power of the trial judge. A t common law, the jury is the judge of the facts, but it must take the J68

Ohio State 614,

21.

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law applicable to the facts from the presiding j u d g e ; but some states h a v e provided b y statute or in the constitution that the j u r y in criminal cases are the judges of the law as well as the facts. Under these provisions it is held in some states that the instructions of law which the judge hands down when all the evidence is in are only a d v i s o r y ; that the j u r y is not bound b y them, and may disregard them if it is so inclined. Other non-legal factors peculiar to this country have led to the still further effacement of the trial judge. T h e trial judge is the creature of politics. If he is to retain his position, he cannot afford to alienate the political groups represented by influential lawyers, newspaper reporters, gang leaders, etc. It is much easier to take no action than to take some positive stand on the course of the trial which might bring him into conflict with one of these groups. T h e result is that counsel too often take command of the trial. In the struggle it is the counsel for the defense who has least to lose. A conviction m a y be reversed; an acquittal cannot be reviewed. BIBLIOGRAPHY ABBOTT, EDITH. "Recent Statistics Relating to Crime in Chicago." Journal of Criminal Law and Criminology, Vol. 13 (1922-1923), pp. 329-35S. American Law Institute. Code of Criminal Procedure (Proposed Final Draft and Commentaries). Philadelphia, 1930. BEELEY, A. L. The Bail System in Chicago. The University of Chicago Press, 1927. CHAFEE, Z.; POLLAK, W. H.; and STERN, C. S. "The Third Degree." Report on Lawlessness in Law Enforcement, National Commission on Law Observance and Enforcement, Report No. n . Government Printing Office, Washington, D. C., 1931 CLARK, WILLIAM LAWRENCE. Handbook

oj Criminal

Procedure

(1895

EC

L-)-

West

Publishing Company, St. Paul, Minn., 1895. Cleveland Foundation. Survey oj Criminal Justice in Cleveland. Cleveland, 1922. HOPKINS, ERNEST JEROME. Our Lawless Police. The Viking Press, New York, 1931. Illinois Association for Criminal Justice. Illinois Crime Survey. Chicago, ig2g. See John J . Healy, Ch. VI, "The Prosecutor (in Chicago) in Felony Cases," and Raymond Moley, Ch. X, "The Municipal Court of Chicago." JOHNSEN, J . E. (comp.) "The Baumes Law." The Reference Shelf, Vol. VI, No. 3. Especially pp. 57-58. The H. W. Wilson Company, New York, 1929. Massachusetts Commissioner of Corrections. Report, 1932. Missouri Association for Criminal Justice. Missouri Crime Survey. Macmillan, 1926. MOLEY, RAYMOND. Our Criminal Courts. Minton, Balch & Co., New York, 1930. Politics and Criminal Prosecution. Minton, Balch & Co., New York, 1929. New York County Association of Grand Jurors. Report, November 16, 1925. New York State Supreme Court, Appellate Division, First Judicial Department. Investigation of the Magistrates' Courts. Final Report of Samuel Seabury, Referee. New York, March 28, 1932. W I L L O U G H B Y , W . F. principles of Judicial Administration. The Brookings Institution, Washington, D. C., 1929.

Part III PUNITIVE PROCESSES

CHAPTER X I I

• T h e Penal System

When the courts have finally convicted the person arrested for a crime, he may be sentenced to a penal institution, if one of the many other ways of dealing with him has not been adopted. W e have already seen that only a fraction of those arrested are finally convicted. And even those convicted need not necessarily be sent to a penal institution — t h e y may be fined, placed on probation, given a suspended sentence, or pardoned. But the fact remains that one way the community has of dealing with its convicted criminals is to confine them in a penal institution. We are now to consider the kinds of institutions to which they are sent, and what happens to them there.

1.

The Magnitude

of the

Problem

Our penal institutions, including Federal and State prisons, reformatories, workhouses, farms, chain gangs, county and city jails, number more than 3000. From a purely administrative point of view, we maintain that number of institutions for incarceration of individuals committed to them. N o analysis or even adequate description of these institutions, in their great variety, or of the types of administrative problems they present, will be undertaken. The material for such a description is not available even if it were deemed advisable to attempt it. But for the purpose of focusing the economic, social, political, and administrative questions involved in the prison problem, it is important to see that problem in its larger terms. It would not be far from the facts to say that these 3000 individual institutions represent 3000 different examples of administrative arrangements, methods of control, and policy in dealing with the human material incarcerated in them. W e have no uniform practices except in a few political jurisdictions. T h e whole stands as an unwieldy, unorganized, hit-or-miss system which has grown up over hundreds of years of local policy-making, local tradition, and local objective. Certain broad influences have made themselves felt, especially in the last hundred years, in the development of types of prison buildings, in the use of labor, in the scheme of discipline. But, as a rule, even where general influences have appeared they have been so adapted, modified, and absorbed into the older local pattern as to

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CRIME AND THE COMMUNITY

leave our national penal system nearly as complex, varied, and unstandardized as it w a s before the so-called reforms. N e a r l y 700,000 human beings pass through the gates of these institutions each year.

In 1933 the total admissions were 693,988.

As a

matter of long-range social policy the effect of these institutions, directly upon the lives of the prisoners and indirectly upon the community to which they are ultimately released, is a question of the greatest importance. T h e problems involved in the control of criminal and unsocial behavior are closely tied up with the influence of these institutions upon the inmates whose lives they affect. W e cannot hope to m a k e serious progress in our attempts to reduce the number of crimes committed or the proportion of criminals to the general population without discovering w a y s and means sharply to m o d i f y the organization and administration of our penal and correctional institutions.

Of the total

number admitted to all our prisons a vast m a j o r i t y are released in short periods. T h e s e short-term prisoners m a k e a special problem apart from the general problem of control of the long-term prisoners. T h e approximately 160,000 human beings w h o in 1934 were incarcerated in the 1 1 3 Federal and State prisons and men's reformatories constitute our longterm prisoners. T h e annual cost of administering these large institutions is nearly $30,000,000, and the actual investment in buildings, land, and equipment is probably near $100,000,000. T h e average annual cost for each inmate in the larger institutions is nearly $350. T h e s e

figures

indicate in broad terms the problem as a whole. W e m a y ask whether this vast expenditure of money, labor, time, and effort is so organized as to produce the best results in terms of reduction of crime, protection of society, and readjustment of the individuals involved.

2. The Purpose of the Prison T h e purpose of the penal institutions is the protection of society.

To

this end all efforts must be bent and all administrative methods be adapted. All judgment upon the functioning of our prison system, or of a n y unit within it, must be in terms of the protection of society.

This

raises the question of how penal institutions can best contribute to this objective. T h e r e seems but one answer p o s s i b l e — b y the reformation of the criminal. N e a r l y all prisoners, even in the long-term institutions, are ultimately released. T h e v a s t m a j o r i t y of the prisoners in the F e d e r a l and State prisons and reformatories are released within two years. Unless these prisoners are so readjusted before release that they

are

T H E PENAL SYSTEM

293

more likely to be law-abiding citizens than before they were arrested and sentenced, the prison has not served its purpose. If the prison experience not merely fails to improve the character of the inmate but actually contributes to his deterioration; if, as is charged, our prisons turn the less hardened into more hardened criminals, then the prison has not only failed in its duty to protect society but has become a contributor to the increase of crime within the community. Stated positively, it is the function of the prison to find the means so to reshape the interests, attitudes, habits, the total character of the prisoner as to release him both competent and willing to find a way of adjusting himself to the community without further violation of law. In so far as the prison releases persons who upon their release are neither competent nor willing to behave as law-abiding citizens, it has failed in its task of protecting the community from crime. If it cannot achieve this under present arrangements, then the scheme of penal administration, both internal and external, must be so reshaped as to insure a larger measure of success.

3. The Age of our

Prisons

We have approximately 100 institutions used for long-term confinement of convicts. These include Federal and State prisons and reformatories ; some are women's institutions. If we exclude the women's reformatories, all the other institutions, broadly speaking, are operated on the same pattern and represent the same type of penal structure. Exception is to be made as to some of the Southern prisons. Apart from those, approximately 80 institutions are of the Auburn type. Of the 67 prisons, 8 still in use were built more than 100 years ago; these include a few of the largest in the country. Of this type are such prisons as Auburn, New Y o r k , and Charlestown Prison in Massachusetts. Fifteen of the 67 prisons are between 70 and 100 years old. 1 This means that well over a third of all prisons in the country still in use were built over 70 years ago. Only 19 prisons were built since 1900. This matter of age is significant from many points of view. T h e older prisons were constructed before modern sanitary systems were developed; before the importance of light and ventilation was properly appreciated; before modern ideas of segregation, classification, recreation, and education were accepted. In their structure they reflect the absence of these ideas. J T h e Illinois Prison Inquiry Commission points out in its 1937 report that part of Joliet is 76 years old, has been condemned as unfit by every prison commission in the past 30 years, and is still in use.— The Prison System in Illinois, pp. 226-227.

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CRIME AND THE

COMMUNITY

T h e institutions known as men's reformatories had their origin in 1 8 6 9 , when Elmira Reformatory was authorized by the legislature of N e w Y o r k . But even among these institutions, 1 0 were built more than 3 0 years ago. N o r do they differ in type of construction from the prisons. Regardless of date of construction, these prison buildings belong to a clearly defined type. 1 With very few exceptions, a cell block is put inside a prison building. T h e earlier prison buildings were built with narrow slits for windows and with cell doors almost closed, permitting only a minimum of air, light, and ventilation. The cells had no water system; buckets were used by the men and emptied once every 24 hours. T h i s system has been modified, changed, adapted, and improved upon with the years.

But the older system of construction still dominates, both

in type and in organization.

Improvements have taken place in the

enlargement of the windows and in the provision of a wide-space barred door equal to the width of the cell; but the type of structure with its congregate character, with hundreds of men in the same cell block, thousands in the same prison, and with all cells alike, has continued.

4. The Old Cell Block T h e old cell-block system as first constructed at Auburn in 1 8 1 9 still stands. T h a t system, as we have just indicated, has been a model for prison construction ever since.

Even now, more than a hundred

years since it was first built, its influence is apparent in prison design. Adaptations, improvements, changes, have taken place; but there has been no complete rejection of the type except in one or two instances. Even the modern construction in Massachusetts is recognized not to "differ in principle" from the older model.

The older model itself

is still in use. T h e cell at Auburn Prison is approximately 4 feet wide, 6 feet long, and 8 feet high. This gives an approximate air space of 1 9 2 cubic feet. This cell was copied in Sing Sing Prison, begun in 1 8 2 5 , but there the cell was made still smaller. Sing Sing was built with cells 3 feet 3 inches wide, 7 feet long, and 6 feet 7 inches high, giving an air space of 169 cubic feet. Nor was this the smallest: the cells erected by the House of Refuge in N e w Y o r k gave only 1 3 7 cubic feet. This has been the minimum air space allowed in any prison. Since then changes and enlargements have increased, but slowly. The Elmira Reformatory, for instance, built as late as 1 8 7 6 , gave 3 1 5 cubic feet of air space to its cells. 1 T h e new State Prison Colony at Norfolk, Massachusetts, represents a complete departure from the older prison architecture. This institution was begun in 1927.

THE PENAL SYSTEM

295

Taking the cell blocks as originally built, we find that of the 92 individual cell blocks in American prisons, 53, or 58 per cent, are under the minimum now required by the New York State Department of Correction, which is 364 cubic feet of air space, and 82 per cent are under the 6oo-foot minimum for outside cells in the new construction under Federal auspices, while nearly all the cells now standing are inside cells. What is true of the prisons is true of the reformatories. Of the 25 cell blocks in reformatories, 36 per cent have less than the minimum of 364 feet of cubic air space and 96 per cent have less than 600 feet of air space. In other words, the percentage of reformatory cell blocks approximating the minimum of Federal construction for outside cells is lower than that of the State prisons. If instead of the actual cell blocks we take the total number of cells, we get a somewhat better picture, since modern prisons have generally had larger cell blocks and therefore more cells. But even here the striking fact remains that of the 33,642 cells now in use as originally built, 3910, or 12 per cent, have less than 200 cubic feet of air space. This is less than half the air space of 400 feet which may be taken as a minimum, and is less than a third of what is now required by the Federal Government in outside cells for its new prisons. And it must be repeated that these other cells are inside cells, and that inside cells receive less light than comes from direct sunlight. " A cell 5 feet away from the window gets only onetwenty-fifth the light to be had through a direct window," and the space between the cell block and the prison building where the window is located is generally over 15 feet. Of the cells, 67 per cent have less than the minimum of 400 cubic feet of air space, and 38 per cent less than three fourths of this amount. If we take the minimum set up by the New York Department of Correction for its new buildings, 63 per cent of all the cells for which we have a record, totaling 22,578, have less than the required minimum of 364 cubic feet of air space, while nearly 90 per cent have less than the minimum set up by the Federal Government for its new construction. The old prison cell has been described as a diminutive box with an opening of some 1 5 inches square for inlet of light and air from the outside corridor. This type of solid cell is still in wide use. Later construction has modified it to the extent of removing the steel plate of the lower part of the door and providing open bar work for doors. In the older prisons the cell block with its narrow windows almost prevented any air or light from getting into the cell. Happily, even in some of these old buildings the windows in the outer walls have been

296

CRIME AND THE COMMUNITY

enlarged. B u t it must be remembered that an inside cell is always more poorly ventilated and has less direct sunshine than an outside one. T h e older cell blocks just described, which are still in use, were built without internal plumbing. In 1933 the bucket was still used exclusively in 21 per cent of the men's prisons in the country. Among these were some of the largest in the United States. Examples of these institutions are the State prisons in Oregon, the Charlestown Prison in Massachusetts, the Auburn and Clinton Prisons in N e w Y o r k , Folsom Prison in California, and the old prison in Joliet, Illinois. 1 Altogether, fourteen large penal institutions were relying exclusively upon this antiquated and unsanitary means of dealing with this vital problem.

5. Overcrowding This picture of size of cell, internal cell block, and lack of plumbing in so many institutions would not be complete without the additional fact of overcrowding. In order to form a judgment as to the problem the prison system imposes upon the community, and especially as to its influence upon the men imprisoned, we must take note of this feature. The Census Bureau gave overcrowding in prisons and reformatories for 1926 as 11.7 per cent more than original capacity, and for 1927 as 19.1 per cent more. In 1932 overcrowding was recorded as 7.3 per cent. T h e same source cited overcrowding for the State of Pennsylvania for 1932 as 46.8 per cent of capacity; California, 60.8 per cent; Indiana, 46.9 per cent; Missouri, 59.3 per cent; Nebraska, 47.0 per cent; North Carolina, 135.2 per cent; K e n t u c k y , 50.8 per cent; and N e w Mexico, 50.7 per cent. Such figures are not adequate, as the term " c a p a c i t y " has different meanings to the wardens who make the reports. Sentences have been increasing in length, and in spite of the decrease of admissions owing to the change in the prohibition laws, in spite of the increased use of probation, parole, and other non-institutional methods of correction, the number of persons confined in prisons and reformatories has increased. There were 137,082 prisoners in state and Federal prisons in 1932 as against 129,453 in 1931, and between 1929 and 1933 the total increase amounted to 28.8 per cent. While space has been increased in some of the states, we have just seen that overcrowding is very serious in a number of them. Specific examples of what the situation is in many institutions may be seen from 1 The Illinois Prison Inquiry Commission in 1937 condemned the bucket system still in use ¡11 Menard and Joliet. Op. cit., pp. 38, 41, 230.

T H E PENAL SYSTEM

297

the following few typical instances. In 1 9 3 5 the M a r y l a n d penitentiary had 950 cells, designed to house one man each, and contained 1 2 9 6 prisoners, while the house of correction, with 720 cells and 328 beds, housed 1 4 7 7 men and 1 0 8 women. 1 In K e n t u c k y in 1 9 3 6 there were 2698 prisoners in a reformatory rated with a capacity for 1 7 0 0 inmates, while the State Penitentiary housed 1 2 4 1 prisoners in a building equipped with but 540 single cells. 2 In practice, this overcrowding means that two prisoners are placed in cells originally constructed for one. It means also that in a few institutions, in addition to double-deck bunks in cells originally intended for one man, a mattress is placed on the floor of the cell for a third inmate. Official records disclose many significant facts as to overcrowding. T h e New Y o r k State Commission of Correction in 1 9 3 0 , reporting for Auburn, said: In spite of the fact that all the inmates who can safely be removed to cantonments and road camps have been sent out, the prison is still overcrowded and some of the population is compelled to sleep on cots in the space in front of the cells in the North Cell Hall. 3 T h e same commission, speaking for Clinton Prison, s a i d : The report for the past fiscal year shows that the highest population at any one time was 1578, the lowest 1474, and the average 1523. The capacity of the prison is 1196. . . . It is still necessary to have prisoners sleep in the space in front of the cells in the East Hall. There is also a small room over the garage which is still used as a dormitory, and prisoners are also housed in the main dormitory of the prison hospital and in part of the Tuberculosis Hospital Building. 1 T h e Wisconsin prison reported that 1 8 8 men were sleeping on cots in the corridors; that this situation was not only dangerous but was unlawful, and should be corrected at once. T h e K e n t u c k y State R e f o r m atory said in its report for 1 9 3 0 , " E v e r y cell in the white cell house contains two men and none of them is large enough for one. T h e cells have no sanitary provisions; not one is equipped with either toilets or running water." T h e same State reported for its prison at E d d y v i l l e : " I t has been necessary to quarter the prisoners in the cell house corridors on ' T h e Prison Industries Reorganization Administration, The Prison Labor Problem Maryland, p. 5. Washington, D. C., 1936. 2 The Prison Industries Reorganization Administration, The Prison Labor Problem Kentucky, p. 3. Washington, D. C., 1936. 3 New York State Commission of Correction, Report for 1930, p. 74. * Ibid., p. 80.

in in

298

CRIME AND T H E

COMMUNITY

cots during the summer months, but with the approach of winter some other plan must be devised. Just what, if anything, can be done to relieve the immediate situation, we do not know yet." The State Prison of New Mexico said, "Housing two men in a cell which is only 7 by 8 by 5 feet means a very crowded as well as a very insanitary condition." The State Prison of Stillwater, Minnesota, reported " I t is necessary during the winter months to put cots in the corridors of the cell houses to take care of the men. This method is not safe and from a sanitary point of view is very unsatisfactory." Said the report of Walla Walla, Wash.: " 1 0 0 prisoners were sleeping on cots in the passageways as well as a few in tents. This condition is serious, as well as dangerous to discipline and proper sanitation." In 1932 as many as 20 states reported overcrowding. 1 According to the report of the Kentucky State Prison, this overcrowding in terms of sleeping quarters is made still worse by the limited amount of space within the walls. " I t has been estimated that with the present population the grounds provide approximately 3 1 / 2 square feet for each man. That includes the space taken up by the flower beds and things of that sort." This is not exceptional. About one third of all our prisons, including shops and industrial establishments, cell blocks, and all other buildings, inclose less than 10 acres within the prison walls. In some prisons, because of overcrowding and insufficient labor, a large proportion of the men are kept locked up a considerable portion of the day. There are instances of 20 hours out of 24 in cell confinement. Under such conditions the amount of air space available for each prisoner is a matter of serious concern. We have already seen that a large number of the prisons when originally built were constructed with insufficient air space, and that 12 per cent of the original cells had less than half the air space even on a 400-cubic-foot requirement, which is 200 feet under the Federal minimum for its new construction in outside cells. But, taking not the original air space but the present allotment in terms of overcrowding, the situation in our prisons becomes almost incredible. In 1928, 17 per cent of the cells occupied had less than 132 cubic feet of air space per man; that is, less than one third of the necessary minimum, and this for inside cells. Of the others, 43 per cent had less than half the minimum of 400, or only 200 cubic feet per inmate. I

T h c Prison Industries Reorganization Administration, beginning its surveys of individual states, in 1936 and 1937 reports overcrowding in The Prison Labor Problem in West Virginia, p. 1 ; in Texas, p. 8; in Tennessee, p. 9; in Oklahoma, p. 3 ; in Maryland, p. 5 ; in Kentucky, p. 3. The Illinois Prison Inquiry Commission reported in 1937 overcrowding in Menard, op. cit., p. 4 7 ; Stateville, p. 1 5 9 ; Joliet, p. 243; Pontiac, p. 281.

THE PENAL

SYSTEM

299

The following table gives the details of the cubic air space per inmate in the 33,642 cells for which records are available. 1 CUBIC FEET OF AIR PER MAN PER CELL IN 33,642 CELLS (BASED ON 400 CUBIC FEET AS NORMAL) 5740, or 17 per cent, have less than one third, or 132 cubic feet per man 14.625, or 43 per cent, have less than one half, or 200 cubic feet per man 20,210, or 60 per cent, have less than three fourths, or 300 cubic feet per man 27,886, or 83 per cent, have less than 100 per cent, or 400 cubic feet per man 5756, or 17 per cent only, have more than 40c cubic feet per man

6. Idleness These conditions of overcrowding are made still more serious in those prisons where there is insufficient work for the prisoners. The exact amount of unemployment in prisons is not known. For 1923 the Department of Labor estimated a little over 6 per cent of the prison population as idle; that is, lacking even nominal employment. From what evidence is available it is clear that the actual unemployment is considerably higher. In 1928, for instance, data available for 27 prisons housing a total of 36,798 prisoners showed that 5864, or 16 per cent, were unemployed. Of the 2 7 institutions, 2 had 50 per cent of their population in idleness, 3 had between 30 per cent and 50 per cent; 6 had between 20 and 30 per cent. The New York State Prison Commission reported for 1928 that "more than 2500 prisoners (out of 9980) are kept without employment." In many other prisons the percentage of unemployment is very large. This is true of such prisons as Walla Walla in Washington; Auburn and Clinton prisons in New Y o r k ; the State prison at Columbus, Ohio, where for years over a third of the prison population has been kept in idleness; the prison in Colorado; the Eastern and Western Penitentiaries in Pennsylvania; the State prison in Wisconsin; the prisons in Maryland, Nevada, Utah, Montana, Michigan, and others. In view of the small cells, the poor ventilation, the insufficient light, the crowded conditions, and the absence of toilet facilities in many prisons, unemployment adds a burden and strain upon both the prison administration and the inmates which becomes almost intolerable. In some of the prisons, in order to overcome unemployment or at least to reduce it to a minimum, men are placed at work on useless tasks. In others two and three men are put to doing what previously was done 1 Computed f r o m data reported by the Osborne Association in its Handbook of American Prisons and Reformatories, 1933.

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CRIME AND THE

COMMUNITY

b y o n e m a n . I n s o m e t h e m e n a r e t a k e n to a n e m p t y l o f t d u r i n g t h e d a y a n d m a d e to sit on b e n c h e s w i t h n o t h i n g to d o f r o m b r e a k f a s t till noon a n d t h e n f r o m n o o n till s u p p e r . T h e d e t e r i o r a t i n g c o n s e q u e n c e s of y e a r s of i d l e n e s s in a n o v e r c r o w d e d a n d f r e q u e n t l y s e m i - d a r k

atmosphere

u n d e r p r i s o n discipline a r e a p o o r p r e p a r a t i o n f o r a return to s o c i e t y . I n f a c t , t h e c o n d i t i o n s a s t h e y exist m a k e r e f o r m of t h e i n d i v i d u a l priso n e r difficult to d e m a n d a n d e v e n m o r e difficult to fulfill. Without work convicts waste physically and suffer in morals and mentality. Discipline becomes difficult and the guard system becomes more expensive. It is a facile descent from idleness to mischief and worse. In turn come plotting, rebellion, punishment, anger, more vicious plotting, assaults, murder and attempted breaks to liberty. T h i s c o n d i t i o n of i d l e n e s s h a s g r o w n c o n t i n u a l l y w o r s e .

In April,

1935, James V. Bennett wrote: Most American state prisons are now merely vast idle houses filled with a horde of despairing, discouraged, disgruntled men, milling aimlessly about an overcrowded prison yard. T a k e a peep at San Quentin if you don't believe it, where 5800 men are immured in an institution built for 2500, with eight hours of real work daily for only about one sixth of the population; or drop into the y a r d , if you've nerve enough, at Jackson, Mich., where less than 10 per cent of the 6000 inmates have a job which is anything more than busy work. Look over the wall at the " r e f o r m a t o r y " at Frankfort, Ken., where the only outlet for the energies of 3000 prisoners is a small shop employing less than 200 men, and then ask yourself if unemployment is worse on the Bowery than in " T h e B i g Stir." T h e situation was bad enough two years ago when a survey by the U. S. Bureau of Labor Statistics showed that something like 52 per cent of the inmates of all state and federal penitentiaries were alleged to be occupied in some form of industry, agriculture, road-making, reforestation, and the like. But it is far worse today when out of the 160,000 men in the prisons of this country less than 20,000 h a v e any kind of employment other than time-wasting and energy-consuming tasks connected with the maintenance of the institution in which they are incarcerated. 1 1 James V . Bennett, " A m e r i c a n P r i s o n s — H o u s e s of Idleness," in The Survey, April, I93S ( V o l . L X X I , N o . 4 ) , p. 99. T h e Prison Industries Reorganization Administration, in its individual state surveys, reported idleness: in Utah, 4 6 % completely idle, p. 1 ; in Vermont, 4 5 % idle, p. 13 ; in Delaware, apart f r o m the w o r k h o u s e , almost 1 0 0 % idle, p. 29; in Maryland, over 5 0 % idle, p. 5 ; in Kentucky, 2848 idle, 1199 e m p l o y e d , C h . I I ; in West Virginia, 823 idle out of 2224, p. 10.

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301

7. Sanitation and Health In the older prisons, where the inside cells are all built of brick, cement, or stone, it is almost impossible to keep the cells dry. The walls are thick, the air and light are insufficient, and the buildings remain damp and the walls frequently moist. The steam heat provided by pipes on the outer wall of the prison building is not sufficient to dry the cells. As a result there is complaint of a great deal of rheumatism among the prisoners. The cells are also impossible to keep clean. The walls will not hold paint or whitewash for any length of time, and become breeding places for vermin. If it is recalled that a large number of our prisons are over 70 years of age, that many of them have no toilet facilities, that they are all overcrowded, this additional factor of dampness and the further and frequently persistent factor of vermin in the older prison buildings make the conditions of living all the more insanitary and degrading. Underclothes are changed, ordinarily, once a week; so is sheeting. But blankets are not (at least in many places) properly or frequently enough either cleansed or ventilated in the sun. 1 Bathing is required, ordinarily, once a week. " I n cells with 150 cubic feet or less of air capacity it is necessary to effect a change of air at least every three or four minutes to prevent the accumulation of undesirable odors"; but the ventilating systems in most prisons are inadequate, especially for inside cells. The ventilating system is expensive to operate and is shut off when the men leave their cells, and even when under operation it is not always effective, since the ventilators are frequently covered as tightly as possible to exclude vermin or are covered by inmates to avoid drafts. Under these conditions it can hardly be expected that the prison buildings of the older type which still prevail should contribute to the reform of the prisoners confined in them. They tend to coarsen their inmates, harden them, and reduce to a minimum the self-respect of those who are placed in prison with the objective of reform. What has been said of ventilation applies to the general health services of the prisons. In a large measure this is owing to the position of the prison doctor. Too frequently the prison physician is dependent directly upon the warden for tenure and is changed with every change of wardens. It has been estimated that a prison physician requires from two to four years fully to grasp the perplexing problems of health admin1 On these various topics the Illinois Prison Inquiry Commission makes typical expressions of dissatisfaction, op. cit., pp. 27, 140, 2 2 9 - 2 3 0 , 284.

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CRIME AND THE COMMUNITY

istration; but frequent changes of tenure make this impossible. Further, the low salary schedule for even full-time officials is such as to make it difficult to secure the best type of medical service. In one prison in 1928 the yearly salary for a full-time prison doctor was $1500. In twenty-four institutions the average salary was 83120a year. This did not materially differ from salaries in reformatories, which are equally low. T h e highest salary was found to be $5000, and that only in one prison in the country. A more serious difficulty lies in the subordinate position of the physician in the official group. Instead of having a recognized position of authority over the inmates under his charge, especially when hospitalized, and instead of having an important voice in determining the occupational activities of the prisoner, the physician is frequently considered and treated as a subordinate to other subordinate prison officials. T h e result is both a lack of power and a lack of confidence in the prison doctor. While this is not always true, and while within the last few years " a genuine advance in prison medical service is indicated by several new hospitals, increased medical personnel, more complete and thorough examinations and higher standards of treatment," it is still true in such a large majority of the cases as to be an almost general rule. T h e functions of the prison doctor, if properly executed, are so varied and important that he ought to be given power to carry out what is dictated by his professional knowledge. But it must be recognized that until the prison is conceived by those in charge of it as an institution for the reconstruction of the prisoners' careers, such powers and opportunities will not, as a rule, be available. Hospital facilities also are often inadequate. It has been said by Dr. Frank L . Rector, after a full study of all the prisons, that "in but few prisons are the hospital facilities adequate to meet the needs of presentday hospital care." 1 With insufficient beds, insufficient hospital space, with poor equipment and inadequate assistance in the form of inmate nurses, with the all too frequently untrained and officious guard who interferes in the legitimate activities of the prison physician, the hospital and medical care of the prison is not what the prison community requires for its best service to the inmates. These conditions are still worse in the prisons where the doctor is on part time. Out of the hundred 1

F r a n k L . R e c t o r , Health

p . 67.

N e w Y o r k , 1929.

and Medical

Service

in American

Prisons

A typical c o m m e n t on the inadequacy

and

s e r v i c e in t h e p r i s o n s is c o n t a i n e d in the P r i s o n I n d u s t r i e s R e o r g a n i z a t i o n s u r v e y , The

Prison

Labor

Problem

in OkUkt-»:->.

p;>

4.

Reformatories.

of m e d i c a l a n d

hospital

Administration

THE PENAL

SYSTEM

303

institutions for which a record is available, 60 had part-time physicians only; and of the 40 that had so-called full-time physicians, in every case the physician was also in outside private practice. How inadequate this service is can be seen from the fact that a number of our prisons have two, three, and four thousand prisoners inside the walls. T h e ordinary prison demands a varied service of the doctor. He must not only examine all prisoners received, but must treat all cases of illness, whether tubercular, venereal, surgical, or other, that present themselves. He ought also to look after the sanitary conditions as well as the food. He must attend daily sick calls, and ought to be consulted in all serious disciplinary cases. The demands upon him are altogether too heavy, considering the compensation and the aid he is given. What is true of the prisons is true also of the reformatories for men. How the general influence of a penal institution may lead to the institutionalization of the medical officer is to be seen in the following excerpt from an official investigation of one of the prisons in the State of Illinois: 1 T h e medical officer seems to have become engrossed in problems of discipline, referring frequently to his partisanship for very rigorous disciplining and to his handling of obstreperous men. T h i s might be studied as an example of institutionalization and loss of professional detachment. While he admitted that solitary confinement, even a single solitary confinement, if covering several days, would make a man susceptible to disease, and repeated solitary confinement would undermine his health, he did not clearly state how closely he supervised the health of men subjected to solitary confinement ; nor was his office equipped with data as to its consequences; nor did he have any data on hand on other questions of disease, casualty and mortality within the prison.

8. The Warden T h e demands on the warden are varied. He has to be the State executioner. He has also to be a humanitarian. He is expected to be a great educator and at the same time a disciplinarian and custodian for the hardened and the embittered, the desperate and the weak. He is expected to be a good business man and run his institution at a profit, but is denied the usual prerogatives of the ordinary business man in planning his industry, making necessary changes in equipment and capital investment, seeking the best market for the goods he produces, and adjusting his industrial mechanism to changing markets. All these difficulties 1

The Illinois Crime Survey, p. 4Q9.

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CRIME AND THE COMMUNITY

must be taken into consideration before judgment is passed upon the warden. All of them ought to be weighed before condemnation is heaped upon him as an administrator, an educator, a reformer. But, while the warden may not be personally responsible, the fact remains that the institution he has administered has failed; and in so far as the warden stands as the administrative symbol of our penal institutions the failure reflects, in part at least, upon him as an administrator. The prison has failed as a business enterprise: with few exceptions our prison system is a costly and dependent institution; we spend on the average $350 each year for the maintenance of each individual prisoner in our penal institutions. The prison has failed as an educational institution: no one maintains that the men who are released are better equipped to play an honest role in the world than they were before commitment. The prison has failed as a disciplinary institution: the riots, the use of cruel and brutal measures of punishment, the persistent recurrence of murder within the prison, the presence of sodomy and narcotics, the frequent atmosphere of hate and bitterness, are sufficient evidence. In part, at least, the failure is attributable to the method by which the warden is chosen and to the time he is allowed to hold his position. He is generally a political choice without adequate preparation for his duties. 1 In some Western states the term of the warden begins and ends on the same date as that of the governor, and the appointment is primarily a reward for political service rendered. This is illustrated by the fact that in one of our prisons alone in the space of some 70 years we have had 36 wardens. This makes an average tenure of something less than two years. A classification of the material in the 1933 Handbook of American Prisons and Reformatories, published by the National Society of Penal Information, indicates that 40 per cent of all the wardens listed had had less than five years' service. There were 34 wardens in this group; 12 of these had had less than 2 years' experience; 15 more of them had had less than 4 years' experience; nearly 60 per cent had served less than 7 years; and 75 per cent had served less than 10 years. No adequate account of their previous experience or qualifications is available. The largest percentage gave prison work as their background, which probably means that they had had earlier positions as guards or deputies. Some 18 per cent of all the wardens had had political experience; some 15 per cent more had been either sheriffs or police officers. This should suffice to show that the 1 F o r specific examples see Illinois Prison Inquiry Commission, op. cit., pp 152, 238, on the deputy warden at Joliet and the superintendent of prisons.

THE

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305

SYSTEM

warden does not bring to the prison the background of training required by modern standards of penal administration. In part, at least, this situation is due to the fact that the warden's salary does not attract men who can earn better incomes in other callings. For those prisons and reformatories for which data were available, the salary schedule was low indeed. Of the 85 wardens whose salaries could be classified, 14 per cent received $2500 a year or less and only 6 per cent received a salary of over $6000. C L A S S I F I C A T I O N OF 8 5 PRISON AND R E F O R M A T O R Y W A R D E N S B Y A M O U N T OF S A L A R Y Salary 2 Less than $2500 Between $2500 and Between $3000 and Between $3600 and Between $4000 and Between $5000 and Over $6000 Total

$3000 $3600 $4000 $5000 $6000

1

Number of Wardens 12 11 I2

Per Cent H 13 14 II

9 23 13 5

27 IS 6

85

100

When one remembers the manifold responsibilities that a prison administrator must assume and the aptitudes he must display, this schedule of salaries is an eloquent reason for the comparatively slow progress we have made in the adoption of scientific methods in the administration of our prisons. But it would be an error to assume that the financial difficulty is the major one in securing the kind of person who needs to be attracted. The greatest difficulty lies in the concept of the function of the prison. T h e prison is looked upon not as a professional problem of the highest complexity, requiring men of great knowledge and ability; not as an institution containing three or four thousand persons needing suitable employment or educational activity; but rather as an institution for the repression and control of the dangerous. For that purpose the higher type of individual is not available. Not until we recognize that a prison is a great opportunity for broad educational endeavor shall we attract the kind of administrator who is needed. That is one of the first needs of the prison, a new type of institutional head, a type of administrator who could be called as the president of a great educational institution. Until then we shall make progress slowly, if at all. 1 2

S o u r c e : Handbook of American Prisons and Reformatories, 1933. T h i s salary almost always carries an addition of house, food, and servants.

306

CRIME AND THE

COMMUNITY

9. The Guards T h e position of the guard in relation to the prison is pivotal. Upon his competence and l o y a l t y , upon his resourcefulness and tact, depend both the s a f e t y of the prison and the spirit of the prisoners. T h e position that the guard occupies m a k e s him the first line of attack in attempted escapes and the most immediate instrument for the proper handling of the prisoners. T h e best of wardens would fail if he had a disloyal and incompetent group of officers under him. I t m a y be said equally that almost a n y warden would succeed if his officers were able, tactful, loyal, and honest. One official report said on this s u b j e c t : The conduct of the lowliest guard or watchman is observed as closely as possible by the prisoner who sees in him the State. . . . Any deviation from standards of honor and honesty will be speedily observed and will speedily destroy all hope of gaining the confidence of the inmates. T h i s m a k e s the choice, the p a y , the opportunity for advancement, the conditions of labor, the relations permitted between the guards and the inmates, all elements in securing acceptable and desirable material for this important office. A p p o i n t m e n t is generally b y the warden and is o f t e n subject to political pull.

T h e r e are, practically speaking, no

standards. And apart from one or two exceptions, of very recent origin, no training is either required or given. T h e p a y is so low that it is impossible to secure a n y but the least competent.

One report in Illinois

said: The position of the guard is well-nigh intolerable. His salary is ridiculously low and far less than that which can be earned even by the most incompetent mechanic. His hours of labor are very long—sometimes 16 hours a d a y — a n d he is himself virtually a prisoner. His isolation is cruel, as under the rules which exist in Joliet, at any rate, he is not allowed to converse with the prisoners.1 T h i s description of Joliet gives a fair picture of the position of the g u a r d in most prisons. One student of the problem s a i d : " P r a c t i c a l l y e v e r y prison and jail in the c o u n t r y is not only undermanned, but prison officers are underpaid." T h e undermanning is responsible for the long hours of labor. T h e poor p a y is responsible for the great turnover among prison officers. T h e N e w Y o r k C r i m e Commission reported in 1930, " A t times the turnover is so great that untrained rookies are asked to JThe

Illinois

Crime

Survey,

p. 454. Since this went to press Illinois has introduced an

e i g h t - h o u r shift for guards and made other improvements in their position. System

in Illinois,

pp. 239-240.

The

Prison

THE

PENAL

307

SYSTEM

occupy positions within the prisons that should be filled only by experienced men." 1 For 1929 the same commission said: " I n one prison, solely because of the poor pay and the strenuous responsibility of guards, the guard employment turnover is 50 per cent in a year." 2 This is no isolated experience. The first essential is adequate remuneration. The pay of guards begins at the low minimum of $540 a year in one prison ; and in this institution the maximum possible is $600. In three other institutions the guards begin at $600 a year. In one of these institutions the maximum possible is $660. Altogether there are seven prisons where the minimum is under $700 and four institutions where the maximum is less than $725 per year. The table below gives the minimum and maximum salaries of the guards in 86 prisons and reformatories for the year 1928. CLASSIFICATION OF THE M I N I M U M AND M A X I M U M SALARIES OF THE GUARDS IN 8 6 PRISONS AND REFORMATORIES,

Salary Range

Minimum Salary Number of Prisons

19283 Maximum Salary

Per Cent

Number of Prisons

Per Cent

7

8

3

$700-1899

11

13

6

7

$goo-$999

12

14

8

$iooo-fic>99

13

IS

7 8

$noo-$i299

12

13

15

$1300-11499

10

M 12

$I500-$I599

8

9

7

8

12

M

16

1

I

14 9

il

86

100

86

100

Less

than

$700

$i6oo-$i999 $2000 or more Total

19

4

9

22

Of these 86 institutions, 19 have only one salary figure, the maximum and the minimum being the same. This means that in these institutions there is no opportunity for promotion whatsoever. 4 Even in institutions where promotion is possible it is still insufficient, said the New York Crime Commission. "There is little opportunity for advancement in rank or emolument." This lack of opportunity for advancement, together with the low wages, makes it difficult to attract and keep the best type of prison ' N e w Y o r k Crime Commission, Special Report on Penal Institutions, 1930, p. 7. N e w Y o r k Crime Commission, 1929 Report, p. 1 4 1 . ' S o u r c e : Handbook of American Prisons and Reformatories, 1933. 4 T h e Illinois Prison Inquiry Commission states, " T h e general rule seems to be, once a guard, always a guard." Op. cit., p. ISS2

308

CRIME AND THE

COMMUNITY

officer. T h e table shows that in 64 per cent of all our prisons and reformatories the minimum salary is 81300 or less and that in 65 per cent of all our prisons and reformatories the maximum salary is $1500 or less. Taking all the prisons and reformatories for which we have salary schedules, we find that 35 per cent pay a minimum of 81000 and 28 per cent pay a maximum of 81100. With this in mind it is not surprising to find that one of the greatest problems is to maintain a staff of guards who can be trusted to be honest. The N e w Y o r k Crime Commission said: "Certainly it is a severe test of character for a guard to maintain his honesty and his courage against a desperate convict of murderous instinct, with money available for bribery." How serious a situation may develop is illustrated by the experience of the Eastern Penitentiary in Philadelphia. In 1926 the new warden of that institution, speaking before the American Prison Association, said: A majority of the guards were men who had been given positions for some political work that they had done, or who couldn't be employed elsewhere, and a large proportion of them were corrupt. . . . There were 110 guards when I took charge, and in two months I discharged 95 of them.

These difficulties, arising from low pay and lack of opportunity for promotion, are still further complicated by the long hours that the guards have to work. Seventy per cent of the guards in 86 prisons and reformatories work 10 hours a day. Fourteen per cent of the prisons and reformatories give 10 days a year as vacation, and 61 per cent give two weeks a year. Six per cent of the prisons and reformatories give no vacation whatsoever. Besides the low wages and long hours, the prison duty is one taxing both the patience and the good humor of the keepers, as the following excerpts make clear: Every regulation enforced upon prisoners is a constraint upon the g u a r d ; he is under constant tension, further irritated by minute encroachments from an idle and sometimes illhumored convict group. The life of the guard, except for his privilege of leaving at night . . ., is in many instances more unpleasant than that of the convict; in the evening when the convict reads the guard must watch. 1 There are periods when very tense situations arise, and this opposition between inmates and guard becomes epidemic. There are guards who themselves develop a perversity and sometimes a cruelty which is hard to be accounted for, even by themselves. 2 JA.

A. Bruce, A. J. H a r n o , E . W . Burgess, J. Landesco, " T h e Workings of the Indeter-

minate Sentence L a w and the P a r o l e System in Illinois," Journal Criminology,

V o l . X I X , N o . i, P t . I I ( M a y , 1928), p. 199.

of Criminal 2Ibid.,

Law p. 175.

and

T H E PENAL SYSTEM

309

T h e tense situation, the long hours, the absence of companionship and understanding between guards and inmates, may often result in tragedy. A study of conditions in the department of correction of N e w Y o r k City revealed that " i n recent years 4 prison guards had committed suicide and that 1 0 had gone insane." 1 T h i s friction and conflict is responsible for conditions in the prison which are most undesirable. T h e report of the Prison Inquiry Commission in New J e r s e y in 1 9 1 7 , headed by Dwight W. Morrow, made the following c o m m e n t : 2 There can be no doubt in the mind of anyone who has carefully examined the recent history of the prison that many of the men who have passed years of their lives in controlling prisoners under the repressive conditions that have existed at Trenton, constantly conscious of the necessity of self-defense, under the conditions which they were themselves helping to create, have by their very training become temperamentally unfitted to serve in the important capacity of a prison keeper; that it is one of the first duties of a new management of the prison to carefully consider the prison personnel and by a proper exercise of the procedure of the civil service law to provide for the discharge or retirement of those who are upon examination found unfit for the performance of their duties. Former Warden J . S. Blitch of the Florida State Prison said at the American Prison Association Congress: We have found that the guards are probably the most objectionable feature in the handling of prisoners. We do not pay guards enough to get good men, and a large per cent of them are ignorant and brutal, and when given a gun and put in charge of a crew of men they have reached the height of their ambition. . . . This same condition was commented upon in similar vein by repeated legislative reports on the T e x a s prison system. T h e problem of the guards in penal institutions is one of the most serious that the warden has to face. Such improvements as better p a y , shorter hours, longer vacations, a regular day off during each week, and opportunity for promotion would go f a r toward meeting this problem. These things can and must be remedied if we are to approach an adequate penal system. There are, however, the more difficult problems of tenure, of training, of internal administrative changes which would make out of the guard's job a creative opportunity to contribute to the broader purpose of the prison. In that direction the Federal Bureau of Prisons has recently made an important contribution b y establishing a school for prison officials. 1 3 . W . Brewster, Warden of District Prisons, N e w Y o r k City, in Proceedings Annual Congress of the American Prison Association, 1928, p. 227. 2

R e p o r t of the Prison Inquiry Commission of N e w Jersey, 1 9 1 7 , p. 73.

of the 28th

310

CRIME AND THE

10.

COMMUNITY

Education

N o picture of the American prison system would be complete if it did not include a comment on what is being attempted as to education. In an exhaustive report on the education of adult prisoners, Austin H. MacCormick, then Assistant Director, U. S. Bureau of Prisons, said: " N o t a single complete and well-rounded educational program adequately financed and staffed was encountered in all the prisons in the country/' T h i s general statement is reinforced by the following specific evidence: T h e r e is no educational p r o g r a m in 13 of these prisons:

Alabama, Arizona,

F l o r i d a , G e o r g i a , I d a h o , Mississippi, M o n t a n a , N e v a d a , N e w M e x i c o , O r e g o n , S o u t h C a r o l i n a , the B r u s h y M o u n t a i n P e n i t e n t i a r y in T e n n e s s e e , and the M i c h igan prison at M a r q u e t t e .

I n a b o u t a n equal n u m b e r the educational w o r k

m a k e s little more than a h a l t i n g a n d g r u d g i n g b o w to State laws requiring t h a t e v e r y prisoner

( w i t h liberal exceptions m a d e b y the warden a n d

industrial authorities) shall be g i v e n a third or fifth g r a d e education.

the

I n less

t h a n a d o z e n prisons t h e w o r k is extensive e n o u g h or effective enough or s u f ficiently

well supervised to rise a b o v e the level of m e d i o c r i t y . In the remainder,

c o n s t i t u t i n g about half of all the prisons in the c o u n t r y , the educational w o r k h a s little significance in spite of t h e conscientious efforts of those in charge and the i n m a t e s w h o w o r k under them. 1

Illustrative material may be taken from various prison reports. Speaking of Auburn prison, the New Y o r k Prison Commission said: O n e civilian teacher and no schoolhouse is the striking evidence at this prison of the general lack of educational facilities for prisoners at all the State prisons. A t A u b u r n , school is now k e p t in a n a b a n d o n e d shop.

T h e r e is no p l a c e t o

k e e p it. 2

The Montana State Crime Commission reported in 1930 as follows: O n e of the great needs of the M o n t a n a State Prison is some form of educational w o r k p r e f e r a b l y along v o c a t i o n a l lines. N o facilities are now a v a i l a b l e for g i v i n g a prisoner, w h o might h a v e the desire for it, a n y training or education to fit h i m for a more useful life a f t e r he leaves the institution. T h e great, m a j o r i t y of men w h o c o m e there are untrained in a n y trade or vocation. A v e r y l a r g e p e r c e n t a g e of t h e m are a l m o s t or entirely illiterate.

T h e y spend their

1 Austin H . M a c C o r m i c k , The Education of Adult Prisoners, p. 39. N e w Y o r k , 1931. T h e Prison Industries Reorganization Administration in 1936-1937 reported no vocational education w h a t e v e r in Arkansas (p. 18 of Prison Labor Problem in Arkansas) ; in West Virginia, no paid teacher or outside volunteer (p. 33 of the study for that state) ; inadequate facilities in T e x a s (pp. 46-66), in Tennessee (pp. 6 3 - 6 8 ) , in O k l a h o m a (pp. 3 5 - 3 9 ) , and in M a r y l a n d (pp. 22-23). 2New

Y o r k Prison Commission, 1929 R e p o r t , p. 147.

THE PENAL

SYSTEM

311

time in absolute idleness, acquiring habits of sloth. Of the 700 men and over in the prison at the time of our survey, about 450 are idle all of the year around. Except for a brief period of exercise they take daily in the prison yard, they spend their whole time loafing in their cells.

Furthermore, the prisons of the United States offer little vocational education and no opportunity for schooling beyond the lower grades. This is an interesting commentary upon our prisons in view of the large interest in adult education that has developed in the United States since the war. It is an amazing fact that not one prison has an organized program of vocational education, although many prisons claim with some justification that their prisoners receive vocational training incidentally in the industries or maintenance work of the institution. A few prisons offer scattering vocational courses, usually conducted by correspondence and seldom with sufficient correlation of theoretical instruction and practical application. T h e need and the desire for vocational training and its value in stimulating interest in academic education are so patent that the almost complete absence of provisions for vocational education in our prisons is difficult to understand. There is also little educational opportunity for the prisoner who wishes to advance beyond the lower grades or who already has education enough to fit him for advanced study. Little is done to offer nonutilitarian, cultural education to the few who desire it and, at the other end of the scale from the practical standpoint, little is done to give health education to the large numbers who need it. T h e educational work of most prisons, in brief, consists of an academic school closely patterned after public schools for juveniles, having a low aim, enrolling students unselectively, inadequately financed, inexpertly supervised and taught, occupying mean quarters and using poor equipment and textual material. 1

What these shortcomings mean is seen from MacCormick's evidence : Picture a not unusual prison school. A few illiterates are learning to read a book that tells how T o m m y and Susie went out to catch butterflies or that rhapsodizes on the subject of how soft and warm Pussy's coat is. A few strays who are attending school from a variety of motives are studying arithmetic or history or geography from ancient and dog-eared textbooks written for juveniles.

A few foreigners are being " A m e r i c a n i z e d " by being taught that

United States Senators are elected every six years.

A handful of men are

studying "vocational courses" in bookkeeping, business English and show-card writing. T h e teacher is the chaplain, an underpaid guard, a city school teacher who has already done a hard day's work in his own school, or an inmate who got the job because he has somewhat more education than his fellows but who has had no previous teaching experience and is now receiving no training in 1

MacCormick, op. cit., p. 40.

312

CRIME AND THE

COMMUNITY

teaching technique. Study outside of the classroom, if required at all, is pursued in a dingy, one-man cell occupied by two men and lighted by a 20-watt bulb, or in a noisy, crowded dormitory lighted only by naked bulbs suspended high above the beds. T h e schoolroom is a dimly lighted, smelly mess hall, a chapel with a sloping floor and stationary seats into which the students are crammed without room for desks or tables, the lower corridor of a cell block, or a room in the basement, in a made-over section of the main-building, or in a remote and inaccessible building in the prison yard. This is a somewhat exaggerated picture, but the writer can take the skeptic to no less than 50 prisons and reformatories where the educational program rises very little, if at all, above these heights. . . . History being taught from texts that were published before the World War, and reading from primers published as far back as 1868; 75 men of all ages crammed into the only classroom in the prison; seated on backless benches without desks, taught under the district school method by an earnest but untrained chaplain, and searched by guards on entering and leaving the classroom; 60 reformatory inmates in a single room, taught by an untrained inmate under 20 years of age, with a sleepy, stupidlooking guard perched on a high stool in the front of the classroom to keep order; guards conducting classes with hickory clubs lying on their desks; guardteachers, after a hard day's work in the school, "swinging a c l u b " over their erstwhile pupils in the cell houses and mess h a l l ; a $130 a month guard in charge of the educational work in a 3,000-man penitentiary; men studying in the prison of one of the wealthiest States in the country by light of 15-watt bulbs; rules forbidding prisoners attending school to have writing material of any kind in their cells; educational " s y s t e m s " which consist of allowing prisoners without guidance, to purchase correspondence courses far beyond their ability and to follow them without assistance; schools that are nothing but dumping grounds for the industries, places of temporary sojourn for men who have not yet been assigned to work, or convenient roosting-places for yard gangs that are called on occasionally to unload cars of coal and other supplies; libraries in which there are not more than a dozen up-to-date books possessing educational value; and so on almost endlessly. 1

This description shows at least one thing. Our prisons can make no claim that they are attempting to utilize for broad educational ends the opportunity provided by the large amount of unoccupied time within the prison. This general judgment of the prison is made of the reformatory also. Aside from their failure from the standpoint of reform, with few exceptions the reformatories have failed as educational institutions. In the greater number this is due to the fact that education has become a mass-treatment process 1

M a c C o r m i c k , cp. cit.. pp. 40-43.

313

THE PENAL SYSTEM

in which a stereotyped routine is followed. Individualization is almost totally lacking. . . . The reason for this condition is not that reformatory officials believe in the type of education described above. They can not believe in it, for they have seen it fail year after year with their prisoners. They know that many of the prisoners look on educational work as something to be avoided and to be got through as easily as possible if one cannot avoid it. They know that many of their graduates never follow the trades in which they have been instructed while in the reformatory and that others find themselves unable to meet the standards of competitive production because they have been inadequately trained. Reformatory officials are placed in a position of unwilling insincerity in that they must claim to be operating educational institutions, knowing that they are failing. 1

11.

The Reformatory

for

Men

T h e foregoing description of the American prison applies with equal force to the men's reformatories. Inclusive of the Federal reformatory, there are only 20 r e f o r m a t o r y institutions.

T h i s is a significant fact in more w a y s than one.

The

reformatory m o v e m e n t began in 1869 with a great flourish as a new and far-reaching a t t a c k upon the older penal system.

I t w a s to introduce

into the penal field an institution that would take the younger prisoner and save him f r o m contact with the older and more hardened one.

It

was to be an educational institution concentrating upon the reconstruction of character, the rehabilitation of the younger men, and their return to society.

U n f o r t u n a t e l y these early hopes have not materialized.

If

there was a n y doubt of this before, the study b y the Gluecks of the reformatory a t C o n c o r d , Massachusetts, made in 1930, is conclusive. T h e r e f o r m a t o r y does not reform.

T h e reason lies in the f a c t that,

generally speaking, it is not a reformatory at all. It belies its name. One report speaks of R a h w a y R e f o r m a t o r y as " a prison with r e f o r m a t o r y features rather than a reformatory pure and simple."

It is perhaps a

prison for junior offenders. B u t even this m a y be doubted. A report in 1932 on one of the reformatories maintained b y the city of N e w Y o r k supports this general analysis. Sweeping condemnation of the attitude toward young prisoners and the routine of their incarceration at New Hampton Reformatory, New Hampton, N. Y., is contained in a year-long survey completed yesterday by Dr. Nathan Peyser and presented to Richard C. Patterson Jr., Commissioner of Correction, whose department supervises the institution. ' I b i d . , pp. 274-276.

314

CRIME AND THE

COMMUNITY

Dr. Peyser was chosen at Mr. Patterson's request by the Education Department for his knowledge of juvenile delinquency and psychology. His report condemns the underlying attitude toward adolescent prisoners as one of incarceration rather than of social rehabilitation. It abounds with details of their prison life and makes more than eighty recommendations for changes designed for the social betterment of the inmates, whose average age is just below 19 years. Mr. Patterson received the report with the comment that it "laid the groundwork for a complete revolution in the handling of prison inmates in New York City." D r Peyser is the principal of P. S. 1 8 1 in Brooklyn, and has made several similar surveys. " T h e institution is definitely a jail," he wrote. " I t s name is a misnomer. Reeducation and rehabilitation, the reformation of inmates, is not consciously accepted as a goal by institutional officials and does not enter, even incidentally, as a factor in the conduct of the reformatory program. The sole objective of the warden and his assistants is the safe incarceration of the men. Their especial consideration is the prevention of escapes, and their particular pride is their success in this direction. The keeping of prisoners until full time has been served, rather than their restoration to social normality, is the desideratum." The "absolutely impersonal" attitude of the custodial force toward 700 inmates ranging from 16 to 29 years is assailed by Dr. Peyser. Lack of classification and segregation throws first offenders into daily contact with hardened criminals, and he says there is no one to whom the younger inmates can turn with their problems. Describing the daily routine of prisoners as a "deadly monotonous grind," Dr. Peyser says: "Awakened at 6:30 the boys are taken to washrooms for the only wash of the day. There are no toilets or washing facilities in the cells. Setting-up exercises at 7:30 are followed by breakfast at 8. At 8 : 2 5 the boys are marched out in gangs for their day of hard labor. More are employed in excavating, road work and farming than in any other fields. This, despite the fact that practically all are city bred. At 1 1 : 3 0 the farm laborers are marched back for lunch; at 1 2 : 2 0 they return to the work gangs. At 3 : 4 5 they return to the yard and almost immediately have their evening meal. " B y 4 : 1 0 or 4 : 1 5 extreme quiet has fallen on the institution. This regimen is not only cruel and wasteful but is morally harmful. Most of the boys are adolescents. They are locked in their cells from 4 : 1 5 p.m. to 6:30 a.m., more than fourteen hours a day, to their emotional and mental injury. " T h e situation is aggravated in inclement weather when this work cannot be performed. No recreative program has been developed, and the boys remain idle throughout the day, herded together in a poorly lighted, badly ventilated, inadequately spaced room, significantly called ' T h e Black Hole.' Few of them read, very little conversation can be had ; games cannot be played. They pass the day waiting for 4 o'clock when they can be locked up for the night."

THE PENAL

315

SYSTEM

Dr. Peyser found that each inmate received one set of poorly fitting clothing and one set of underwear, which had to be worn for at least a week without change. Their footwear is inadequate and they have no overshoes for ditch work. He said the "feeling of cleanliness, so essential to development of a sense of decency and self-respect, cannot exist and be made the instrumentality for the moral strengthening of the boys." Dr. Peyser's program would make the reformatory a social diagnostic laboratory to ascertain the causes of social failure, correct these and send inmates out as rehabilitated human beings. He asked first that the Correction Department commit itself to this attitude, rather than the attitude of mere incarceration. He asked for a director of education, psychologists, neurologists, psychiatrists, recreational organizers, educational counselors and teachers of vocational and non-vocational subjects. 1 T h e age grouping of the men in the reformatories overlaps with that of the men in the prisons of the country. T h i s can be seen from the fact that in 1928, out of 49,901 admissions to 52 prisons, 26,975, or 54 per cent, were of persons under 30 y e a r s of age and 9 per cent were under 20. Records of admission available for 1930 in the case of 32 prisons showed 56 per cent under 30. If we compare the admissions into 52 prisons and 18 reformatories in 1928, w e find that the group between 20 and 30 years of age constituted 45 per cent of the total received b y the reformatory. W h i l e the average age of the inmates in reformatories is lower than the average for prisons, there are men of mature age in the reformatories. In Massachusetts men m a y be sent to the r e f o r m a t o r y up to the age of 40. W h a t is true of age is true in a general w a y of time served.

The

average time for all prisoners is a little over two years. T h i r t y per cent of recent commitments to the Federal prisons were for one year.

The

average period served in Concord for the group studied b y the G l u e c k s was 21 months. T h i s is typical of the reformatory sentence. N o r are v e r y long sentences to reformatories unknown.

The

Massachusetts

R e f o r m a t o r y , for instance, noted in a report of 1931 the sentencing of eight prisoners to that institution for ten years, six for twelve years, and one for fifteen years. 2 T h e reformatory building is architecturally a typical prison building, differing not at all from the ordinary prison. " E l m i r a has old cell b l o c k s , lNew York Times, September 27, 1932. Since this report w a s made, the 1934 report of the N e w Y o r k Commission of Correction states that inmates at N e w H a m p t o n are n o w allowed to play checkers, dominoes, etc. in the corridors f r o m 5 P.M. to 6 P.M., w h e n t h e y are locked in their cells and allowed to read until the lights are extinguished at 9 P.M. 2

Massachusetts D e p a r t m e n t of Correction, A n n u a l Report, 1931, p. 57.

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C R I M E AND THE COMMUNITY

lacks plumbing in the cells, and the prisoners have to use the loathsome bucket system." T h e superintendent of another reformatory said: " T h e reformatory work of the country has been handicapped by copying that construction and trying to run the reformatory idea in a prisonlike building which emphasizes every day the idea of punishment." It suffers from the same evils of inside cells, congregate housing, lack of adequate ventilation, and overcrowding. A description of the reformatory in Illinois had this to s a y : Routine in an overcrowded reformatory means routine meals, routine work (interesting or uninteresting), routine drill, routine baths, routine shaves and hair cuts, uniforms and routine changes of clothing, routine turning out of the lights at night, and every motion of life is routine and under written or oral regulation, minute and rigorous. The cellhouses are overcrowded; a considerable number of cages are used and farm hands on the semihonor basis are sleeping in an overcrowded, open dormitory, not in cells. These cells were originally intended for a single person, and they are now used by two or three. Compared to cells in Joliet or Southern Illinois Penitentiary, they would be comfortable if they were not overcrowded. Overcrowding limits the possibility of segregation of first offenders from the habitual or professional criminals and throws the first offender into association with youths brought up in an environment inimical to official authority. 1 T h e reformatory also resembles the prison in size. While there are a few prisons which are larger than any reformatory, taken as a whole the reformatories tend to be larger than the prisons. Taking all our prisons and reformatories, we find that 45 per cent of the first and 52 per cent of the second have more than 1000 inmates each. While more systematic attempts at education have been made in the reformatory than in the prison, that education has achieved little. T h e schooling is underequipped, understaffed, formal, insufficient, and generally fails to overcome the evil influences of the prison and the companionship of the other inmates who are schooled in crime. Ten teachers are in charge of the instruction but—and here lies the main difficulty—a considerable number of these are really hired as guards and do guard duty after school and on Sundays and holidays. To assume that their qualifications are those for guards rather than for teachers would be, generally speaking, fair; and it must be borne in mind that guards are politically appointed.2 1 Bruce, Harno, Burgess, Landesco, op. cit.. p. 173. The Illinois situation was relatively unchanged in 1937, when the Illinois Prison Inquiry Commission found Pontiac 5 0 % overcrowded and the population "classified but not properly segregated." Op. cit., p. 281. 2 B r u c e , Harno, Burgess, Landesco, op. cit., p. 165.

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There is a similar failure in the matter of vocational education. There is lack of provision for teaching a sufficient number of trades, or teaching them well enough to make a technician out of the inmate. A t Frankfort, K y . , in 1936, the only vocational instruction available to the 2698 inmates was that offered in classes in bookkeeping and stenography. 1 Nor is the reformatory an industrial shop where the labor required suffices to inculcate the habit of regular work at a task that may be found in the outside world. In one or two institutions where regular factory work has been provided, it has been contract work, the making of shirts, for instance, an occupation that does not fit the individual to earn a living upon release. Outside of prison this work is done by women and girls. What is true of the age of inmates, of time served, of the school, of size, and of work, is true also of discipline in the reformatory: the reformatory shows substantially no difference from the prison either in the objectives or in the methods of discipline. The same ends are sought, the same methods are employed to achieve them, as in the prisons. T h e customary method is the deprivation of privileges, loss of good time, confinement in isolation, placing in dark cells, keeping of inmates on bread and water, handcuffing to the cell doors. Only in the case of whipping do the reformatories seem to differ from some of the prisons. What is here emphasized is that the reformatory is not a reformatory at all. It is a prison for a somewhat younger group of inmates. It serves as an introduction to the prison system for the younger prisoners, who have their first taste of a regular prison in a reformatory. In spite of the fine program with which it was initiated, the reformatory has not been staffed with an essentially different type of personnel. The older prison warden and the older prison guard both found nesting places in the reformatory and carried over to it essentially the methods in vogue in the prisons at the time that the reformatory movement had its beginnings. It seems very doubtful whether the reformatory can be saved for the purpose of serving its original objectives. As it stands it is so much a prison that adaptation to new methods may not prove feasible. It is possibly true that with a wider extension of probation many men such as now find themselves in reformatories, especially if they are first-timers, will not be sent to institutions at all. It is also probably desirable to make a rather sharp distinction between the young men under 20 and those over that age. T h a t would involve a change in the laws that at present regulate the admission of prisoners to reformatories. But if that were done there would be much doubt of the wisdom of 1The

Prison Labor Problem in Kentucky,

p. 10.

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CRIME AND THE

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sending men under 20 to institutions of the type now classed as reformatories. It seems best to argue for inclusion of the present reformatory buildings within the larger scheme of penal institutions, frankly accepting the present reformatory as a prison and using it as one of the separate units in the distribution of the prison population. If a reformatory system is to be maintained apart from the general prison system, then a very different and distinct type of institution will have to be developed.

12. The Reformatory

for

Women

What has been said as to our prisons and reformatories does not apply to the best of the women's reformatories. They have been leaders in a new type of penal administration. This seems true from every point of view. In their building program, their health and educational program, their methods of discipline, their internal inmate responsibility, their recreational program, and their follow-up work after release they have set an example which the other institutions might well emulate and from which they might learn much which would be useful even to the most difficult of adult prison groups. About half the States keep their serious women offenders under the control of the wardens in charge of the men's prisons. This is now generally recognized as an undesirable practice. A good description of women's institutions is given in the 1929 Handbook of American Prisons and Reformatories} In over half the States women prisoners are still confined in sections of the State prisons for men. Their number is small in comparison with the male prisoners and they are generally provided for inadequately. . . . I t is generally recognized that women have no place in prisons designed and operated primarily for men, where they are under the ultimate authority of male officials, who have little aptitude or training for their care and who frankly consider them a nuisance and a constant source of danger. In States where their number is so small that a separate institution is not practicable, proper provision for them presents a difficult problem. Granting the arguments against such an arrangement, they could better be given a separate section in a girls' reformatory than in a men's prison. It has been suggested that they be attached to State hospitals and employed in the domestic work of such institutions. It is certain at least, that the present situation should not be tolerated, and that in all States they should be given adequate quarters, supervision, and treatment. i p . xxxii.

THE PENAL

SYSTEM

319

In California, Georgia, Illinois, Missouri, and Oklahoma the prisons for women are semi-independent, although they are still a part of the prisons for men. In these States the women's prisons are separated physically but not administratively from the men's prisons. None of the sections for women in this group reaches the standard set by the better women's reformatories. They should be made completely independent of the men's prisons and should be conducted on reformatory rather than prison lines. In the following 12 States reformatories for women have been established: Connecticut, Indiana, Iowa, Kansas, Maine, Massachusetts, Minnesota, Nebraska, New Jersey, New York, Ohio, and Pennsylvania. The Federal reformatory for women at Alderson, W. Va., was opened in 1928. These reformatories represent a marked advance in methods of caring for women prisoners. From many of them, particularly those of Massachusetts, New York, New Jersey, Pennsylvania, Connecticut, and the Federal reformatory, the institutions for men can learn valuable lessons. The reformatories . . . are characterized by a forward-looking attitude and a proper recognition of their function as that of rehabilitation. . . . An effort is made in the work of the institution to give vocational training, especially in domestic occupations, and to select industries which have training value. Academic education, while usually limited in scope, is more often correlated with practical activity than in men's institutions. Music, dramatics, pageants, physical education, directed recreation, and other broadly educational activities are promoted. Some form of inmate community organization is in existence in all the more progressive reformatories and is considered an essential aid in the development of a sense of responsibility to the social group. The reformatories for women usually have good buildings, with attractively furnished living rooms and dining rooms, and individual bedrooms instead of cells. The grounds and buildings of the Federal reformatory, for example, would be a credit to a fine school or college. Individual analysis and direction is customary and a number of competent psychologists and trained social workers are to be found in these institutions. Their parolees receive more careful supervision than those of men's institutions, in spite of the fact that the parole work is usually understaffed. The defects of the women's reformatories are not defects of spirit and purpose. They often have too small staffs and too many underpaid and poorly trained minor officials. They often have insufficient appropriations and their interests are subordinated by legislators to those of the State prisons. They deal with a type of offender difficult to reclaim. It is a reflection on society that their parolees have a harder fight to make good than men. In the main, however, they are at present the most hopeful of our penal institutions. Effective assistance could be rendered the reformatories and their charges by sustained and intelligent support from the organized women's clubs of the various States. This support is fully justified by the work which they have done in spite of the difficulty of their problem and the handicaps which they have to overcome.

320

C R I M E AND T H E COMMUNITY

13. The County Jail Students and observers have long since been cognizant of the deplorable state of our county jails. Therefore no detailed description of them is necessary. I t m a y , however, be of interest that penologists from other lands concur in the general condemnation of our county jails frequently voiced by American students and publicists. The following comment is from the pen of a distinguished German penologist: There are no words to describe the almost medieval conditions in [the county] jails. Usually no distinction is made between those who have been sentenced and those who are awaiting trial and who perhaps are innocent of any offense. There is no provision for giving the prisoners adequate work or exercise in the open air. In the matters of light and air, sanitary and hygienic conditions, the cells can without exaggeration be compared to stalls for animals, and at that to the neglected stalls that might have been found in country districts at least half a century ago. Furthermore, in many cities the jails are, as a regular thing, obliged to receive double and triple the number of inmates that they were built to accommodate. . . . But on the whole, one must say that the jails are in striking contrast to the kind of institution that one has a right to expect of a civilized nation of the twentieth century, and that Americans especially, because of the important part that they have played in the past in the development of an intelligent and social prison system, ought to bestir themselves with far more energy than they have thus far shown to abolish these unworthy conditions.1 Attempts to improve jail conditions by centralization of control in State authorities have been made in Alabama, Colorado, Michigan, Minnesota, New J e r s e y , N e w Y o r k , North Carolina, Rhode Island, South Dakota, and Virginia. It seems evident that there is much to be hoped for from such a policy. So many of the counties are both so small and so poor, and so many of them have so few prisoners at any one time, that a demand upon them to maintain well-equipped and well-staffed county jails is unjustifiable. This fact is important in justifying State control of county jails. Such control makes possible the establishment in convenient locations, and under proper supervision, of central jails for county prisoners. It makes possible the utilization of the labor of these county prisoners on adjacent f a r m s ; the segregation of prisoners awaiting trial from those serving sentence; of the young from the old; of one sex from the other. As our jails stand at present none 1 M . Liepmann, "American Prisons and Reformatories; a Report," in Mental Vol. X I I (1928), pp. 331-232.

Hygiene,

THE PENAL

SYSTEM

of these desirable objectives are achieved.

321

It seems best therefore

to urge the adoption by other States of the policy of centralized control over county jails. BIBLIOGRAPHY American Prison Association. Proceedings, 1870 to date. (Annual volumes containing much useful material presented by speakers at the annual congress of the Association.) American Prison Association. State and National Correctional Institutions of the United States and Canada. Official, June, 1933. (A directory of officials and institutions, with statistical information on the prison population.) The Annals oj the American Academy of Political and Social Science. "Prisons of Tomorrow." Vol. 157 (September, 1931). BARNES, HARRY E. The Evolution of Penology in Pennsylvania: A Study in American Social History. Bobbs-Merrill Company, Indianapolis, 1927. BENNETT, JAMES V. "American Prisons—Houses of Idleness." The Survey, April, J93S (Vol. L X X I , No. 4), pp. 99-101. BROCKWAY, Z. R. Fifty Years of Prison Service. Charities Publishing Committee, New York, 1912. DAVISON, ROBERT L. "Prison Architecture." Architectural Record, Vol. 67 (January, 1930), pp. 70-100. FISHMAN, JOSEPH F. Crucibles of Crime. Cosmopolis Press, New York, 1923. GLUECK, SHELDON, and GLUECK, ELEANOR. Five Hundred Criminal Careers. Alfred A. Knopf, Inc., New York, 1930. HART, HASTINGS H. Plans and Illustrations of Prisons and Reformatories. Russell Sage Foundation, 1922. "Police Jails and Village Lockups." Special Report to the National Commission on Law Observance and Enforcement, pp. 327-344 of the Report on Penal Institutions, Probation and Parole, No. 9, 1931. HOPKINS, ALFRED. Prisons and Prison Building. Architectural Book Publishing Co., New York, 1930. Illinois. The Committee on the Study of the Workings of the Indeterminate Sentence Law and of Parole in the State of Illinois. The Workings oj the Indeterminate Sentence Law and the Parole System in Illinois. A report by A. W. Bruce, E. W. Burgess, A. J . Harno, and J . Landesco. Chicago, 1928. (Also appears as Part I I of May, 1928, issue of the Journal of Criminal Law and Criminology, Vol. 19, No. 1.) Illinois Prison Inquiry Commission. The Prison System in Illinois. 1937. LBKKERKERKER, E. C. Reformatories for Women in the United States. J . B. Wolters, Groningen, Netherlands, 1931. LIEPMANN, M. "American Prisons and Reformatories : a Report." Mental Hygiene, Vol. X I I , No. 2 (April, 1928). MACCORMICK, AUSTIN H. The Education of Adult Prisoners. The National Society of Penal Information, New York, 1931. MCKELVEY, BLAKE. American Prisons. Chicago University Press, 1936. National Society of Penal Information. Handbook of American Prisons: Covering the Prisons of the New England and Middle Atlantic States. G. P. Putnam's Sons, 1925. Handbook of American Prisons. Austin H. MacCormick and Paul W. Garrett, editors. 1926.

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CRIME AND THE

COMMUNITY

Handbook of American Prisons and Reformatories. Paul W. Garrett and Austin H. MacCormick, editors. 1929. New Jersey. Prison Inquiry Commission. Report to Governor Walter E. Edge and the Senate and General Assembly of the State, January 1, 1918. Trenton, NewJersey, State Library, 1917. Vol. 1. Report of the Prison Inquiry Commission. Vol. 2. History of the Penal, Reformatory, and Correctional Institutions of the State of New Jersey, Analytical and Documentary, by Harry Elmer Barnes. O'HARE, KATE RICHARDS. In Prison.

A l f r e d A . K n o p f , Inc., 1923.

OSBORNE, THOMAS MOTT. Society and Prisons. Yale University Press, 1916. The Osborne Association, Inc. Handbook of American Prisons and Reformatories, 1933-

Prison Industries Reorganization Administration. Surveys entitled The Prison Labor Problem in Maryland, etc., Washington, D. C., 1936, 1937. STEINER, J. F., and BROWN, R. M. North Carolina Chain Gang. The University of North Carolina Press, Chapel Hill, 1927.

CHAPTER

X I I I • Prison Discipline

The disciplinary problem is crucial in all penal administration. It determines the influence of the institution upon its inmates. It determines the relationship between the prisoners and the prison officials. It sets the mood and the temper of all other activities within the prison. T o understand the problem of discipline in the peculiar environment of the prison it is essential that we grasp the peculiar features of the prison community. W h y does penal administration frequently break down at this point ?

1. The Fear of

Violence

T h e American prison is an unwieldy administrative unit. It is too large for easy handling. In 1933 there were two prisons with a population of more than 5000 inmates each; there were three with more than 4000 each; three with more than 3000 each; and eleven with more than 2000. Taking reformatories and prisons together, we find there were 50 institutions (or nearly one half of all prisons and men's reformatories) with a population of over 1000 each. T o this problem of size must be added the difficulty arising from the fact that a large proportion of the prison population is young. Of all persons admitted to 52 prisons in 1924, 45 per cent were between 20 and 30 years of age and 9 per cent were under 20. This factor is accentuated in the reformatories, in which the great mass of prisoners are under 30. In 1930 the youth of the prison population was even more evident. For that year 44 per cent of all persons admitted to 32 prisons were between 20 and 30 and 12 per cent were under 20. T h a t means that 56 per cent of all admissions to 32 prisons, not counting reformatories, were of persons under 30. In 1933, of all prisoners received in State and Federal prisons and reformatories, 61.2 per cent were under 30, while 46.7 were between 20 and 30, and 14.5 were under 20. This combination of size and age sets the problem for the warden. It is this large community composed of young men that the warden must keep under discipline and prevent from escaping. The first order to the officers of the Illinois State Penitentiary published in the rule book is, "Preserve order, maintain discipline and

324

CRIME AND THE COMMUNITY

prevent escapes at all hazards." One of the ways of doing this is to "hold no conversation with the inmates foreign to your duties." T h e rules make further provision that "Officers, guards and keepers shall not, under any circumstances, allow prisoners to speak to them upon any subject not immediately connected with their duties, employment or wants." " T h e y shall not permit prisoners to hold any conversation with each other, or with any person whatsoever, except in such instances permitted by the prison rules. . . ." Officers on the walls are instructed that " A t any time prisoners are being marched to or from the yard, shops or mess hall, wall guards shall be outside sentry box with firearms and at strict attention." This rule book goes on to say that the safekeeping of prisoners is the paramount duty and "the rules of the institution require and the laws of the State justify the shooting of them when in a state of mutiny, when offering violence to officers or other inmates or when attempting to escape." These rules, typical of a very large proportion of all penal institutions, indicate a very clear fact, that the penal administration fears possible outbreaks and violence and insists that the guards and officers must be ready at any moment to suppress riot, prevent escapes, and make violence impossible. Here is a large community of young men who are to be kept in safety against their will, even at the hazard of life, by men who are not permitted to hold more than formal converse with them. T h e rules of one prison require that no prisoner shall come nearer than five paces to any officer and that he must fold his hands over his breast with both palms open and visible. Such rules testify to tenseness, fear, and suspicion between the two groups.

2. The Prison

Community

T o understand what makes discipline so difficult, we must study the prison as a community. Prison discipline has broken down frequently just because the warden has failed to recognize that he is dealing with a social phenomenon containing within itself the seeds of social cohesion, moral leadership, and a sense of right and w r o n g — a right and wrong in terms of the attitudes of the prison community, but real and effective none the less. The failure to recognize this fact has accentuated the struggles and contentions of the inmates with the prison officials. The individual culprit within the prison, generally speaking, has the moral support of the rest of the prisoners. It is this that makes his activities possible, and it is this that makes the efforts of the warden difficult and frequently futile.

PRISON DISCIPLINE

325

It has been said, with true insight, that it is the moral support of a group that makes criminal activity possible. This is just as true of the prisoner. As long as he has the support of the other prisoners he is strengthened in his resistance to the warden and prison officials. We have already noted that the prison is large and that it is composed in the main of inmates under the age of 30. The next thing to note is the isolation of the prison community. It is locked in behind high walls and cut off from the world. Its contacts are sharply confined within the walls of the prison. It is something like a little remote community with no egress to the larger world and with a tendency to feed on its own doings. That is important in many ways. It is especially important in shaping public opinion within the prison. All that happens within the prison is of immediate and direct concern to all the prisoners, because the small size of the community and its isolation make every word and every act reverberate within the walls and touch the lives of all the men. That makes all talk, gossip, scandal, gesture, and social pressure a matter of the greatest significance. Perhaps as nowhere else in the world the prison is a place where gossip, talk, and public opinion make themselves felt. The unruly prisoner becomes the hero of the prison. This pressure of isolation, this compulsion of prison life to feed on itself which isolation imposes, is made the more insistent by the great physical proximity in which prisoners are compelled to live. There is, practically speaking, no privacy in the prison. Men are herded like sheep. The prison structure, with its little cells opening on a long, wide corridor, makes every sound and every movement a matter of public knowledge. This proximity is made the worse by the character of the prison's architecture; "the ordinary prison wall, either of glazed brick or of cement plaster with cement floor and ceiling, causes a great deal of reverberation." This explains such rules as the following: "Strict silence must be observed in your cell at all times; talking, laughing, reading aloud, shuffling of feet, drawing chair or night pail across cell floor, or talking from cell to cell is strictly prohibited." Men eat, sleep, work, play, laugh, weep, and attend to the needs of nature, all in each other's presence. What secrets there may be among them must be so deeply hidden as to make no physical imprint upon the behavior of the individuals involved. Under such conditions of close physical proximity the pressure for socialized action is almost inescapable. One must conform if one is to continue living. The irritating elements in human nature must be and are submerged, or the end is war.

326

CRIME A N D THE COMMUNITY

The psychological impact of this proximity is heightened by the curious equalitarianism of the prison. There is perhaps no community of men whose life is poorer, more drab and less tinged with color and interest. There is no other community where men live on such a plane of equality. They have nothing to distinguish them. They all occupy similar cells; wear the same type of clothing; eat the same food; sit at the same tables with the same people, day in and day out, for years; rise at the same hour in the morning; retire at the same time at night; are watched by the same keepers and governed by the same rules; there is no distinction among them. Life holds little, but what it does hold they all share. The physical proximity and the equal drabness of their lives, the confined surroundings in which they live, and the insistent importance of little things—for there are no big ones—give them a sense of unity that is rarely if ever duplicated in the outside world. Further, there is the striking fact of lack of conflict for a living. Here men do not have to compete for worldly goods. There is no fear of tomorrow. There is no fear of hunger, cold, or lack of shelter. All their physical needs are provided for. Men need not struggle and strive to earn a penny; there is no compulsion to develop that niggardliness, that stinginess, that caution and guile which men in the outside world often display in conquering a place of economic security for themselves. The days run on without strife, without economic worry, and without fear, without anxiety for daily bread. This lack of conflict means a certain sociability and a certain ease; men can share the little things they have. They may be said to enjoy their poverty in common. But all this simply goes to make the prison into a community. Its members are so closely bound together in their desperate poverty, their isolation, and their physical proximity that transgression against the group is automatically punished as if by an irresistible judgment. This explains the common hatred of the "stool pigeon," the "snitch" and the "talebearer." He is the recognized enemy of the community and of every member within the community. That is, after all, the essence of public judgment. The New York Crime Commission said on this point: It is common knowledge that there is a prison code among convicts whereby no inmate, whether he be a trusty or a potential parolee, dare inform the warden or any of the guards against another inmate. If such information is given out it soon becomes the knowledge of the entire prison population and results in death to the informer either during his incarceration or after his release. 1 x

T h e New Y o r k Crime Commission, Special pp. 8-9.

Report

on Penal

Institutions,

PRISON DISCIPLINE

327

Again, all the men within the prison are governed by the same authority, and this authority is direct, immediate, imperative, and inescapable. The warden and his guards rule the lives of the men, not in the indirect manner of government in the outside world, but directly and physically. That gives the prisoners a common center upon which to pin their affection or their hatred. Their lives are so pivoted that all that takes place is traceable to the direct authority constantly impinging upon their personalities. The food they eat, the clothes they wear, the rules they live by, the little pleasures they may be denied or granted, the indignities and abuse they suffer, and the cruelties they are made to endure, all visibly emanate from the same immediate and obvious source. I t gives the prison community a definite object upon which to hang its hopes and upon which to visit its hatred. The warden is the all-mighty. From him all pleasures and benefits and all ills and sorrows are derived. Given the intensity of the situation, the men are inclined to credit the warden even with things for which he is not responsible. A man stabbed in the back for a personal grudge may easily convert the occasion into a hatred of Ihe warden by assuming and believing that the warden instigated the act, especially if he has some imaginary reason to believe himself an object of suspicion and fear by the authorities. All this goes to unite the community in its attitudes and beliefs. One other element needs to be mentioned. Much of the prison population has been reared in a world of conflict and passion, of fear and hatred. By the same token it has been reared in a world of simple gang loyalty. Organized crime would be impossible without gang loyalty. Honesty among thieves is no idle virtue; it is a rule of life, for it is the one means to life. The import of all this for our purpose is simple enough. The men bring these habits and interests to the prison with them. While it is true that not all criminals have this as the basis of their existence, it is still true that many have it, and that the worst criminals from the point of view of society are frequently those whose sense of loyalty to their group is greatest. The combination of these factors makes the problem of discipline difficult. The warden tries to keep a community in order by preventing prisoners from violating the rules. Against the force of this community the warden attempts to set up a system of discipline and control for the purpose of making conspiracy within the prison impossible. This explains the rules of watchfulness which the guards must always maintain. This explains also the attempt to prevent any possible collusion, not merely among the prisoners but between the guards and the pris-

328

CRIME AND THE

COMMUNITY

oners. T h e g u a r d s are watched and governed m u c h as are the prisoners themselves. T h e g u a r d must carry nothing in or out of the institution without proper a u t h o r i t y . " G u a r d s must not discuss in the presence of inmates m a t t e r s relating to the discipline or management of this or similar institutions. erated."

Violations of the foregoing rule will not be tol-

T h e y m u s t not even discuss the management of the prison

outside of their duties at the prison. T h e y must receive or give nothing to an inmate even if " t r i v i a l or valueless." " T h e warden shall h a v e the right a t a n y time to search the person or clothing of any officer or employee."

T h e g u a r d , as a matter of fact, must display no interest in

the prisoner. O n e prison goes to the extent of saying that " N o officer or employee shall t a k e a n y action toward securing funds or employment for a n y inmate seeking parole, without consent of w a r d e n . "

He may

not bring newspapers or books into the prison. A l l these rules are bent to the end of discipline. " D i s c i p l i n e ranks second only to safekeeping of prisoners and must be maintained at all h a z a r d s . " T h e officers must use " t h e i r utmost efforts to enforce non-intercourse while marching and strict obedience to the rules and regulations."

3. The Prison Rules W e n o w h a v e a picture of the prison as a community and of the function of the guard. H e is to prevent escapes, he is to keep discipline. H e is to do it b y e n f o r c i n g the rules. W h a t are these rules?

I t would be

impossible to reproduce them all; nor is that essential. T h e y are much alike. T h e rules for w h i c h men are punished in a few institutions are enough. T h e y are characteristic of the range of rules and regulations to be found in the great majority of our prisons. T h e I o w a State Penitentiary has 105 rules for the governing of the inmates, t a k i n g up 28 printed pages of a rule book.

Rule N o . 2

r e a d s : " Y o u m u s t observe strict silence in all departments of the penitentiary and while marching through the y a r d . "

Rule N o . 49 r e a d s :

" S t r i c t silence and decorum must be observed during the meal.

Talk-

ing, laughing, grimacing or gazing about the room is strictly forbidden." R u l e N o . 51 reads : " I f y o u want bread, hold up your right h a n d ; coffee or water, hold up y o u r cup; meat, hold up y o u r f o r k ; soup, hold up y o u r s p o o n ; vegetables, hold up your knife. If y o u wish to speak to an officer a b o u t food or service, hold up y o u r left h a n d . " Rule 75 forbids the f o l l o w i n g : A l t e r i n g clothing, bed not properly made, clothing not in proper order, communicating b y signs, creating a disturbance, crook-

PRISON

329

DISCIPLINE

edness, defacing anything, dilatoriness, dirty cell or furnishings, disorderly cell, disobedience of orders, disturbances in cell house,

fighting,

grimacing, hands in pockets, hands or face not clean, hair not combed, having contraband article on person or in cell, impertinence to visitors, insolence to officers, insolence to foreman, insolence to fellow inmates, inattentive at w o r k , inattentive in line, inattentive in school, laughing and foolish, loud talking in cell, malicious mischief, neglect of study, not out of bed promptly, not in bed p r o m p t l y , not at door for count, not wearing outside shirt, not promptly out of cell when b r a k e is d r a w n , out of place in shop or line, p r o f a n i t y , quarreling, refusal to o b e y , shirking, spitting on floor, staring at visitors, stealing, trading, talking in chapel, talking in line, talking in school, t a l k i n g at w o r k , t a l k i n g from cell to cell, talking in corridor, throwing a w a y food, vile language, wasting food, writing unauthorized letters. T h e N e v a d a State Prison book of rules is t y p i c a l : T h e f o l l o w i n g are c o n s i d e r e d s o m e of t h e o f f e n s e s u n d e r t h e f o r e g o i n g rules, a n d w i l l i n v a r i a b l y b e f o l l o w e d b y s o m e o n e of t h e p u n i s h m e n t s h e r e i n d e s i g n a t e d : A n s w e r i n g t o n a m e in i m p r o p e r m a n n e r , b e d n o t p r o p e r l y m a d e , b e i n g o u t of p l a c e in line, c l o t h i n g not in o r d e r , c r o o k e d n e s s , c r e a t i n g a d i s t u r b a n c e , d i s o b e d i e n c e of o r d e r s , d i s r e s p e c t f u l c o n d u c t of a n y k i n d , d i s t u r b a n c e in cell h o u s e s , d i s t u r b a n c e in line of m a r c h , e s c a p i n g ,

fighting,

hiding out, insolence

t o officers, g u a r d or f o r e m a n , i n j u r i n g l i b r a r y b o o k o r o t h e r p r o p e r t y , i n s u b o r d i n a t i o n , i n a t t e n t i o n in line or a t w o r k , l o u d t a l k , l a r c e n y , l y i n g , m a l i c i o u s misc h i e f of a n y k i n d , m u t i n y , n e g l e c t of w o r k , n o t in line, n o t r e t i r i n g a t p r o p e r h o u r , q u a r r e l i n g , r e p l y i n g w h e n c o r r e c t e d , r a i s i n g d i s t u r b a n c e of a n y k i n d at a n y p l a c e , s h i r k i n g , s p i t t i n g on t h e

floor,

s t e a l i n g , t a l k i n g f r o m cell t o cell,

using threatening language, unbecoming conduct not a b o v e mentioned, wasting food, writing unauthorized letters. T h e warden m a y punish prisoners for cause b y ( i ) r e p r i m a n d , ( 2 ) loss of t o b a c c o p r i v i l e g e s , ( 3 ) loss of l e t t e r p r i v i l e g e s , ( 4 ) i m p r i s o n m e n t in " s o l i t a r y " on r e s t r i c t e d d i e t , ( 5 ) i m p r i s o n m e n t i n " s o l i t a r y " on r e s t r i c t e d d i e t a n d h a n d c u f f e d to d o o r .

A like system exists in reformatories for men, except that some of the reformatory rules are even more detailed and specific than those of the prison. A m o n g the m a n y activities for which an inmate m a y be punished in the Elmira R e f o r m a t o r y are the f o l l o w i n g : U n n e c e s s a r y l a u g h i n g or silliness, n e g l e c t i n g y o u r w o r k i n t e n t i o n a l l y , l o a f ing instead of w o r k i n g , c a r e l e s s l y l o o k i n g a t y o u r b o o k w i t h o u t s t u d y i n g y o u r lessons, i d l y l o o k i n g at y o u r o u t l i n e in t r a d e w o r k w i t h o u t t h o u g h t a s t o h o w y o u s h o u l d p r o c e e d w i t h it. 1 lFred

C. Allen, Inmates Rule Book, New York State Reformatory, Elmira, p. 9.

330

CRIME AND THE COMMUNITY

T h e rules of the Massachusetts

Reformatory cover this list of

offenses: Absent from school, altering clothing, bed not properly made, clothing not in proper order, coat not buttoned, crookedness, destroying or injuring property, dilatory, dirty room or furnishings, disobedience of orders, disorderly room, disturbance in dining room, disturbance in shop, disturbance in wing, eating before signal, fighting, gaping about, gross carelessness, hair not combed, hands and face not clean, hands in pocket, having daily papers, idleness in shop, inattentive in chapel, inattentive in line, inattentive in school, inattentive in shop, insolence to officer or instructor, interfering with electric light, late at school, late at work, late entering room, laughing and fooling, loud talk in room, loud talk in dining room, lying, malicious mischief, neglect of study, not at door for count, not wearing outside shirt, not wearing slippers in chapel, not wearing slippers in schoolroom, out of place, poor work, profanity, quarreling, refusal to obey, shirking, spitting upon the floor, staring at visitors, talking from room to room, stealing, talking in chapel, talking in dining room before signal, talking in lecture room, talking in line, talking in school, talking in shop, talking in corridor, vile language, violation of rules relating to use of tobacco, wasting food, wearing slippers in yard, and any other improper conduct or breach of discipline. 1 A similar list is found in practically all reformatories. One reformatory has long lists of possible offenses graded into three distinct classes and placed on different colored sheets of paper. There are white, yellow, and pink report slips, each carrying its own possible consequences. T h e Wisconsin Reformatory has a comparatively short list of offenses which are as follows: Altering clothing, bed not properly made, clothing not in proper order, communicating by signs, defacing anything, dilatory, dirty cell or furnishings, disorderly cell, disobedience of orders, disturbance in cell house, fighting, hands in pockets, hands or face not clean, hair not combed, impertinence to visitors, insolence to officers, insolence to fellow inmates, inattentive in line, inattentive at work, inattentive at school, looking about the shop, laughing and fooling, loud talk in cell, loud reading in cell, malicious mischief, neglect of study, not out of bed promptly, not at door for count, not wearing outside shirt, not promptly out of cell when bell is rung, out of place in shop or line, profanity, quarreling, staring at visitors, stealing, trading, shirking, spitting upon the floor, refusing to obey. 2 Offenses account for only part of the rules of the institutions. 1

A Manual of the Massachusetts Reformatory for the Use of Prisoners, p. 15. Rules and Regulations for the Government of the Wisconsin State Reformatory, for Inmates, p. 18. Green B a y , Wisconsin, ig30. 2

Rules

PRISON DISCIPLINE

4. Rewards and

331

Punishments

Given these rules, how are they to be enforced? Broadly speaking, there are two ways of enforcing them. One is the offering of rewards for compliance with the rules and the second is the inflicting of punishment if the rules are broken. The rewards offered are in the nature of privileges and rights. T h e prisoner may earn "good time." In a large number of States the prisoner is entitled to a specified reduction of his sentences for good behavior. This reduction ordinarily amounts to one or two months for the first year and rises to four or five months in the fourth or fifth year, and continues at that rate until the man is finally released. In Connecticut, for example, a io-year sentence may be served in 7 years 11 months and 15 days. A 30-year sentence may be served in 23 years and 5 days. In N e w Jersey a 40-year sentence may be served in 24 years. In Nebraska a 25-year sentence may be served in 17 years and 1 month. An infraction of the rules enables the warden to cut this prerogative of good time, and the fear of this may perhaps be considered the most effective inducement to good behavior. Privileges of another type are those that are established by rule within the prison. T h e right to receive visits, to write letters, to have a light in one's cell, to have smoking tobacco, to attend a moving-picture show, to go out into the yard, to eat in the dining room, to receive books and newsp a p e r s — a l l these and similar privileges normally accrue to those prisoners who are in good standing. B u t experience has shown that the inducements provided by these privileges are not sufficient. All prisons, therefore, have other modes of control and discipline. These include not merely the deprivation of the privileges enumerated but other forms of punishment. All prisons use some form of isolation for longer or shorter periods. This varies greatly in different institutions. In some prisons men are locked up in their cells for a few days. Others use what are known as screen cells where men are put away from 2 to 10 days. In some places they are put away for 30 days. In difficult cases there may be permanent isolation. In some prisons this isolation is in specially built cells. In a number there are dark or semi-dark cells, where men are kept on bread and water for as long as two weeks and sometimes more than that. In one, at least, there is still an occasional use of the strait-jacket. Eight prisons still use the strap. Eight prisons admit handcuffing men to the doors. No account of punishment, unless it is given in detail, is truly descriptive. But an adequate description is almost impossible to secure.

332

CRIME AND THE

COMMUNITY

A d e t a i l e d h i s t o r y of t h e p r i s o n s in N e w Y o r k h a d t h i s t o s a y : Very frequently we find no conceivable relation between the seriousness of the offense and the severity of the punishment. Offenses may run the full gamut of crimes and all infractions of institutional regulation. Murder, assault, theft, sodomy are included in the same list with talking, looking in the wrong direction, being on the wrong tier, breaking windows, laughing, possessing in cell articles not provided by the regulations, closing or opening windows at the wrong time, concealing food, improper language, absence of button from clothing, etc., without corresponding variation in the punishment inflicted. Nor are punishments for like offenses the same in different institutions. Talking m a y be permitted in one place and most severely punished in another. Assaults may, similarly, have varying punishments prescribed, and so with theft, etc. In reviewing the history of institutional punishments we need therefore not concern ourselves with the particular infraction which brings about the punishments described. 1 S u m m a r i z i n g t h e s i t u a t i o n f o r 1 9 2 0 t h e a u t h o r said : Our standards of punishment are still behind our standards of general administration in prisons. A t the present time there is, officially, no corporal punishment. In practice there is a good deal of it. Officially, solitary confinement and bread and water diet only are permitted. T h e dark cell though not mentioned is generally used. T h e ball and chain are not rare. Several forms of punishment devised in different institutions occur from time to time, as, for example, "standing on a c r a c k " or ball and chain day and night, or wearing striped clothes in institutions where other inmates have gray clothing, and so on. 2 H e r e are s o m e of the p u n i s h m e n t s f o u n d in existence in 1 9 2 9 , a s r e p o r t e d b y the N a t i o n a l S o c i e t y of P e n a l I n f o r m a t i o n in its on American

Prisons

and. Reformatories

f o r 1929.

Handbook

O f the S t a t e P e n i -

t e n t i a r y a t F r a n k f o r t , K e n t u c k y , it said : On the day the institution was visited a dozen men in the punishment section were in "chains," that is, standing with one hand cuffed to the cell door and the other cuffed to the post supporting the upper gallery. T h e y remain in that position throughout the working hours for periods of 5 to 20 days. While under punishment they wear stripes. T h e whip was abolished nine years ago and the water cure about four years ago. 3 I n the S t a t e p r i s o n a t C o l u m b u s , O h i o , m e n are p l a c e d s t a n d i n g in a s e m i c i r c u l a r c a g e in w h i c h t h e y c a n n o t m o v e a b o u t . 1 2

Philip Klein, Prison Methods Ibid., pp. 230-231.

3Handbook

0j American

in New

Prisons

York Stole,

and Reformatories,

I n the p r i s o n a t

pp. 201—202. N e w Y o r k , 1Q20. 1929, p. 387.

PRISON

333

DISCIPLINE

R h o d e Island the s t r a i t - j a c k e t w a s still in use in 1929, but h a s since been abolished.

However,

Men may be confined to one of the six punishment cells in a semi-basement, underneath the hospital. These cells are not dark but are not particularly well ventilated. Men sent here for refusing to work and occasionally for other offenses are cuffed by one arm to a ring in the wall about shoulder high. 1 In V i r g i n i a w e h a v e " c u f f i n g the men to a b a r a b o u t the h e i g h t of t h s chest, the use of leg s h a c k l e s , a n d the strap in extreme c a s e s . " 2

I n the

W y o m i n g S t a t e P e n i t e n t i a r y at R a w l i n s , men a r e p l a c e d in u n d e r g r o u n d p u n i s h m e n t cells t h a t are " a b s o l u t e l y d a r k " a n d t h e y still c o n t i n u e the s y s t e m of " s h a c k l i n g a m a n t o a post and t u r n i n g a stream of cold w a t e r on h i m . " 3 In the old prison in Joliet, Illinois, " t w o men a n d sometimes three or f o u r are s h a c k l e d to the door of one c e l l . " 4 I t w a s in this prison that a m a n died some time a g o while h a n d c u f f e d to t h e door. T h i s led to s o m e modification of the rules of p u n i s h m e n t .

In t h e n e w

prison at Joliet, for more serious offenses " m e n are held in these cells on a diet consisting of 4 ounces of b r e a d a n d 1 q u a r t of w a t e r a d a y , f r o m a d a y to a w e e k . If confined for a longer period t h e y are g i v e n a full ration one d a y each w e e k . T h e y are c u f f e d t o the door of t h e cell a b o u t 12 h o u r s a day.'" 5

I n M a r q u e t t e , M i c h i g a n , men are c u f f e d to

doors d u r i n g w o r k i n g hours. I n Stillwater, M i n n e s o t a , w h e r e the silence s y s t e m w a s r i g i d l y a d h e r e d to except at three noon meals a w e e k and the w e e k l y r e c r e a t i o n period in the y a r d on S a t u r d a y a f t e r n o o n , there has been s o m e relaxation of this prohibition a g a i n s t conversation during the p a s t f e w y e a r s , b u t " w h i l e under p u n i s h m e n t the men are on a diet of b r e a d a n d w a t e r . D u r i n g w o r k i n g h o u r s their h a n d s are in some cases c u f f e d t o the door a b o u t w a i s t h i g h . " 6 P r o b a b l y e n o u g h h a s been said to c h a r a c t e r i z e the t y p e of prison d i s c i p l i n a r y m e t h o d s still in v o g u e .

It m u s t b e r e m e m b e r e d t h a t these

are general a c c o u n t s of a h u m a n situation w h i c h it is difficult to d e s c r i b e in detail b e c a u s e it is g e n e r a l l y c o n c e a l e d , minimized, a n d denied.

The

method of discipline is the m o s t difficult t h i n g to u n c o v e r b e c a u s e the prison officials are sensitive a b o u t it and the prisoners are i n t i m i d a t e d 1Handbook

of American Prisons and Reformatories, 1929, p. 867. See also Handbook, P- 921. 2 Handbook, 1929, p. 951. 3 Ibid., p. 1017. 4 Ibid., p. 262. Compare Handbook, J931, p. 125. 5Handbook, 1929, p. 270. The Prison Inquiry Commission in 1937 found that cuffing had been abolished and full rations given one day in every five. Op. cit., pp. 256-257. 6Handbook, 1929, p. 515. '933,

334

C R I M E

A N D

T H E

C O M M U N I T Y

from testifying. Prison riots have repeatedly brought to light the existence of methods of discipline that were unknown or denied. The table below represents an attempt to classify the types of disciplinary methods used in prisons and reformatories in the United States. This classification is not adequate, as the descriptions upon which the classification is based are frequently too general; but it does give an insight into the general similarity of penal disciplinary methods. It also shows that there is no substantial difference between the methods of the prisons and those of the reformatories. EIGHTY-SEVEN M E N ' S

PRISONS AND

T Y P E S OF P U N I S H M E N T ,

REFORMATORIES, 1928

[As reported by the institutions to the National Society of Penal Information] 68

Loss of privileges Loss of "good time" Punishment or isolation cells Screen cells Locked in own cells Dark cells Semidark cells (as given) Restricted diet (bread and water) 1 . . . . In punishment cells under 1 weeks . . . . In punishment cells over 2 weeks Handcuffed to door of cell Strap used Miscellaneous punishments Well-ventilated cells (as given)

Prisons

ig

Rejormatorics

Number

Per Cent

Number

Per Cent

IS 12

63

56

82

37 60

54 88

9 10

13

S

15 IS

4 I

21

10 10

IS

2

11

36

53

10

26

39

8

S3 42

6

9 12

0

8 8

12

0

9 11

13 l6

6

18

2

I

79 95 26

S

11

32 S

It should be remembered that these punishments overlap. A prisoner who is punished by being placed in a screen cell, for instance, generally is also deprived of his privileges and loses some of his good time. We have now described both the rules and the means used in enforcing them. We have still to note the procedure involved. The prisoner is always under the watchful eye of an officer. If he is caught in the violation of a rule, he is reported by the guard. The report is usually in the form of written complaint. In some institutions it is in the form of a check against some specific violation printed on a "report slip." This is followed by a hearing before the warden or deputy. The guard does not ordinarily appear against the prisoner, and the prisoner has no right 1

This is an understatement, as few if any prisons in the country fail to use this method.

PRISON

335

DISCIPLINE

to call witnesses. T h e officer's word is final. If the warden or deputy warden feels that the man is not guilty, or if he considers the infraction a minor one, the prisoner may be allowed to go with a reprimand. Otherwise he is fined, has his privileges taken away from him, or is sentenced to serve a lesser or greater period in solitary. In fact, however, there grows up a standard form of punishment for infractions of the rules regardless of their nature. M a n y illustrations of this could be given. T h e tempering of the punishment tends to be in the matter of its severity and duration rather than its kind. In the study of one institution in Illinois it was reported that during one morning while the investigation committee was present the disciplinary officer passed upon the following violations of the rules: Loafing away from work, eating before the bell rang, possessing contraband, loafing on the job, insolence and threatening to get a man, playing craps, case of a man who was placed in solitary at his own r e q u e s t — " q u e e r fellow," threatening keeper with a pick, insolence, fighting.1

All these convicts were given solitary by the deputy warden. is typical.

5. The Effects of Prison

This

Discipline

How often are men reported in an institution ? There is no adequate evidence on this point, as few institutions make public their disciplinary records. According to the Gluecks, the infractions of rules for which punishments were administered at the Massachusetts Reformatory in 1927 were distributed as follows: Fighting, 4 8 ; disturbance in wing, shop, or school, 43 ; assault on inmate, 33 ; insolence, 2 9 ; violating tobacco rules, 1 4 ; "crookedness," 9 ; " b e i n g out of place," 6 ; disobedience, 6. T h e remainder of the 251 infractions for which punishment of separate confinement, solitary confinement, or reduction in grade was imposed were distributed among such offenses as " v i l e language," " b a d t a l k , " "passing vile notes," "malicious mischief," persistent shirking, gross carelessness, attempted escape, refusal to work, trading clothes, carrying dangerous weapon, and a number of others. 2

In discussing the distribution of violations of the rules for the 500 prisoners whom they were studying, the same authors said: 1 Bruce, Harno, Burgess, Landesco, op. cit., p. 213. The Illinois Prison Inquiry Commission remarked in 1937, of a similar list of offenses that it seemed " t o indicate punishment in screens and solitary is in some cases inflicted for minor infractions and offers too great an opportunity for spite on the part of some unfriendly guard." Op. dt., p. 320. 2 Sheldon and Eleanor Glueck, 500 Criminal Careers, p. 34.

336

CRIME AND THE

COMMUNITY

T h e young men whose careers we are retracing were guilty of 3 , 2 3 5 violations of institutional rules during the time they were serving in the reformatory on the sentences under consideration. prisoner.

T h i s is an average of 6.3 offenses per

Practically all possible institutional offenses were committed

by

them. T h e y are too numerous in variety to set forth in detail. T h e offenses committed most frequently, however, are the following:

Talking at the wrong

time or place, 6 3 7 ( 1 9 . 7 per c e n t ) ; disobedience of orders, 3 8 6 ( 1 1 . 9 per c e n t ) ; smoking or possessing tobacco, 2 8 4 (8.8 per c e n t ) ;

disturbance in various

places, largely in the " w i n g , " 1 9 1 ( 5 . 9 per c e n t ) ; insolence, 1 5 9 (4.9 per c e n t ) ; refusal to work or " s h i r k i n g , " 2 4 2 ( 7 . 4 per c e n t ) ; breaking probation, 1 0 0 ( 3 . 1 per c e n t ) ; having a newspaper, 8 1 ( 2 . 5 per cent).

Some of the bizarre

types of offenses reported embrace " g a p i n g a b o u t , " " h a n d s in pocket," " n o t wearing outside shirt," " n o t wearing slippers" in chapel or schoolroom or wearing them in the y a r d , " a c t i n g queer in room," etc. 1

That this is typical is evident from other sources. The report of the Federal prison at Leavenworth for the year 1930 shows that there were 1797 reports against 1332 prisoners. The prison authorities considered that "the maintenance of discipline with so few reports appears unusual." In the Federal reformatory in Chillicothe, with an average population of 1477, there were 1045 bad-conduct reports during the year 1930. The men's reformatory at Anamosa, Iowa, reported for the same year an average population of 1 1 4 1 . During that time there were 2369 reports against prisoners, as a result of which 940 men were sentenced to isolation. The Kansas State Industrial Reformatory, for 1930, reported that it had an average of 891 prisoners. Of these, there were locked up each month an average of 246, or 28 per cent of the total population. In a 2-year period 4955 men were locked up. This means that, on the average, each man was locked up between five and six times in the two years. This is comparable with the record of the Massachusetts Reformatory at Concord as revealed in the Glueck study. These records of infractions of the rules and the consequent punishments are incomplete even for those institutions that do keep records. Infractions are much more numerous than reports. In a prison where an attempt is made to define and circumscribe almost every movement that the inmate makes, the number of infractions is increasingly great. What happens, of course, is that many nominal rules are overlooked. This is especially true of some guards who are more tolerant than others. "Infractions of rules by inmates . . . are correlated with certain cell guards and certain jobs." 2 In the same institution those prisoners that 1

I b i d . , p. 1 5 8 .

-The Illinois Crime Survey, p. 438.

PRISON DISCIPLINE

337

have interesting work commit fewer violations than others. T h e rules themselves become inducements to violations, especially if the prison group develops a dislike for some officious guard. Living under constant watchfulness and restraint, certain groups develop an attitude of mischief and small infractions, thefts of food, for instance, furnish a diabolic thrill and subject matter of excited conversation. Every official at Pontiac admits if normal activities were more interesting less punishment would be necessary.1 The justification for the rules and their enforcement is that they make possible the maintenance of order, the prevention of escapes, the control of sodomy, and the elimination of narcotics. These are the major objectives of every prison, as they constitute the major difficulties of penal administration. On the face of the record no prison has succeeded in solving these problems. In 1922 a speaker before the American Prison Association remarked, " I n the last four years scarcely a State has escaped its prison riots, wholesale deliveries, or scandals of other varieties." Since 1925 there have been riots in Folsom, California; in the Colorado State Prison; in the prison at Jefferson City, Missouri; in the Federal prison at Leavenworth ; in the State prison at Columbus, Ohio; in the prisons of Auburn and Clinton in New Y o r k ; in the State prisons in Rhode Island and Alabama ; in the State prison at Lansing, K a n s a s ; at the Eastern Penitentiary at Philadelphia; on the prison farms in Louisiana. In 1935 there were strikes in the Ohio State Penitentiary and the Kansas State Penitentiary. In 1936 there were strikes in Alcatraz Island Penitentiary and in the prison in Anderson County, S. C. In addition to these major prison riots there have been a larger number of minor conflicts between prisoners and their guardians. Nor has severity of discipline any effect upon the internal harmony and peace of the prison. T h e prison at Jefferson City, Missouri, reported that "there have been strict disciplinary methods instituted." 2 In the same report it is revealed that during the year 5 men committed suicide, 4 were killed by other prisoners, and 78 escaped.

6. The Breakdown of Severity Severe rules and strict enforcement are of less importance than the atmosphere of the institution. It is the mode, the tone, the unofficial relationships within the institution, rather than the actual rules or their 1

The Illinois Crime Survey, p. 438. Department of Penal Institutions, Biennial Report, 1929-30, p. 152.

2 Missouri

338

CRIME AND THE COMMUNITY

enforcement, that determine the disciplinary problems. If the institutional environment is soothing, if there is interesting occupation, if the men can keep going without undue irritation, with an opportunity to get an outlet of some sort for the restlessness that comes from restraint and confinement, the behavior difficulties are few. If, on the other hand, there is a great deal of unnecessary irritation, if the environment is irritating, then no amount of discipline or cruelty will save the institution from internal violence, riot, fire, and murder. The pressure becomes so great that prisoners break out in unexpected fury, not because they plan to but because some incident opens the valve, so to speak, of hitherto suppressed feelings and the prison is in a state of fury and hysteria before anyone knows just what has happened. Anyone who has studied the phenomenon of prison riots will testify that they arise from a general situation rather than from any specific grievance, and that they are produced by a bursting into hysteria of the mass of the prisoners, even if they result from a scheme of some few leaders to make difficulties for the prison administration. The emotional lives of the prisoners are so closely interwoven that the real grievance of any one prisoner becomes a common grievance. It is this that defeats the severity of prison discipline. When one man is unfairly or unjustly punished, instead of curbing him the prison administration rouses a large mass of prisoners against itself. Each tends to accept the punished man's grievance as his personal grievance. Instead of cowing one man it has roused a hundred to greater hatred and discontent. It is failure to understand this that has given the prison administrator his greatest difficulty. If and when the warden can understand that punishment within a prison must have the moral approval of the prison community to be effective, then he will begin to see the bearing of his internal rules upon the general problem of prison discipline. It is clear at present t h a t the more punishment in prison the more discontent, the more discontent the more irritation, the more irritation the more plotting, the more plotting the more violation of rules and the greater the need for severe punishments. The whole process is a vicious circle for which there seems to be no remedy. There is a much more fundamental problem here than that of discipline. I t is the question of the bearing of the institutional life upon the individual's basic interest. T h e withdrawal of the interests that motivated outside activity for the prisoner leaves a vacuum which the prison does not fill. No attempt is made to provide a substitute for his prior interests and activities. H e is forced to live in an empty world

PRISON DISCIPLINE

339

where no call is made upon his personal initiative. But this is not consistent with normal existence, and the prisoner reaches back in his experience to those activities that occupied his interest and attention before confinement. The world of outside activities is repeated in "day dreaming." An inmate may spend years in prison without real adjustment except in the formal physical sense of going through the motions of complying with the few demands that are made of him. He may do this in a purely mechanical way without at any time really becoming concerned with the world in which he lives. The whole rule and scheme of penal administration may remain purely external and mechanical. One writer has expressed this by saying, "Decisions, judgments, penalties, crystallizations of punishments are created without the individual ever having been permitted to get within striking distance of what it is all about." This means that the rules upon which the prison discipline is based are so external and so unrelated to the inner life the individual is living that they may have little if any bearing upon his development, except as they become points of irritation and conflict within the prison. The question arises why these rules are in force in the face of their having so repeatedly broken down and so constantly failed to bring about the end aimed at, a community that functions with as little internal friction as possible. The only answer available is that the rules had their origin in a traditional concept both of human nature and of the nature of crime and punishment. We cannot here again go into that topic except to repeat that the whole scheme of penal administration had its origin in the notion that silence and isolation provided the best means for the contemplation of the evil the individual had committed and were the surest means to remorse and a "purified heart." It was consistent with the notion that crime was produced by the possession of evil and that the opportunity for reflection and repentance in silence would lead the way out. The compromise effected when the Auburn system of penal discipline was developed made no change in the theory and only a partial change in the practice. Silence was made to replace permanent isolation. The growth of large penal institutions and the rigor of the earlier discipline in itself produced evils to which the only answer seemed to be severity. The type of congregate prison building, with the great promiscuity of kinds of character, merely enforced the older tradition, and the system has continued by the weight of custom and habit. How important a part traditional procedure plays in the regime of the ordinary prison is illustrated by the following statement by one of the former wardens of the Eastern Penitentiary in Pennsylvania:

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After I had been warden about a month I asked the old deputy how often the prison was inspected. He said about once a year. I suggested that we inspect it every day. He said I couldn't do it; it would take three or four days to inspect it. I suggested that if I or the deputies could not personally inspect the whole plant each guard could inspect his block, which seemed to be quite an idea to him. . . . I asked him why the corridors were not washed every morning. He said, "We haven't enough runners," although we had 1,300 men at that time doing nothing; and I said, "How do you mean we haven't enough men? Why can't the men in the cell block do i t ? " "Oh, that wouldn't do at all," the deputy said. They hadn't washed that place because they didn't have enough men, and yet there were 1,300 men in idleness.1 It must be obvious that many of the rules and regulations within the prison are such that their enforcement is difficult under the best circumstances. T h e enforcement of rules against "gaping about," " s t a r i n g , " "inattention," "laughing," " m a k i n g signs," "silliness," and " p r o f a n i t y " would tax the patience of a J o b and the wisdom of a Solomon. The rules either are not enforced at all or are enforced sporadically. T h e y provide unnecessary and unusual opportunity for those guards who are irritable, bossy, ill-humored, assertive, and ill adapted to exercise their prerogatives.

7 . Reformation of the Disciplinary

System

There are prisons where the rules have been entirely done a w a y with and where prisoners are expected to behave like ordinary men and to expect discipline for ordinary and obvious breaches of those rules which are consistent with good conduct within the prison community. One warden wrote, " W e used to have several books of rules, but several years ago we decided there were simply too many rules in existence and an inmate could hardly turn around without violating one of them, so we destroyed all of them and within recent years have had no printed rules whatsoever." A second warden wrote, " T h i s institution has no regular printed rules." A third wrote, " W e personally believe that too many regulations are a detriment and that a man's conscience will make him conduct himself in a better manner than a set of printed rules." A fourth, " I really had not thought of it, until at this time it is brought to my attention that we have operated this institution for 16 years without rules; that is, without a printed set of rules." A fifth, " W h e n 1 Colonel John C. Groome in Proceedings Prison Association, 1(126, pp. 2 7 1 - 2 7 2 .

of the 56th Annual Congress

of the

American

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DISCIPLINE

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prisoners are received no instructions as to their conduct a r e given them other than that we expect them to act as men. Of course w e h a v e unwritten rules as to the manner of marching to and f r o m w o r k a n d meals and other do's and don'ts which are obvious and need no instructions to insure their o b s e r v a n c e . "

U n f o r t u n a t e l y the institutions that t a k e this

attitude do not number more than a half dozen. T o show the possibilities of rules different f r o m those q u o t e d a b o v e , here is p a r t of the advice given to a newcomer at the N e w

Castle

County Workhouse: T o you who are perhaps coming into a prison for the first time in your life, we offer the following advice and suggestions which we believe will be helpful to you for whatever period it may be necessary for you to remain here: In this institution of several hundred men you will find all kinds and characters, such as comprise the outside world, except that in here we try to forget all creeds and color, with the thought of all living in harmony and making a man's stay here as comfortable as possible under the circumstances. The daily routine of the institution begins with the striking of the gong at 6:30, which is the signal for the inmates to get up, wash, dress, and put their bed and cell in order. Upon the opening of the doors at 7 o'clock, you will come out, join the line of your tier, and proceed to the dining room for breakfast. Immediately after breakfast you will return to the center, where work will be assigned to you. This work will be your regular employment until such time as you are released, promoted, or assigned to other work. And at this employment you are expected to give your fullest attention during working hours. At 12 o'clock you come to the dining room for the noon meal, to return to your regular place of employment at 1 2 : 3 0 . At 4 : 3 0 you stop work for the day to go to your living quarters, there to wash, put on clean clothes if necessary, and prepare for the evening meal, which is served in the dining room at 5 o'clock. Upon leaving the dining room at 5 : 3 0 you have the option, weather permitting, of going to the yard, or to your cell, where you may read or write, as you see fit, but we earnestly urge that you spend at least part of your evening in the yard at some sport or recreation in order to get the benefit of the fresh air. In order that you will not be required to spend long, lonely evenings in your cell, we have arranged a series of activities in which we cordially invite you to join. On Monday and Friday evenings, from 7 : 3 0 to 9 o'clock, classes of all grades are conducted, for which we furnish instructors, books, stationery and everything required, and only ask that you give your time, assuring you of a splendid chance to increase your earning ability through educational improvement. On Tuesday, Thursday and Saturday, beginning at 7 o'clock, moving pictures or some kind of entertainment is provided in the auditorium, to which every man with a good record in the institution is invited. On Wednesdays and Sunday evenings religious services are conducted by the inmates in the

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auditorium, beginning at 7 o'clock, which consist of an hour or more of good spiritual talks and interesting musical program, of which we hope you will become an important part during your stay here. Saturday afternoon is devoted entirely to sports in the recreation yard, in which we hope you will take an active interest. On Sunday a morning religious service is held in the auditorium from 9 to 10 by different groups of young people under the direction of the Y . M. C. A. Attendance at this service is optional with the inmate, but, being of a very interesting character, is attended by a majority of the men. From 3 to 4 o'clock a religious service is conducted in the auditorium by some well-known minister or speaker, who is usually accompanied by some of his congregation or choir, and this is usually a very interesting service. Attendance at this meeting is required of all inmates unless excused on account of sickness or duties. For the balance of the Sabbath day, except during meal periods, all men are permitted in the recreation yard. With the thought of having the men living a perfectly normal life here, no rules are in force except those absolutely necessary for the welfare of the men and the institution. Those who smoke are permitted to do so at any time or place where there is no danger of fire, but positively under no circumstances is smoking or lighting cigars, cigarettes or pipes permitted in the workshops or other places where there is any fire hazard. No restriction is placed on your talking to your fellow men at any time as long as it is done in a quiet, orderly tone, except after 10 o'clock P.M., at which time the gong sounds for lights out in the cells, and from that time until 6:30 o'clock in the morning absolute silence is required. T h e attack upon the problem of discipline, however, must come not merely from changes in the rules but also from the elimination of the elements within the general prison population which make the chief disciplinary problems.

T h e basic problems of discipline arise from

attempts to escape, violence, sodomy, and narcotics. T h e elimination of the sex pervert and the drug addict would automatically ease the strain of discipline. T h e separation of the population into groups which require stricter and less strict supervision would be a further help.

But

the greatest step will be taken when the prison makes an attempt to substitute for the interests withdrawn b y confinement other interests within the prison sufficiently intense and stimulating to take the man's mind off himself and direct his voluntary activities into channels which are objective enough to be impersonal but vivid enough to be interestbearing. T h e answer to the problem lies in education in the broadest sense of that word.

PRISON

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DISCIPLINE

BIBLIOGRAPHY The Annals of the American Academy of Political and Social Science. "Prisons of Tomorrow." Vol. 157 (September 1 9 3 1 ) . BERKMAN, ALEXANDER. Prison Memoirs of an Anarchist. Mother Earth Publishing Association, New Y o r k , 1912. BLACK, JACK. Breaking the Shackles. San Francisco, 1926. BROCKWAY, Z. R . Fifty Years of Prison Service. Charities Publishing Committee, New York, 1912. FIELD, ANNE P. L . The Story of Canada Blackie. E. P. Dutton & Co., 1915. GLUECK, SHELDON, and GLUECK, ELEANOR. Five Hundred Criminal Careers. Alfred A. Knopf, Inc., New York, 1930. HART, HASTINGS H., compiler. Training Schools for Prison Officers; Plans and Syllabi of the U. S. Training School for Prison Officers, the New York City Keepers' Training School, and the British Training School for Prison Officers. Russell Sage Foundation, 1930. Illinois Prison Inquiry Commission. The Prison System in Illinois. 1937. IVES, GEORGE. A History of Penal Methods. S. Paul and Company, London; F. A . Stokes and Company, New Y o r k ; 1914. JENNINGS, ALPHONSO J. Through the Shadows with 0. Henry. A. L. Burt Company, 1921. KLEIN, PHILIP. Prison Methods in New York State. Columbia University Press, 1920. LAWES, LEWIS E. Life and Death in Sing Sing. Doubleday, Doran and Company, 1928. LEWIS, 0. F. The Development of American Prisons and Prison Customs (1776184s). The Prison Association of New Y o r k , 1922. LIEPMANN, M. "American Prisons and Reformatories," in Mental Hygiene, Vol. X I I , No. 2 (April, 1928). An authorized abstract by Thorsten Sellin appears in Bulletin No. 28 (1929) of the Committee on Philanthropic Labor of the Philadelphia Yearly Meeting of Friends, 1515 Cherry St., Philadelphia, Pa. LOWRIE, DONALD. My Life in Prison. Mitchell Kennerley, 1912. NELSON, VICTOR F. Prison Days and Prison Nights. Little, Brown & Company, 1933. O'HARE, KATE RICHARDS. In Prison. Alfred A . Knopf, Inc., 1923. OSBORNE, THOMAS MOTT. Within Prison Walls. D . Appleton & Co., 1914. T h e Osborne Association, Inc. Handbook

of American

Prisons and

Reformatories,

1933• TANNENBAUM, FRANK. Darker Phases of the South. G. P. Putnam's Sons, 1924. Osborne of Sing Sing. University of North Carolina Press, 1934. Wall Shadows. G. P. Putnam's Sons, ig22. WILSON, MARGARET. Crime of Punishment. Harcourt, Brace and Company, 1931. WINNING, JAMES R . Behind These Walls. T h e Macmillan Company, 1933. See prison rule books published by a number of State prisons and reformatories.

CHAPTER

X I V • Classification of the Prison Population

Classification of prisoners may be said to have begun with the development of imprisonment after conviction. The very process of separation of the guilty from the non-guilty was in itself a process of classification of those accused of criminal behavior; the separation of debtors from criminals was a species of classification by legal status. Classification was early carried to a separation between women and men. The prison thus, at a very early stage of its history, made separate provision (at least in general terms) for treatment of the different sexes. This was followed considerably later by the separation of the old from the young. Children's institutions are of comparatively recent date. It was not until the eighties that the general principle of separation of the younger from the older offenders was generally accepted in theory and partially applied in practice. With separation by sex and by age came separation by crime. The whole reformatory movement was an attempt not merely to separate the young from the old but to separate the serious offender from the less serious one. On this principle diversification of institutions developed. The reformatory, the penitentiary, the workhouse, the jail, and the prison stand for different types of offenders, in theory at least. Even among prisons there has been a more or less consistent attempt, where there is more than one prison in the State, to use them for housing different types of criminals. In New York State, for instance, it is a common practice to send the more dangerous offenders to Clinton Prison, the less dangerous ones to Sing Sing. The women's prison and the reformatory, the Houses of the Good Shepherd and Magdalene institutions, are all attempts at separation by offense. Classification, therefore, has been largely in terms of institutional diversification. Different institutions were developed to care for types of individuals who, because of age, character, or legal responsibility, were assumed to be better grouped together. This system has never been fully developed. A large number of states have neither reformatories for young prisoners nor separate institutions for serious women offenders. The young prisoners are housed with the old; the women are cared for in the same institutions with the men and under the same

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management. Institutional classification, therefore, has not yet been fully adopted by all the states even for the obvious classifications of age and sex. 1

1. Administrative

Classifications

A much more prevalent system of classification takes the form of administrative distribution of the population within the prison. This classification was a response to the necessity of handling large groups of individuals within the narrow confines of the institution. A s a matter of administrative function it has been easiest to lodge gangs of prisoners working in the same shop together in the same part of the building. This facilitated their release from the cells and their return after the day's task was done. It made it easier for the individual keeper to guard his men from the time he took charge of them as the cell doors opened to the time they were again locked securely behind their iron bars. It also saved time which otherwise would have been lost while the prisoners gathered from different parts of the institution to a central meeting place to be marched to w o r k ; it avoided the intermingling of prisoners from the different parts of the prison. This separation by labor gangs means that a man changing his place of work automatically changes his cell. It has been and is the most important administrative classification within the prison, and is an important instrument of internal efficiency. As part of the prison routine, disciplinary classification has always played an important role. This may be considered a system of classification by conduct within the prison. In many institutions, and in all reformatories, there are different grades, usually three, into which all prisoners are divided. Ordinarily the incoming prisoner is placed in the middle grade, and he is either demoted or promoted according to his conduct. With the change in grade goes a change in his privileges and prerogatives within the prison. This administrative classification according to conduct within the prison serves the important purpose of determining the right to make application for parole; the loss of "good t i m e " ; greater or less freedom in the prison yard. That again is largely an administrative mechanism and serves administrative ends. Under a parole system, especially in reformatories, the administration has to set some standards for determining the approximate date for consideration of the prospective parole of 1 T h c Illinois Prison Inquiry Commission complained that more than half the young offenders of the state are not properly segregated. Op. cit., p. 32.

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prisoners under indeterminate sentence. This is generally accomplished by establishing a system of credits which one may gain by good behavior within the prison. These credits determine the grade in which one finds himself, and this grade, plus a certain minimum of time, in turn determines the right to prospective release upon parole. This too is a purely administrative mechanism. It is determined by conduct within the prison. Another example of the same type of classification is segregation of the more troublesome or more dangerous prisoners in certain parts of the prison building, screen cells, isolation, solitary. While such segregation is generally for a temporary period, it may be, and often has been, used as a means of removing troublesome prisoners for long years or even permanently. A similar type of classification is seen in selection of men as " t r u s t i e s " to do the semi-official work of keeping records, to work in the warden's establishment, to work outside the walls, or even to work without guard at some distance, in a garden, on roads, or, not infrequently, on farms. Another species of administrative classification has developed in the segregation of "drug addicts" and "sex perverts." Most segregation of this type has had but little influence in the organization of the prison, although in some institutions it is a recognized feature of the administrative program. More universal is the segregation by disease, especially tuberculosis. Generally speaking, some attempt is made to segregate tubercular prisoners. An attempt to segregate syphilitic inmates is less general, though it is made in many prisons. A system of classification is found also in the separation, more or less effective, of insane or partially insane prisoners. In many places, more recently, these have been transferred to hospitals for the criminal insane, or separately confined within the penal institutions themselves. T h e prisons have set up rough systems of classification for administrative purposes. These systems have taken the form of age classifications, recidivism classifications, length of sentence classifications, work classifications, conduct classifications, and, to some extent, health classifications, within the prisons themselves. These classifications, by a rule of thumb method, have given us different institutions—reformatories, penitentiaries, and prisons. They have given us different grades of prisoners and different groups within the prison based on considerations of safety and institutional convenience. But they have been vitiated by two facts—first, the congregate prison has made even these crude classifications useless in practice, and, secondly, the emphasis

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347

upon safety against escape and internal disorder has hampered all attempts at classification within the prison. The result has been substitution of administrative convenience for broad social objectives. The good prisoner and the reformed prisoner have been closely identified. Not only has the inmate's status within the prison been determined by his institutional record, but frequently his prospect of return has been determined largely by his conduct record. And his conduct record, it is now recognized, is but a poor and insufficient basis for determining the prospective usefulness of the prisoner in the larger community. This is due largely to the artificial character of the older prison discipline. Good conduct may not be any adequate indication of the changes that the inmate may or may not have undergone within the prison.

2. Classification and Building At the base of any system of classification must lie an organized and systematized plan for the development of the penal plant. It is not enough to classify. Classification must be followed by the provision of proper housing facilities for different groups. Without this no system of classification, no matter how elaborate and scientific, will have material value. The prison system was developed before general recognition had been given to the multiple factors in the treatment of criminals. It was developed, also, at a time when there was an inadequate recognition of the various types of individuals who constitute the prison population. It is now taken for granted that the population must be grouped for purposes of specialized treatment and control. It is now clear, therefore, that the usefulness of the system of classification will depend upon the adaptability of the general housing program. Hence what every large state needs is a comprehensive program for the development of its penal plant for the care and treatment of the several groups with which it must deal. E v e r y prison system requires the following: 1. A central reception and classification building for all male adult prisoners committed by the courts. 2. A group of structures connected with or apart from the reception and classification building and used for temporary or permanent segregation of special health and problem groups. 3. A series of structures for the handling of the mass of prisoners with a view toward their ultimate release to the community. The receiving and classification building ought to be centrally located. It ought to be large enough to receive all those admitted and house them

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C R I M E AND T H E COMMUNITY

temporarily until they can be properly classified. It ought to be sufficiently well staffed by experts to make possible a rapid and thorough study of all persons committed. Even in the largest states it would probably be best to have a single receiving and classifying center. The cost of transportation would probably be compensated by the more expert and unified practice which a single institution might be expected to develop. There ought, of course, to be provision for easy transfer between the units of the system as necessity determines. With such machinery available, the courts, the prisoners, and the public might feel that the first important step had been taken toward dealing with the problem of the ultimate social readjustment of the convicted person in terms of his possibilities and deficiencies. This would seem to be the first and the essential step in any attempt at developing a modern penal system. Without it there is little prospect for the adoption of a rounded scientific program in dealing with the offender. The development of such machinery has already been undertaken by some states, notably by New York and New Jersey. Directly leading from the receiving and classifying prison there should be a number of structures to receive the special problem or health groups which study of the prison population reveals. For the larger states, where the prison population is large, it would probably be best to have separate institutions for the special health and behavior problem groups, where specialized treatment and control could be provided without the difficulties arising from the management of too large a unit. If the prison population is small such separate institutions may not be feasible. But, whether there should be a series of separate institutions set apart and away from the receiving center or whether the receiving center should be part of a group of institutions all physically connected and all administered as one whole, it is clear that separate provision must be made for the different groups in the total prison population. It is clear also that unless such provision is made no adequate treatment is possible. Some sort of separate provision ought to be made for each of the following groups: 1. The insane 2. The feeble-minded 3. The tubercular 4. Contagious venereal cases 5. The sex pervert 6. The drug addict

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349

7. T h e aged and crippled 8. T h e general prison population a. Those needing maximum-security

buildings

b. Those needing medium-security buildings c. Those needing minimum-security buildings

3. The Insane I t s e e m s i n c r e d i b l e t h a t at this l a t e d a t e a r g u m e n t s h o u l d still b e n e c e s s a r y a s to the r e m o v a l of t h e i n s a n e f r o m p e n a l i n s t i t u t i o n s .

Yet

s u c h an a r g u m e n t s e e m s to be r e q u i r e d in p r o m o t i n g a d e q u a t e t r e a t m e n t f o r insane p r i s o n e r s . T h e D e p a r t m e n t of P u b l i c W e l f a r e of O h i o in its r e p o r t for 1 9 3 0 s a i d : T h e mental and nervous strain to which a prisoner is subjected during his first few months of prison experience is very often the critical factor in producing mental illness. If these incipient cases of mental trouble are allowed to develop and the aggravating conditions under which the prisoner must live are allowed to continue, there is a very great probability of permanent mental trouble. This may mean that the individual will be a custodial ward of the State during the rest of his life. It is proper not only so far as humanitarian treatment is concerned, but from the point of view of actual economy, to furnish these men with a treatment which is suited to their condition. 1 T h e 1 9 3 0 r e p o r t of t h e S t a t e P e n i t e n t i a r y of K a n s a s s a i d : For the past eight years recommendations in this biennial report have been made for a criminal insane hospital, separate and apart from the State prison, where it is now located. T h e State prison is not equipped to properly handle criminal insane patients.

It would seem much more creditable to the State

of Kansas if a building for the handling of the criminal insane, could be constructed on the site and under the direct management of one of our present hospitals for the insane. 2 S p e a k i n g of the g e n e r a l s i t u a t i o n in t h e d i f f e r e n t p r i s o n s , o n e s t u d y said: Few if any prisons were found to be adequately equipped to care for cases of insanity within their own immediate jurisdiction, yet in some prisons were found as many as 40 insane prisoners being kept within a section of the cell block set apart for them. In such cases there are no proper facilities for these 1 Ohio D e p a r t m e n t of Public Welfare, N i n t h A n n u a l R e p o r t , 1930, p. 33. 2

K a n s a s B o a r d of Administration, Seventh Biennial R e p o r t , Correctional

Section, June, 1930, p. S- T o p e k a , 1931.

Institutions

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individuals and practically no medical supervision unless they should develop an acute physical illness.1 Enough has been said to indicate that special provision for insane prisoners is still a serious problem. Of the prisons and reformatories in the country, 45 send their insane to civilian hospitals for the insane. Twenty-four states have special hospitals for the criminal insane. But, in many instances, if the hospitals are overcrowded they refuse to accept these patients. What is the best system of handling insane prisoners ? Certain things seem obvious. N o insane prisoners ought to be kept within prison walls. The receiving and classifying station ought to be empowered to transfer insane prisoners to institutions especially provided for them. It would seem best that the insane should be treated as such, regardless of whether they are criminals or not, and sent to insane hospitals, as is now done by many institutions, with provision for their return to the prison if cured. It would seem also that each case as it arises within the prison ought to be similarly treated. In some of the larger states where there are competent and well organized hospitals for the criminal insane it would perhaps be best to maintain the institutions as they are. In those states where no adequate system of treating the insane is available there seems to be every reason to argue for their commitment to regular hospitals for such diseases. The keeping of insane persons in prisons until their sentences expire seems an unnecessary cruelty, harmful alike to the prisoner, the prison, and the community. It makes cure difficult; it increases the burden of discipline for the prison; it increases the prospect of permanent expense for the State, because neglected cases become increasingly difficult to cure; it is wholly inexcusable in the light of modern practice; it complicates prison discipline and administration and makes any progressive prison program impossible. The first move in any general national attack on the penal problem should be the separation of the insane from the prison population and immediate transfer of insane prisoners from the confines and control of the prison proper.

4. The

Feeble-minded

What is true of the insane is quite as true of the feeble-minded. In this case the method of selection may be less well established. But the behavior difficulties and special problems raised by this type of prisoner 'Rector, op. cit., p. 210.

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351

when in a prison are so serious that, with the aid of the physician, psychologist, and psychiatrist, he ought to be eliminated from the prison population and transferred to an institution especially developed for his type. 1 Only 29 prisons and reformatories make any attempt to discover the feeble-minded among their inmates, and only a few states make any attempt to segregate the delinquent feeble-minded from the rest of the prison population. The most conspicuous example is the Institution for Defective Delinquents at Napanoch, New York. Prisoners of this sort are chronic violators of prison rules and are frequently the butt of the prison community. One prison which has made an attempt at segregation says, " T h e y are no longer annoyed by other inmates, led into wrong doing, or made the objects of practical jokes." This group requires specialized treatment which is not available in the ordinary prison. It seems desirable that in every instance indeterminate sentence should be applied to them. This, at least, seems to have proved a significant feature of the New York institution. Until these special problem prisoners are removed there is little hope for adequate disciplinary reconstruction of the prison proper. The experience at Napanoch has shown that these persons are amenable to a type of treatment which the prison, because of its larger and different type of population, cannot provide. T h e next step in institutional development will relieve the prison of the emotional and disciplinary strain which this recognizable and controllable type of prisoner creates. 2

5. The

Tubercular

There are still prisons in the country which make no adequate provision for separate treatment of tubercular prisoners. This is an obvious shortcoming and needs correction. T o place and keep a tubercular prisoner in the general atmosphere of a prison—especially if his is an aggravated case—is unjustifiable. It endangers the health of the other prisoners and it makes cure for the diseased difficult or impossible. It places an unnecessary burden upon the prison physician, who is not necessarily an expert in this disease and has sufficient work in looking after the routine needs of the institution. It seems clear that separate treatment for tubercular prisoners outside the general atmosphere of the large 1 The Prison Labor Problem in Texas contains an excellent discussion of an attempt to identify and assign mental cases properly — pp. 37-39. 2 Failure to segregate properly the mental cases is reported by the Prison Industries Reorganization in Maryland (p. 27 of the study of that state), Vermont (pp. 83-84), Kentucky (Chap. I l l , pp. 2 - 5 ) , West Virginia (pp. 29-30).

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CRIME AND THE

prison needs to be developed.

COMMUNITY

T h i s g e n e r a l position w a s t a k e n b y t h e

D e p a r t m e n t of P e n a l I n s t i t u t i o n s of the S t a t e of M i s s o u r i w h e n it s a i d : The bad condition of the tuberculosis ward has been mentioned in another part of this report. T h e building is poorly constructed and does not permit the proper treatment of those having pulmonary tuberculosis. N o money should be spent upon this building. Such expenditures would be a mere waste and would accomplish nothing. T h e services for these patients should be separate and apart from a base hospital unit but near enough to use its kitchen and its diagnostic equipment. . . . Patients with contagious disease, venereal diseases, and syphilitic patients are thrown together with patients with non-contagious diseases and clean surgical cases. All patients use the same toilets and lavatories. 1 A l s o w i t h r e s p e c t t o t h e p r i s o n a t C o l u m b u s , O h i o , it w a s s a i d : A t all institutions of the State an attempt has been made to segregate tubercular patients from the general population. T h i s has proven a particularly difficult task at the Ohio Penitentiary. During the summer of 1930 the active tubercular cases were housed in open tents in the penitentiary yard, and when the weather became too severe for the patients to be cared for in this way a portion of the wooden dormitory on the east side of the penitentiary yard was converted into a dormitory for tubercular patients. While not ideal or satisfactory, this provision removes somewhat the danger of infection of other prisoners. It would be desirable, as soon as funds can be made available, that tubercular prisoners should be housed at the London Prison Farm. 2 I n 1932 a n official c o m m i t t e e a p p o i n t e d b y the O h i o S t a t e S e n a t e r e p o r t e d t h a t t u b e r c u l a r p a t i e n t s in the p r i s o n require " i m m e d i a t e a n d m o s t serious c o n s i d e r a t i o n . " W h a t c a n b e d o n e b y p r o p e r c a r e of t h e t u b e r c u l a r p r i s o n e r s

is

s h o w n in N e w Y o r k S t a t e . B y r e m o v a l to a s p e c i a l institution a n d p r o p e r t r e a t m e n t the p e r c e n t a g e of those s u f f e r i n g f r o m this disease h a s b e e n d e c r e a s e d f r o m 7.9 p e r c e n t of the p r i s o n p o p u l a t i o n in 1 9 1 4 to 6.6 p e r c e n t in 1 9 2 3 , to 3.5 p e r c e n t in 1 9 2 6 , a n d to less t h a n 1 per c e n t of the t o t a l S t a t e p r i s o n p o p u l a t i o n since t h a t d a t e .

6. The Venereally

Diseased

A l t h o u g h a g r e a t e r p r o p o r t i o n of p r i s o n e r s are afflicted w i t h s o m e f o r m of v e n e r e a l d i s e a s e t h a n w i t h a n y other a i l m e n t , e x a m i n a t i o n a n d t r e a t m e n t in p r i s o n is of v e r y r e c e n t origin.

In some prisons examina-

1 Missouri Department of Penal Institutions. Biennial Report f o r 1929-30, p. 41. ' O h i o Department of Public Welfare. Ninth Annual Report f o r 1930, pp. 21-22.

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tion was begun as late as 1928. In 11 prisons and reformatories there was no examination of prisoners for venereal disease at the time of admission. Even the Federal prisons did not adopt examination as a matter of admission routine until 1926. T h e number of men suffering with this type of disease in prison is not known. T h e absence of examination in some prisons, the poor examinations in others, and the lack of proper records in many make any definite statement on this subject difficult. Estimates in different prison examinations have ranged between 2 per cent and 50 per cent. T h e Federal prisoners examined in 1926 showed an average of 20 per cent suffering from these diseases. A study in 1928 of 23,994 prisoners showed 16 per cent infected. T a k ing the prison and reformatory population as a whole, a conservative estimate would place the number of venereally diseased prisoners at about 20,000, or approximately 20 per cent of the total. Prisoners received at the classification building ought to be isolated for treatment when found infected, especially when the cases are active and there is danger of contagion for other prisoners. T o admit them into the prison proper is to place an undue burden upon the prison physician and to expose the health of the other inmates to unnecessary danger. The problem of control is different from that of tubercular prisoners in that the treatment is simpler and the cure less problematical. But it is a safe rule not to confine prisoners with contagious diseases in the same building with those who are healthy. A separate structure for the treatment of all cases of venereal disease ought to be provided in the larger states. When a prisoner afflicted with venereal disease is received, he ought to be transferred at once to a hospital unit fitted for the purpose of treatment. Until the case is cured no further disposition ought to be made of it. If the man is suffering from an incurable disease, especially if it is contagious, he ought to be kept permanently away from the larger prison population. If curable, he ought to be segregated until his disease is taken care of before he is returned to the classification building for further study and assignment to such an institution as he seems best to fit into.

7. The Sex Pervert T h e sex pervert is a very troublesome and difficult inmate. Sex perversion is not publicly discussed by prison officials; but those acquainted with administration know that here lies one of the most difficult of problems of discipline. For a picture of the situation one has to turn to the few frank prison autobiographies. T h e prison pervert is a source of

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unending trouble, leading to fights and even to murder. There could be no better means of easing the strain of discipline than by relieving the warden of this special problem. Perverts should be segregated. They, like the feeble-minded, are a danger and a nuisance to prison discipline. Properly they should be looked upon as hospital cases needing special treatment. Separation within the prison proper may be difficult and is psychologically undesirable. Complete removal from the rest of the prison population is essential for the health of the community, both physical and mental. From the receiving and classifying prison these cases should be isolated and housed in a separate structure, with medical and psychiatric supervision. Serious cases of sex perversion are really cases of mental disease. They present a special medical and behavior problem demanding special treatment.

8. The Drug

Addict

Narcotic prisoners, like the venereally diseased, the tubercular, and the feeble-minded, should be considered a special group and treated separately. Like the group of venereally diseased, they ought to be segregated in a structure especially devised for that purpose, and kept there until cured before being returned for assignment. The burden placed upon the administration of the ordinary prison by the presence of the narcotic group is almost beyond belief. The ingenuity expended in bringing narcotics into the prison taxes the vigilance of the best of prison administrations. No prison has completely succeeded in bringing the traffic to an end. Narcotics find their way into the prison in a hundred different ways, and the discovery of one leak merely leads to the making of another. If the narcotic group were concentrated in a place where they could be watched and treated as diseased as well as dangerous, it would be a great relief to the warden, since it would materially lessen the pressure upon his guard to accept bribes. In part, at least, the "dope" is brought in by guards. There is no price which the addict will not pay for it. Attempts to bribe guards are mostly made in this connection and are not infrequently successful. The presence of even a small number of addicts compels officials to adopt severe disciplinary methods in the effort to prevent the introduction of drugs into the prison, while the danger of violence from prisoners who are under the influence of drugs is another source of difficulty and thus occasions further repressive activity. A small number of drug addicts thus shapes the disciplinary environment of the entire population. The only way out,

CLASSIFICATION OF THE PRISON POPULATION

355

whether from the point of view of discipline or from that of health, seems to be segregation. The Federal prison system has now made provision for complete removal of its drug addicts to a separate institution. The adoption of this practice by the states would prove a boon both to prisoners and to prison officials.

9. The Aged and Crippled The aged and the crippled create another special prison problem. Any comprehensive system of prison organization ought to make special provision for their care and control. T o keep old men who are weak and sick, but not sick enough to be confined within a hospital, and to keep the lame, the halt, the blind, in the sort of building and under the disciplinary organization meant for the more desperate and hardened criminals is unnecessary, expensive, and troublesome. These people need freedom, and require only small supervisory staffs. Instead of being housed behind high walls, in buildings that cost $3000 and $4000 per bed to construct, these persons could be removed from the fortress type of prison and, with a minimum of expense, housed satisfactorily in a special camp where work fitted for their special needs could be provided, or placed in roomy structures outside the prison wall. These arrangements would automatically relieve the prison of much of its overcrowding and relieve the state of the necessity for building new prison structures of the older type.

10. The General Prison Population Even after the temporary or permanent isolation of the special problem groups discussed above, the administration still must deal with the mass of the prisoners. Just what proportion of the total prison population these groups would compose is not clear. It is probably true that not more than 20 per cent of the prison population at any time would fall into the groups designated as needing permanent separation. These groups include, as we have noted, the insane, the feeble-minded, the tubercular, the venereally diseased (most of whom would be separated but temporarily), the sex pervert, the drug addict, and the aged and crippled. The removal of these groups would ease the strain of administration, and prison officials could more readily concern themselves with the preparation of what may be described as the normal prisoners for their return to society.

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T h e problem of classification and individualization has not been finally solved by the removal of the special-problem groups from the prison. It is clear that each of the remaining prisoners requires special consideration and that mass treatment ought to be avoided. I t is now generally recognized that a further classification may be made in terms of custody. I t is suggested, therefore, that buildings be so constructed as to make possible a grouping of prisoners in minimum, medium, and maximum security structures. This is certainly an advance over the older prison theory, and if widely adopted it will bring about a complete transformation in the functions and results of prison administration. T h e basis of the classification is protection against escape. There has been a belated recognition that only a small percentage of the prisoners are really dangerous from this point of view and that a considerable percentage can be placed in medium or minimum security structures. T h e emphasis, however, should be not mainly upon secure custody but rather upon the ultimate social rehabilitation of the offender. T h e questions to be answered, then, pertain not merely to health, or intelligence, or vocational competence, or any other simple and single factor, but rather to the probability of successful adjustment to the community upon release. This is a far more important matter than is certain custody. Mere safety from escape is no adequate basis for final judgment of the prisoner, and is an insufficient basis for ultimate release. T h e prison must be so organized as to make its internal life as nearly as possible approximate the life outside so that a man's conduct may be gauged as if it were conduct in the larger community. How will he behave upon release? T h a t is the basic question. No formal classification can finally and definitely answer that question. Behavior in a complex world is a very different matter from behavior in a supervised and controlled environment with specific objectives, tests, rewards and punishments. It is only when the prisoner can show that his behavior has been good in a community where conduct approximates that of free life that he has given more than formal proof of suitability for release. The question to be answered is always, How soon can this man safely be returned to the community ? That is what the classification of the prisoners should aim at. How great a risk is this particular individual on release from prison ? How soon can that risk be taken with a measurable degree of safety ? W h a t elements are needed to bring his behavior characteristics to the front so that the risk he represents may be indicated while he is in prison, rather than after he is released? T h e answer is to be found in the division of the normal prison population

CLASSIFICATION OF THE PRISON POPULATION

357

into three broad groups : those requiring maximum security, those who may safely be housed in medium security, and those requiring only minimum security. This is significant not merely from the prison administrator's point of view but also from the point of view of ultimate return to society. It is significant because in the least-security buildings life might be organized on much more nearly normal lines, as nearly as possible approximating the actual living conditions which the prisoner will have to meet upon his release.

11. Maximum, Medium, and Security Buildings

Minimum

T h e American prison had historical roots in the assumption that isolation was desirable as a means of personal reform. On that principle the Pennsylvania buildings were constructed. T h e break with the system in 1819 in the Auburn Prison, which in turn became the model for most other American prisons, was but a partial repudiation of the idea of isolation. It attempted to accomplish the same objective by imposing perpetual silence upon the prisoners even if it worked them together in shops. It achieved isolation at night by housing the inmates in separate cells. T h e question whether it was necessary to house all the inmates in the same type of cell was not raised. All prisoners, regardless of their physical or mental status, regardless of health or age, were grouped together. In time certain modifications began to appear in prison organization. Separate provisions were made for the diseased and for the young. In some of the prisons the development of farms brought certain numbers of prisoners outside the prison walls for the working d a y ; and later, with the development of road work upon which State prisoners were used, many were placed outside the prison walls for long periods of time and at long distances from the prison proper. Since 1900 there has been a considerable extension of the honor system in certain prisons, under which many inmates work practically without any guard at long distances from the prison walls. This has been an empirical development. It has not infringed upon the idea that the prison is a walled structure for all prisoners. Most of the prisons built since 1900 have practically ignored the experience of many prisons that a considerable percentage of men were being kept outside under simple housing arrangements. It has only recently dawned upon prison administrators that, as a matter of fact,

358

CRIME AND THE

COMMUNITY

a large number of men are not kept under the most elaborate system of security available. In view of this, future prison construction ought to provide different types of architectural arrangements for the various proportions of the prison population. The numbers safely to be freed from the strictest detention must be determined experimentally. Practice has proved all proportions possible. Prisons have succeeded with 10 per cent outside the walled prison; they have succeeded with 50 per cent outside the walled prison; and some prisons have succeeded with all their prisoners kept in other than expensive and elaborate buildings. In 1920 the warden of the Michigan State Prison at Jackson said, "Of 1297 men, 322 sleep and eat outside the walls; 130 go outside every morning. . . . These men sleep outside and are handled without guns or guards." For the same institution the report of 1930 says, " W e had 1003 inmates on outside assignments . . . or 27 per cent were housed in the less secure type of prison." The Wisconsin State prison reported: "Just over 400 men have been assigned to work outside the walls of the prison. Of this number only one has violated the confidence placed in him by escaping." For the Federal prison at Atlanta, it is reported that an average of more than 300 prisoners were employed as trusties outside the walls in 1930. The Federal Bureau of Prisons reported for Leavenworth Prison for 1930 that " T h e overcrowding would have been still more acute, except that on June 30, 771 prisoners were in road camps." Speaking of these road camps, the report said: " T h e prison-camp experience has been an entire success. It relieves overcrowding in the walled institutions; it provides the men with employment without throwing a single civilian out of employment." There were in 1930 1500 Federal prisoners in road camps. The Superintendent of the Federal Correctional Camp at Fort Eustis, Virginia, reported in 1933, I n f e w penal institutions of the world has the community idea been as w i d e l y developed as in the Federal Correctional C a m p at F o r t Eustis, Virginia. In fewer still have all visible suggestions of restraint been so entirely effaced. Its inmates are housed in buildings accommodating groups not exceeding thirty members, selected, as nearly as possible, from individuals of similar ages, or of similar tastes and mental habits. From these quarters, they go either by d a y or night, entirely without restraint or immediate supervision, to their various tasks, sometimes at distances of a mile or more from headquarters. T h e y perform their work in a creditable and interested manner, and return when through as they would in a n y free c o m m u n i t y . 1 1 United States Bureau of Prisons, Federal Offenders, 1932-1933, p. 75. Fort Leavenworth, 1933.

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The warden of the Department of Public Welfare of Ohio for 1930 indicated that 1 1 0 8 prisoners were kept out in camps. The State prison of Montana had 20.5 per cent of its total population outside the walls. The State prison of Oregon had nearly 400 men outside the walls at a single time as indicated by its 1930 report. The warden of the State prison in Colorado said in 1924, W e have worked 40 to 60 per cent of our able-bodied men on the highways of Colorado, and our percentage of loss has been very'small.

In fact, it has

not been as much as it had been in previous years prior to the installation of this system in our State when all the men worked inside.

The Commission of Correction of Massachusetts reported, " T h e experiment of taking 60 men out of the prison at Charlestown and placing them on full trust in an open honor camp was successfully carried out and demonstrates the fact that there are many prisoners for whom stone walls and iron bars are not necessary." The warden of the State prison of Florida, speaking in 1923, said, " W e check our men out in crews of 5 to 25 to prison foremen. They have no guns; we have no guards." A discussion of the problem of prison architecture pointed out that A n analysis of the records of the Leesburg, N . J . , prison farm (cottage system, no bars, wall, or fence) shows that 20 per cent of its prisoners were convicted of murder and manslaughter. Escapes from this prison farm in 1 0 years have been less than one-half of 1 per cent, and all but four men were recaptured.

This experience has been duplicated by the Federal reformatory at Chillicothe, Ohio. The Detroit House of Correction keeps 90 per cent of its inmates in minimum-security structures. This is true also of the Indiana State farm. Perhaps the most illuminating experience is recorded by the State prison at Auburn, N. Y . An investigating commission reported: " T h e emergency which followed the prison riots of 1930 forced the opening of temporary road camps. . . . So well has the scheme worked that it has been possible to rate the colony group at Auburn with far more assurance than is possible elsewhere. . . ." There were in this colony at the date of the report 3 1 7 prisoners. This is significant because it is the only prison-colony group of State prisoners, and it was established not because of a deliberate policy but because of necessity. The record of escapes in such institutions is negligible; it averaged less than 1 per cent for 12,621 prisoners in 27 states where a study was made.

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CRIME AND THE

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In the light of this experience, what is the proportion of prisoners needing to be kept in the strongest of prison buildings?

The North

Carolina Prison estimated that less than 15 per cent were to be classed as incorrigibles.

In the new F e d e r a l prison at L e w i s b u r g planned for

1200 prisoners " m a x i m u m security is provided for only about prisoners."

100

F o r about 300 more, outside rooms with barred windows

h a v e been provided.

T h e balance is being kept upon w h a t

be called medium security.

T h e r e is no standard

might

division of

the

prison population into the g r o u p s which c a n be k e p t under minimumsecurity conditions, those w h i c h need medium security, and those which need maximum security. E s t i m a t e s range from as low as 10 per cent for those that can be placed outside to as high as 90 per cent or even more. R e c e n t discussion in N e w Y o r k placed the proportion at about 2 5 per cent of the total number of prisoners. Another 34 per cent were classed as " a temporary restricted g r o u p . " I t is to be remembered that all these discussions are empirical in nature. T h e y do not refer to a n y broad study of the problem or to a n y conclusive evidence. Experience shows that m a n y different systems h a v e w o r k e d . It shows that some wardens w h o h a v e placed 10 per cent outside h a v e succeeded with that percentage, that those w h o h a v e placed 20 per cent outside h a v e also succeeded, t h a t those w h o have had the courage to place 50 per cent and even more of their total prison population outside of strong walls also have succeeded. I t is not argued that all prisoners could be placed outside the walls, but the evidence available gives rise to a strong presumption that a v e r y much larger percentage of the prisoners than are at present placed outside the walls could be removed to less secure structures without seriously endangering the regime of the institution.

T h e r e is

no record of riots, or fires, or jail breaks, or any other unusual experience in a n y one of the lesser-security housing experiments which thus far h a v e been tried. In response to this experience recent prison construction has attempted to restrict maximum security to a small proportion of the inmates.

T h e building of the Federal Government at L e w i s b u r g has

already been cited. Another instance of the same t y p e is the plant of the Massachusetts State Prison C o l o n y at N o r f o l k .

T h i s project, while

under construction, w a s described as f o l l o w s : The eight buildings of three units each, to house 1,200 inmates, are so designed that their strength and interior arrangements can be varied to meet the needs of different classes of prisoners as experience dictates. Even the disciplinary and receiving building (the jail) will have different sections for different

CLASSIFICATION OF THE PRISON POPULATION

361

types of prisoners. T h e first building, now under construction, has been built for 1 5 0 grade A inmates, divided into three units of 50 each. It is of ordinary fireproof construction without bars or special security devices. E a c h unit contains twenty-five single outside rooms, three 7-bed rooms, one 4-bed room, two officers' rooms and bath, a toilet and shower bathroom on each of the three floors, a common room, a dining room, a barber shop, a locker room, and a basement workroom. 1

It seems clear, therefore, that we are developing a new policy in prison building. The old bastile type is in disrepute, in some places at least, and it may be that few if any prisons of the older type are to be built in the future, although some structures have recently been completed that still retain all the major characteristics of the old Auburn model. The reason for the change is obvious. Experience has shown the older scheme of building to be unnecessary for all prisoners. The proportion for which it remains necessary is yet to be determined. A differential building arrangement makes possible classification and segregation of small groups of prisoners for specialized treatment. The building program involves much less cost. Prison buildings of the older type are increasingly expensive to build. The new plans for the Detroit House of Correction are estimated at $3000 per inmate; the cost per inmate at Rockview, Pennsylvania, was 83760. The cost for the prison at Attica, New York, is estimated to be as high as $5000 per inmate. Part of this cost is due to the new wall, which is " a highly refined engineering project." When, under investigation, it was asked, "From a practical point of view, what is its particular advantage ? " the answer was, "Nothing—it has an esthetic value that may have been overdone." This may be contrasted with average cost for a cottage dormitory at Lorton, Virginia, which is S440 per inmate. The following is a good summary of recent trends in prison building: It is almost unbelievable that the same period of time which produced numerous studies of the practical possibilities of less expensive, smaller institutions of the medium and minimum security type, and which witnessed the development of Annandale reformatory and the prison farms in N e w Jersey, Wallkill prison in N e w Y o r k , the R o x b u r y Penal F a r m in Maryland, the reforestation camps in Wisconsin, and the revision of the plans of the Rockview Branch Prison in Penn., should also be characterized by the completion of some 1 Annual Report of the Commissioner of Correction of Massachusetts for 1929, p. 31. It should be added that a high wall has been built around this model prison, so that its claims to novelty, while striking, are not so remarkable as one might assume from the quotation above.

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CRIME

AND

THE

COMMUNITY

of the largest and most costly institutions of the bastile tradition.

Jackson,

M i c h i g a n , built for 6 0 0 0 men at a cost of approximately $ 8 , 0 0 0 , 0 0 0 ; the N e w E a s t e r n Penitentiary a t Graterford, providing for 3 2 0 0 inmates, 8 7 , 6 4 8 , 4 3 7 ; A t t i c a prison in N e w Y o r k , with a c a p a c i t y of 2 1 2 5 , costing a p p r o x i m a t e l y $ 8 , 9 5 6 , 0 0 0 ; and the new prison at Stateville, Illinois, with its freak circular cell houses, which cost the state about $ 1 0 , 0 0 0 , 0 0 0 ; these are all as out of touch with fundamental modern penal concepts as they are antagonistic to modern demands for governmental economy. I n planning all of these institutions, architectural design and building materials h a v e been relied upon to take the place of intelligent, constructive administration, and the results of careful studies of the characteristics and needs of the prison population have been disregarded. 1

The minimum-security buildings are considered sufficient if they approximate the army type of cantonment. This type of building, easy of construction and low in cost, has the immediate great advantage that it can be suited to relieve overcrowding in prisons without requiring heavy expenditure for new structures. In fact, it seems that a prompt and judicious but general adoption of these structures in some of the states would make unnecessary the heavy investment in bastile prison buildings. It certainly would not seem desirable to reproduce a type of prison structure which other states are abandoning as unnecessary and burdensome. The present period is essentially one of experimentation in the nature and type of prison building for a classified prison population, and heavy commitments ought to be avoided until such experimentations have passed a preliminary stage. Account must be taken also of the psychological importance of the differential building programs. The prospect of transfer to a lessersecurity building with the promise of greater freedom and normality tends to relieve the strain even within the walled maximum-security prison. It benefits the men, of course, from the point of view both of health and social relations, and makes them more amenable to the proper sort of influence. It makes segregation possible because, with the low cost of construction, different units can be developed easily or separate accommodations can be found for different groups in separate small buildings. The record shows that the danger of escape is not any more serious under this type of construction than it is under the older. It is, however, always to be remembered that these buildings are designed for the lesser criminals ; for those that are better release risks ; for those whose crimes are classed as the least dangerous to the community. 1

Handbook

of American Prisons and Reformatories.

1033. pp. xliv-xlv.

CLASSIFICATION OF T H E PRISON POPULATION

363

A modern prison program requires a centralized receiving and classifying prison. It requires the temporary or permanent hospitalization and segregation of the special problem groups. It then calls for the broad division of the prison population into three major groups for maximum, medium, and minimum security housing. Within these groups there should again be as many subdivisions as seem desirable—tentative and experimental in character. These three broad groups should be housed in broadly different types of building with decreasing disciplinary provision and increasing freedom as a means of preparation for release. The prison population should be afforded a gradual approach to freedom as the day of return to society comes nearer. It is in this direction that experiment with penal administration seems to hold the greatest promise. BIBLIOGRAPHY The

Annals

of the American

Tomorrow."

Academy

of Political

and Social

Science.

" P r i s o n s of

V o l . 157 ( S e p t e m b e r 1 9 3 1 ) .

Illinois P r i s o n I n q u i r y C o m m i s s i o n . KLEIN, PHILIP.

Prison

Methods

The Prison

in New

York

System State.

in Illinois.

1937.

Columbia University

Press,

1920. N e w Y o r k S t a t e . C o m m i s s i o n to I n v e s t i g a t e Prison A d m i n i s t r a t i o n and C o n s t r u c t i o n (Sam A. Lewisohn, Chairman). York

State.

The Classification

of the Prison

Inmates

of

S u p p l e m e n t a l report s u b m i t t e d b y V . C . B r a n h a m , D e p u t y

New Com-

missioner, N e w Y o r k State D e p a r t m e n t of C o r r e c t i o n , F e b r u a r y 15, 1 9 3 1 . Official R e p o r t s of the several S t a t e c o r r e c t i o n a l and penal institutions. A Preliminary

Report

on an Educational

Project

at Elmira

Reformatory.

Special

report . . . presented to the L e g i s l a t u r e . . . F e b r u a r y , 1933. Prison Industries Reorganization Administration. Problem

in Maryland,

RECTOR, FRANK L . atories.

S u r v e y s entitled The Prison

Labor

etc. W a s h i n g t o n , D . C . , 1936, 1937.

Health

and Medical

Service

in American

Prisons

N a t i o n a l S o c i e t y of Penal I n f o r m a t i o n , N e w Y o r k , 1929.

and

Reform-

CHAPTER X V

• Prison Labor and

Industry

It has long been recognized that idleness in prison is bad for both the inmate and the institution. Because of this, and because labor has been looked upon as a punitive instrument and therefore as an element in carrying out the sentence for crime, the demand for labor in prison is a long-standing one. In early days nonproductive labor devices were employed in some institutions to carry out the sentences to hard labor. These devices included carrying a cannon ball to and fro, the treadmill, and the crank. Obviously, these served no productive end, but filled the need for "hard and servile labor." In spite of this background large numbers of prisoners are kept in idleness. This is true of most of those serving in county jails and workhouses, and of many men confined in other and larger penal institutions. Meanwhile, the increased crowding of prisons, the comparative inability of penal institutions to keep up with technical changes resulting in lower costs in outside plants, and the restrictions placed upon the potential market by legislation as well as by opposition of consumers to "prison-made goods" have combined to make the problem of prison labor more acute. At the same time, since the size and cost of maintenance of the prison population is increasing while its average age is decreasing, some solution of the labor problem becomes more necessary than ever. In fact, during the depression the attempts to deal with the aggravated situation through the NRA and the industrial codes created what amounted to an emergency for prison labor and prison industry. Historically a variety of prison industry and labor systems have been used in the United States. None of them are free from criticism and none serve the ends demanded of an ideal system. Upon the emphasis given to the broad aims of a penal sentence will depend the particular service which it is believed that any system of prison labor ought to perform. Since more than go per cent of all prisoners ultimately return to society, no prison industry in use can completely neglect their welfare. Their health and well-being must be preserved not merely on humanitarian grounds, but because of the danger that they may become public charges or sources of infection through contagious diseases acquired in

PRISON LABOR AND INDUSTRY

365

prison. Such an outcome would throw an unfair burden upon the community in return for any benefits that a system of labor might bring with it. What is true of health and well-being is true also of any reformative influence that the prison may involve. It would be dubious public policy to sacrifice the possible reformative influence of a penal sentence for the sake of pecuniary gain. It might be argued, at least theoretically, that the state ought not to be burdened with the cost of maintaining the adult prisoner. In an ideal scheme he ought to be able not only to support himself but to help to cover the cost of investment and depreciation of the industrial and housing plants which the state provides for his safekeeping and employment, as well as to contribute to the support of his family outside. In fact, some states have an industrial arrangement which appears to contribute a financial return over and above the actual cost of maintenance and upkeep of both the prisoners and the plant. While this arrangement is desirable, it has doubtful worth if its achievement is possible only under conditions making training and reformation difficult or impossible. To all these considerations must be added the danger of unfair competition with outside labor and industry. This arises from the state's underwriting part of the costs for the prison contractor so that outside industrial establishments find it impossible to compete with him. In this event public money brings private profit. The type of labor best adapted to a penal institution must be determined, therefore, with an eye to its effect on the health and well-being of the prisoner, its influence upon his possible reform, its bearing on state expenditures and income, its contribution to a wage for the prisoner as a means of maintaining a self-respecting relationship with his dependents, and its competition with free labor and industry. A number of different systems of labor have been tried during the last hundred years. Each has its strong and weak points, and the ultimate decision as to which system is preferable depends upon a number of factors. Sound decisions are not easy, and any system adopted may have disadvantages that will be subject to criticism and objection. Fundamentally, any discussion of the relative merits of different systems refers back to the question of the function of the penal institution and the degree of responsibility that the state ought to assume for shaping the prisoner's future conduct. The question is whether immediate benefits are more important than future ones; whether the gain made by the state, either in money or in the avoidance of immediate administrative responsibility, is greater than the prospect of a reformed criminal.

366

CRIME AND THE COMMUNITY

Assuming reformation to be the greater gain, a further question concerns the method most feasible as a reformative influence. Where suffering and pain are considered the means of reformation, one labor system will seem most desirable; where education and proper stimulation are thought more feasible, another system is likely to be preferred. The question, moreover, is not merely what are the prisons for; it is also what methods are likely to be most successful in achieving the ends sought. The conflicts over types of employment are therefore not only practical but also ideological. Fundamental attitudes and beliefs are involved in whatever system is finally established and used.

1. The Lease System The least defensible system of labor in prisons is the lease system. Happily, this system has practically disappeared. As late as 1930 it was still retained in law, if not in practice, in Louisiana, North Carolina, and Arkansas. It is a matter of record that this system was productive of great cruelties. The prisoner was turned over to a private contractor, who, for a financial consideration, was given complete control over him to use, feed, and discipline as he saw fit. The state, it is true, retained a right of inspection. But in practice its inspection did not prevent barbarities from being practiced upon the bodies of the prisoners. It did not insure decent lodging, sanitation, proper and sufficient food, or adequate medical care. In Florida, for example, the lease system was abolished in 1922 after a nation-wide scandal following the killing of Martin Tabert, a young North Dakota boy, who was committed to one of the convict labor camps for vagrancy. Unless the destinies of the prisoners are of no concern to the state, and unless the immediate financial return and the lack of administrative responsibility are regarded as primary rather than secondary considerations, there is little to be said in favor of the lease system. Its complete disappearance, both in law and in practice, is to be desired.

2. The Contract

System

A different system, little better in practice than the lease system, is the contract-labor system. This system is still in use in a number of prisons. In 1928 there were 1 1 prisons and 3 reformatories which used the contract-labor system exclusively, and 9 prisons and 2 reformatories which used it in part. There were in 1928, therefore, 25 institutions

PRISON LABOR AND INDUSTRY

367

employing this labor system in some form. In 1923 it was responsible for the production of prison goods valued at $18,240,350 out of a total prison production of $76,096,960. It is now generally recognized that the Hawes-Cooper Act, which went into effect in 1934, and which was designed to force prisons still having the contract system to abandon it, was the result of many years of state and national agitation in opposition to contract labor. In fact, opposition to the contract system was written into the law of Massachusetts as early as 1828. Later the Massachusetts statute was repealed and the contract-labor system reintroduced. But opposition to the contract-labor system continued and became especially effective after the Civil W a r . This hostility was reflected in the gradual decline of the percentage of prisoners in state prisons employed under that system. T h e percentage of prisoners thus employed had shrunk from 40 per cent in 1885 to 12 per cent in 1 9 1 2 . This consistent opposition to the contract system, which in 1934 was formulated in Federal law, has many roots. ( 1 ) The contractor's interest in profit leads him to exact as much labor as possible from the prisoners. ( 2 ) If necessary, he employs the disciplinary machinery of the prison to enforce a task system which may be inhuman and cruel. ( 3 ) T o secure the support of the guards, he finds means to make them personally and financially interested in the amount of work done by the prisoners. ( 4 ) This interest leads to corruption of guards and, not infrequently, wardens, of which there is evidence on record. ( 5 ) The system gives the few contractors who have prison contracts an undue interest in the type of prison warden and prison guards employed in the prison, and leads to the use of influence to retain those prison officials who are desirable, and eliminate those who are not desirable, from the contractor's special point of view. (6) It tends to place the interests of the contractor above the interests of the prisoners, and to make the prison organization, which is a public institution charged with a public purpose, serve private ends. ( 7 ) T h e existence of the contract system has led in many prisons to the introduction of contraband, and thus to corruption of prisoners and demoralization of the prison regime. These charges are of peculiar significance from a purely administrative point of view. Evidence of interference with prison discipline and the tendency to cruelty is voluminous. A few examples are here drawn from prison investigations a number of years ago, to show that the faults are involved in the system itself and imply no reflection upon any state no w employing it.

368

CRIME AND THE

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I t w a s d i s c o v e r e d in t h e s t a t e p r i s o n s in N e w Y o r k in 1 8 6 6 t h a t T h e y [the contractors] do not only insist in some cases that the convict shall be punished, but in other instances endeavor to screen him from the punishment which the interests of the institution demand that he shall receive. T h e y even lay plans to entrap the prisoners so that acts may be done by which punishment may be sustained. . . . T h e contractors introduce into the prison a class of persons who are unfit to associate with the prisoners and who greatly abuse the facilities there accorded for intercourse with convicts. These persons are of two c l a s s e s — l a b o r e r s and instructors of the convicts. . . . T h e y introduce surreptitiously into the prison forbidden wares, such as articles of food or spirits. T h e y bring these in large quantities under the guise of the materials to be used b y the contractors and then sell them to the prisoners at enormous profits of one to two hundred per cent. T h e y also furnish the convicts at exorbitant rates the means of carrying on clandestine correspondence by letters to their friends, at the same time robbing the " m a i l " which has thus been intrusted to them. T h e utmost difficulty is found in detecting this villainy, because the word of a convict can not be taken, and because when complained of they assume and maintain with skillful and surpassing impudence the air of injured virtue. 1 T h e chaplain testified: I was eyewitness to what I a m about to relate. A certain contract had expired where some 50 men were released from productive labor. These men were brought into the prison yard and made to stand up in a row with their backs against the wall of the main prison. T h e several gentlemen then holding contracts were summoned and asked on what terms they were willing, temporarily to take the labor of these convicts. T h u s invited they passed up and down the line, examining the men, one by one, closely scrutinizing their persons, and at the same time indulging in jocular and sometimes coarse remarks thereupon. T h e warden at length said, " W e l l , gentlemen, what will you give for the labor of the whole lot together? " A contractor responded, " I will give 20 cents a d a y . " A second advanced slightly on that offer. T h e bidding then went on as at an ordinary auction sale and until no higher per diem could be obtained, when the men were l e t — s t r u c k down I might s a y — t o the highest bidder. 2 A n i n v e s t i g a t i o n i n t o t h e p r i s o n s y s t e m in M a r y l a n d in 1900 s h o w e d . . . 3,067 punishments, of which 736 were cases of "cuffing u p " (hands stretched up above the head and fastened in iron cuffs, and the weight either lifted off the heels or entirely off the feet) during 1909. Almost invariably these punishments were recorded as due to failure to get work or indifference to w o r k ; that is, the prisoners were punished because the work did not satisfy the contractor. 3 1

K l e i n , op. cit., p. 276. H. Sutherland, Principles

3Edwin

a I b i d . , pp. 277-278. of Criminology, p. 434. Philadelphia, 1934.

PRISON LABOR A N D

INDUSTRY

369

Sutherland further summarized this testimony as follows: A n investigating commission found, in addition, that the prison was decidedly lacking in sanitary and medical facilities, many undesirable transactions were being made between prisoners and private employees of the contracting company, that the prisoners hated the warden bitterly; and that the warden had been using his influence in suspicious and underhanded ways to prevent the passage of legislation that would end the contract system. 1

Commenting on this testimony, Sutherland called it " a n illustration of some of the worst features of the contract system, which might be found duplicated in very many other places." N o appreciation of the agitation against the contract-labor system can be had without an insight into these facts. It would have been much more difficult to work up opposition to this system of prison labor if it had not been possible to indict the contractors and their supporting prison officials for unnecessarily cruel and abusive treatment of helpless prisoners for the sake of private gain. Humanitarian opposition to the contract-labor system was specially effective in the final judgment that it should be given up. Another valid and important criticism of the contract system is that it does not lend itself to training prisoners with a view to their release. It has been argued that the state, by placing prisoners under contract, is sacrificing its interests and those of the men in the vocational training that might result from a proper system of prison labor. An examination of the industries under contract during 1928 given in the Handbook of the National Society of Penal Information showed the following: Apron, broom, foundry, furniture, hosiery, horse collar, pants, shirts, shoe, tailor, tire salvage, whip, wire, and underwear. Of these 14 contract industries, 6 represented in the textile and tailoring group included 74 per cent of all the prisoners employed under the contract-labor system. One industry alone in this group, shirt making, accounted for 43 per cent of all the prisoners under that system in the country in 1928. Shirt making is essentially an industry in which women and girls are employed outside the prison, so that any training that the working at shirts might impart in prison would lead to little opportunity for a man who had had this training to secure employment after release. It is noteworthy that, if the shoe group is added to the hosiery and textile groups mentioned above, 81 per cent of all the prisoners were employed in these three industries. 1

Sutherland, op. tit., pp. 434-435.

370

CRIME

AND

THE

COMMUNITY

N U M B E R OP E M P L O Y E E S I N CONTRACT-LABOR INDUSTRIES I N 1 9 2 8 1

Contract Labor

Industries

Apron Broom Foundry Furniture Horse collar Hosiery Pants Shirt Shoe Tailor Tire Salvage Whip Wire Underwear

Sumber of Employees

Percentage of Total

3

404 246

2

472

4

1290

10

112

I

604

5

1337

11

S282

43 7 6

79 S 727 11 97 70 688 12,135

— I I

6 100

T h e e x t e n t t o w h i c h c o n t r a c t - l a b o r i n d u s t r i e s in p r i s o n t e n d t o s a c r i fice t h e v o c a t i o n a l i n t e r e s t of t h e m e n m a y b e s e e n if w e c o m p a r e t h i s list of e m p l o y m e n t p r o v i d e d u n d e r c o n t r a c t in t h e 2 5 i n s t i t u t i o n s w h i c h still h a d s o m e o r a l l of t h e i r l a b o r u n d e r t h e c o n t r a c t s y s t e m w i t h s u m m a r y s t a t e m e n t of t h e l a b o r s k i l l s r e p r e s e n t e d b y 3 8 1 4 m e n v i c t e d in t h e s t a t e of N e w Y o r k , a s g i v e n in t h e f o l l o w i n g t a b l e : A N A L Y S I S OF T H E OCCUPATIONS OF 3 8 1 4 M E N W H E N CONVICTED 2 Occupations

Per Cent of Total Unskilled 12.1 S k i l l e d , . . . plumbing, carpentry, tinsmithing, electrical installation, steam fitting, printing 37.4 Office work, . . . stenographers, clerks, bookkeepers, auditors 7.4 S k i l l e d f a c t o r y trades, . . . machine shop, cabinetmaking, foundry, sheet metal 8.M i l l trades, . . . textiles, shoes 2.5 A g r i c u l t u r e and related vocations 3.5 Laborers 18.4 T e a c h e r s , . . . lawyers, bankers, artists 4 R e c r e a t i o n leaders, . . . actors, musicians

1.3

N o occupation Unclassified, . . . chauffeurs, motormen, policemen Miscellaneous, . . . bill posters, fruit dealers, life guards, promoters

g 5.8 1.6 100.0

1 2

Computed from data in Handbook of American Prisons and Reformatories, Report of the New York Prison Survey Committee, p. 177. Albany, 1920.

a

con-

iç2ç.

PRISON LABOR A N D

INDUSTRY

371

In the classification of the prison population in New York it is seen that only 2.5" per cent of those committed belonged to this group of hosiery, textile, and shoes, as against 81 per cent in the contract prison industries. It is therefore clear that the contract system does, as charged, sacrifice the vocational interests and abilities of prisoners for immediate gain as against their future usefulness. Moreover, the contract-labor system leads to deliberate misrepresentation. This was fully developed before the Senate Committee on Interstate Commerce in its hearings on the Hawes-Cooper bill (S. 1940) during February, 1928. It was shown there that goods manufactured in the Indiana State Prison were branded as manufactured by a private manufacturer. It was shown also that the shoes manufactured by prisoners under the contract-labor system were marked with a false and misleading brand bearing the United States Army stamp and sold as if they were surplus war material. This evidence is the more interesting and significant in view of the Indiana law prohibiting the sale of prison-made goods unless branded as such. It was further developed before the Senate Committee that thirteen states prohibit the sale of convict-made goods in the open market, but that these states could not prevent such sale of goods made in other states, because these goods were fraudulently branded by the prison contractors, who, with the consent of the prison officials, not only violated the law of the state in which the goods were made but connived to violate the laws of other states against the marketing of convictmade goods. The undesirability of a system of labor and industry which has to depend for the sale of its products, in part at least, upon deliberate conniving to violate a state law, and upon deliberate misrepresentation of the origin of the products sold, is obvious. Former Secretary of Labor James J . Davis said of this system: T h e prisoner who sews a false label in a prison-made garment, indicating that it was made by an outside manufacturer, knows he is forced to become a liar and a cheat. If our jails and penitentiaries teach a man to lie, what can we expect of that man when they set him free ? 1

A further defect of the contract-labor system is that it involves state subsidy of an industry at the expense of other privately supported industries in the state. It is clear from past and present evidence that the contract labor system can exist only on the basis of indirect state sup1

U . S. Congress, Senate Committee on Interstate Commerce, Hearings on S. X940, p. 71. Washington, D. C., 1928.

372

CRIME AND THE

COMMUNITY

port. T h e wages paid for prison labor, the cost of rent, power, and light, the control of labor with the aid of the state, all contribute to giving the prison contractor a favored position as against other industries in general and the same industries within the state in particular. M a n y citations covering this point could be made.

In 1925

the

commissioner of correction of the state of N e w Jersey made the following s t a t e m e n t : In the balmiest days of contract labor in New Jersey, only a part of the prison population was employed and the gross earnings of the State were $148,000. The State permitted the contractor the use of shops, power, light, heat, etc., without cost to him, so that the real income to the taxpayers was considerably less than $148,ooo. 1 T h e superintendent of industries of the Illinois State Prison in Joliet, during the life of the contract system, said to a State investigating committee: The contractor paid the State 50 cents per day (at Joliet it was 55 cents) for each prisoner employed. The contractor paid the State nothing at all for the first six weeks of employed prisoners' labor. The State furnished buildings for manufacturing and part of the machinery. Only in the cooper shop were the prisoners paid, and even there only for overtime. Cooper-shop work was trying toil and overtime work was overtaxing. The industries maintained at Joliet under the contract system were shoe, reed-chair, cooper and broom shops. The attack upon the contract-labor system in the prisons by the labor unions centered around shirt manufacturing, but shirts were not manufactured at Joliet. 2 I t is clear, therefore, that the manufacturer w h o employed prisoners under the contract system received a bonus at the expense of the taxp a y e r s in the form of reduced overhead costs on the one hand, and low labor costs on the other.

I t is clear from the evidence also that this

lower cost affects the relative advantage of the contract and noncontract manufacturer.

N o r is there a n y evidence that the consumer benefits

f r o m these lower costs incurred b y the prison contractor. cussion raises an interesting question.

T h i s dis-

H a s the state a moral right to

tax competing m a n u f a c t u r e r s in an industry in which it is permitting some producers to receive state support?

It is doubtful policy for the

state to underwrite part of the overhead costs of some manufacturers, thus giving them a competitive advantage in the market, and at the 1 B u r d e t t e G. Lewis, " P r i s o n L a b o r and State U s e , " The Quarterly, V o l . 3, N o . 2 (April 1, 1925), p. 12. Issued b y the N e w Jersey State D e p a r t m e n t o f Institutions a n d Agencies, T r e n t o n , N . J. 2

Bruce, H a m o , Burgess, L a n d e s c o , op. cit., p. 158.

PRISON LABOR AND INDUSTRY

373

same time to tax the other competing units in the industry which do not receive any state aid in the form of free rental, heat, power, electric light, and supervised labor force. It seems obvious that any prison-labor system that raises such a question is not desirable. The state is placed in the position of deliberately aiding some favored manufacturers at the cost of the taxpayers and to the disadvantage of other manufacturers in the same industry who also are taxpayers. There is, finally, the much-discussed question of competition with free labor, a phase of the question just raised. If it is unfair for the state to give certain manufacturers a competitive advantage as against others, is it fair for the state to supply forced labor to some manufacturers at a lower wage level than is available to outside employers? Obviously not. The state has no more moral right to compel free labor to compete with forced labor than it has to favor some manufacturers at the expense of others. For all these reasons the fight on the contract system, ended with the passage of the Hawes-Cooper Act and its validation by the Supreme Court, was justified on administrative, moral, and economic grounds.

3. The Piece-Price

System

A variation of the contract-labor system which has had much vogue in the United States is the one known as the piece-price system. This system is but an attempt to circumvent restrictions of the contract system, and has most of the disadvantages of that system. The pieceprice system means that the contractor supplies the raw materials and purchases the product from the state at a given price per piece. In practice it has developed most of the evils of the contract system. It permits the same type of pressure upon prison officials, it leads to collusion and corruption, it gives a manufacturer the benefit of no overhead or a very low overhead in the form of a low price for the product which he purchases from the state. Sutherland, summarizing the discussion of this labor system, said: " B u t the piece-price system was merely a subterfuge—really the contract system under a different name and in a somewhat preferable f o r m . " 1 It has sometimes been argued that elimination of the contract system would destroy the prisoner's opportunity to earn a wage. T o v e r i f y this statement an analysis of wages paid in contract and noncontract prison labor was made. It should be noted that 1 9 prisons and 1 r reformatories 'Sutherland, op. cit., p. 432.

374

CRIME

AND

THE

COMMUNITY

paid no wages at all. Of the remaining institutions, 39 prisons and 8 reformatories provided for payment on noncontract work, while 20 prisons and 5 reformatories paid for contract labor. T h e following table shows the total number of men who received wages on contract and noncontract labor, grouped according to average wage payments per day, in all prisons and reformatories in 1928. C O N T R A C T AND N O N C O N T R A C T E M P L O Y M E N T AND W A G E S IN M E N ' S PRISONS AND REFORMATORIES I N THE U N I T E D STATES IN 192 8 1 Contract Number of Men

Labor

Per Cent of Total

Noncontract Average Wages Per Day (in Cents)

Number of Men

Labor

Per Cent of Total

Average Wages Per Day (in Cents) Oli

231

2

02

I

03

3654 559

12

155

2

02

391 388

3

04

165

I

3

06

16

219

2

07

4833 2972

03 04

10

06

189

2

08

20

O

836

7

09

07

916

09

1438

12

211

5 i

IO

110

S i

10

3

603

352

3

13

218

i

13

4

15

3

16

897

7

14

1263

3139

25

15

858

363

3

21

230

3*S

3

23

II

I

306

17

I

18

291

2

25

939

3

20

3io

3

1047

7

210

3 i

22

835

3

104

0

23

415

27 30 40

5

50

2440

8

24

608 380

3

54

60

0

404

3

65

640

2

870

7

75

806

3

328

25 30 31 32

I

33

4335

14

40

"39

4 0

50

149

313

I

100

75

T h e table above is summarized in the table on page 375, which shows that above the very-small-wage group there is no significant difference in wage payments to prisoners between a contract and a noncontract labor system. The argument that the wages of prisoners depend upon contract labor is not substantiated, therefore, if 1928 may be taken as a typical year. 1 C o m p u t e d f r o m d a t a in Handbook

of American

Prisons

and Reformatories,

IQIQ.

PRISON

LABOR

AND

375

INDUSTRY

C O N T R A C T AND N O N C O N T R A C T E M P L O Y M E N T AND W A G E S IN M E N ' S PRISONS AND REFORMATORIES IN T H E U N I T E D S T A T E S IN Contract

Labor

Number of Men Per Cent of Total 240g 4371 751° 8198

4"3

20

36 6l 67 33

Daily Wage Payment Less than Less than Less than Less than 25 cents

10 15 20 25 or

cents cents cents cents more

1928

Noncontract

Labor

Number of Men Per Cent of Total 14,986

17,643 19,943 10,210

44 SO 59 66

34

The lease, contract, and piece-price systems of prison labor involve private use of a public institution for private gain. No one of these systems seems to fit the peculiar needs of our penal system or the political and social ideals of a democratic government. We must seek some other use of labor in our prisons than those which lead to private profit through public favor and public support. As substitutes for the types of labor just described systems of labor directly under state control have developed. In fact, at present by far the greater part of labor in prisons is done under these systems of public control and management; whereas the contract and piece-price systems represented 40.2 per cent of the total value of the product of prison labor in 1923, the industries under direct public control represented 59.8 per cent. This percentage is probably greater at present because contract labor has been yielding to other labor systems in prisons during recent years. 1 The systems of labor under public control are generally known under the names of public account, public works, and state use.

4. The Public-Account System Public account is a system of labor in which the industry is managed by the prison authorities, under initial financing by the state, for the purpose of selling the product in the open market. Any profit which accrues from such a system is returned to the state treasury. The most successful example of this type of industrial organization is that developed by the state prison at Stillwater, Minnesota. During 1930 this prison reported a net profit of over $25,000. Other states have raised the question of the feasibility of copying this system in their own prisons. 1 T h e rapid decline of contract labor is noted in the Prison Industries Reorganization A d ministration s u r v e y s ; f o r example, of Maryland, p. 6 ; of Tennessee, p. 1 4 ; cf Kentucky, Ch. I I , p. 1 ; of Vermont, p. g.

3 76

CRIME AND THE COMMUNITY

However, there are certain fundamental questions involved in this type of industry which, even if it could be duplicated in other states, might make it undesirable. To begin with, the special conditions in Minnesota which make the industry possible are not easily duplicated in other states. Minnesota is an agricultural state in which there are no significant competing industries manufacturing binder twine or farm machinery (the industries developed by the prison). For obvious reasons the farmers have supported this local prison industry. Competition with these industries comes from outside the state. These conditions, together with legislative support, go far to explain the success of the public-account system in the Minnesota state prison. But it is difficult to find like conditions in other states. Almost any industry which might be developed meets with resistance from local manufacturers and local labor. Nor is the home market ordinarily sufficient to absorb the greater part of prison products. Most of the articles produced under the contract system, as we have already seen, are sold outside the state in which they are manufactured, a circumstance that accounts for most of the support received by the Hawes-Cooper bill. But even if the conditions especially favorable to the public-account system could be reproduced in other states, would it be desirable to stimulate its development? The answer seems to be clearly in the negative. The public-account system is essentially a system of state industry, underwritten and managed by the state in direct competition with private industry. It does not seem desirable or consistent with our economic institutions to develop a state industry based on forced labor and low wages and to place it in competition with private industry and free labor. If the state is to go into industrial production and compete with free industry in the open market, it ought to do so on equal terms. An equally serious objection to the public-account system is that a successful industry of this type tends to drive similar industry out of the local market. That is, the prisoner upon release, if he has become adjusted to an industry, has to go outside the state to find employment at the trade he learned in prison. In other words, the very success of the prison industry tends to destroy its adjustment value for the prisoner upon release. Another serious objection lies in the fact that large-scale development of a single industry tends to force most of the prisoners into the same trade and thus diminishes the possibility of training or developing any special aptitudes a man may have. It makes a mockery of any

PRISON LABOR AND INDUSTRY

377

attempt at vocational education. It seems clear, therefore, that it is not desirable to develop a highly specialized large-scale industry in the prison even under conditions favorable to its development. Since such conditions are found in only a few places, it is more than doubtful whether this type of industrial development could be successfully achieved, and even if it could be, it seems clear that it would be against public policy.

5. The Objectives of Prison Industry In addition to the system of public account there are the systems of public works and of state use. The first involves the use of prisoners on public enterprises such as the building of state and county roads; the second, manufacture by prisoners of goods exclusively for use and sale to other state institutions. These two systems of labor seem adaptable to the rehabilitation programs of penal organizations and least burdensome to the taxpayer and the prison. The employment of prisoners upon "public works" and for "state u s e " may be discussed in connection with a general program of penal reorganization. The position here taken on prison labor must be viewed in the light of our experience with prison industry and labor during the last hundred years. That experience indicates very clearly that prison industry has been a failure financially, regardless of the type of labor system tried. In 1928 only 2 out of xi straight-contract prisons, 2 out of 9 prisons that used both contract and noncontract labor, and 4 out of 39 prisons that had noncontract labor exclusively showed any profit. Thus the great majority of the prisons of the country have never been selfsupporting, regardless of the type of labor system employed. The lease system provides the only possible exception to this general statement; but it has so many shortcomings that it is neither desirable nor feasible to revive it. The reason for the great cost and general loss of time that the prison involves in nearly all the states lies, in part at least, in the attempt to develop a prison labor system within high walls which will produce enough to pay for the maintenance of the institution. B y and large, as we have seen, this attempt has failed. The prison system of factory administration does not ordinarily have behind it the investment, skilled management, space, marketing facilities, adaptability to changing needs, or suitable labor which successful administration outside the prison needs and secures.

CRIME AND THE COMMUNITY

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Even outside, where all these factors are more easily available and where industry can be managed without the controlling influence of political manipulation, there are a considerable number of failures. So it is not surprising, given the conditions implicit in prison-factory administration, that the proportion of loss should be high. It seems most doubtful from every point of view whether it is desirable, even under the best of conditions, to attempt to develop one or two standard industries within a prison for the purpose of ultimately exchanging the income from these industries for the necessities of maintenance. To try to conduct a prison like a factory is to standardize prison labor and sacrifice possibilities of developing skill and aptitude among the prisoners for the sake of a money profit. It would be better to attempt to treat the prison as a community and plan the labor and industry within the prison with a view to self-sufficiency. The question of prison labor is ultimately related to the classification of the prison population, but so far no attempt has been made to recognize their relation in practice. The distribution of labor in prison is generally determined by the deputy warden, who is frequently the disciplinary officer. Labor assignments are made, as a rule, with a view to discipline. This condition is inevitable, of course, in any prison where the disciplinary problem is uppermost in the minds of prison officials; and such is the case in most prisons of the congregate type, where classification, except for administrative purposes, is at a minimum. A report on 1 5 1 5 inmates in New York showed "no evidence, except in rare instances, that men are assigned because they can learn anything, or that previous occupation enters into the question." 1 This situation is typical of the prisons of the country. The problem, therefore, is one of classification into groups before assignment, and then assignment to labor within these groups with an eye to the possible use of industrial experience after release. Any rational prison labor system must be based first upon an acceptable system of classification of the prison population into types. That done, the administrative officials concerned with each class must deal with the problem of assignment of work according to the capacities of the men and their prospects for employment after release. The present inadequate system is adapted to the type of institution which the deputy warden must administer; and if he sets the men to work "purely from the angle of discipline or expediency," he is hardly to be blamed for that. Most deputies would welcome the relief from labor assignment if other pro1

Report of the New Y o r k Prison Survey Committee, p. 162.

PRISON

LABOR

AND

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379

vision could be made without endangering the disciplinary rhythm of the institution itself. The prison as an institution lacks most of the features which make success in private industry possible. The prison is not conducive to proper industrial organization except under the most unusual conditions, and then only at the expense of other elements which, from the social point of view, may be considered too important to sacrifice for the financial gain achieved. Instead of attempting the difficult, undesirable, and perhaps impossible task of making successful business institutions out of our prisons, we ought to aim at making them self-sufficient economic units. Instead of exchanging the products of one or two largescale industries for the essentials of prison maintenance, the prison ought to seek to become, so far as possible, a self-sustaining unit. The task of adequate distribution of the prison population for purposes of work and training is a baffling one. In spite of its small population, the prison has within it representatives of a great variety of interests, skills, aptitudes, and possibilities. An ideal prison labor system would fit each prisoner into his place with the greatest benefit both to him and to the prison. It would be flexible and broad enough to utilize all sorts of capacities, and would within its own organization have sufficient knowledge and wisdom to discover and develop latent capacities and so make later adjustment easier. No such ideally organized and staffed prison can be expected. But some rough approximation to the ends sought for ought to be aimed at if later adjustment to the world is to be secured. Something of the problem is indicated by the following description of 5300 prisoners in New York State: B e f o r e the representatives of the committee there were 5 , 3 0 0 men ranging in ages f r o m 1 5 to 78, ranging in education f r o m no schooling to postgraduate college w o r k , ranging in intelligence f r o m zero to a maximum comparable to that in the outside world, ranging in desire to m a k e good from nothing to 1 0 0 per cent, ranging in outside vocational experience from common laborer to college professor, ranging in inside vocational assignments from floor cleaner to the task of imparting knowledge in schoolrooms. In d a t a shown later, practically the whole range of human vocational a c t i v i t y is represented by the occupational record of those committed.

A very wide

range of such activity is shown in the prison assignments. 1

With the varied human material which it includes, the prison must be considered a community competent to employ all the different capacities available. 1

Report of the New Y o r k Prison Survey Committee, p. 163.

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6. Classification and Labor N o adequate analysis of the occupational equipment of our prison population is available. It is generally known, however, that a large percentage of the prisoners in state and Federal institutions would fall into the unskilled or semiskilled class. This general statement has to be partially modified for those prisons which draw their inmates chiefly from industrial rather than rural communities. But even in the most industrialized states a very large proportion of the prisoners seem to come from the unskilled and semiskilled groups. Some information on this subject is provided by the occupational analysis of 3814 men in New Y o r k State in 1920. T h i s analysis showed that unskilled laborers and agricultural occupations accounted for 34 per cent of the total. 1 T h e type of prison industry might be decided in terms of the skill of the persons committed and their prospective industrial careers after release. If a large proportion of the inmates are unskilled or semiskilled and if their future industrial occupations are likely to be unskilled, then the prison might well seek an industrial development which would suit the ability of its supply. It might do this with the understanding that it is attempting to develop a self-sufficient institution. That is something very different from a profit-making one. It might seek so to distribute its population in industrial activities within the general institutional structure as to utilize and, if possible, develop all the skills available. B y relating the occupational distribution of the prison population to its classification with a view to housing it in maximum, medium, and minimum security buildings, one could develop different types of employment in different types of institutions. This is especially significant in view of the fact that the lesser security building would hold largely men sentenced to short terms, and would therefore not be available for long-time industrial or vocational training. Broadly speaking, the prison population may be divided for industrial purposes into three separate groups: 1. Maintenance and upkeep; 2. Farming, road work, reforestation, and drainage; 3. Industrial establishments within prisons.

N o standard plan for the organization of prison labor can be offered. T h e differences in size and character of penal institutions, the different climates and the different industries of the regions in which they are 1See

table on page 370 a b o v e .

PRISON LABOR AND INDUSTRY

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located, make recommendations on this subject possible only in general terms. We may emphasize the broader objectives. Local conditions must determine local policy. It ought to be clear, however, that no prison-labor system can or ought to be built on the assumption that the prison is to be a financial asset to the state. The prison must be maintained at any rate. The New York Crime Commission said on this point: "Attempts at money making in prison industries should not destroy the benefit that society obtains upon the release from prison of a person educated to capacity and desire, and thus better fitted for adjustment in a free environment." A prison ought to be maintained with the greatest economy in money, but with the greatest good to the inmates and the state, and financial returns from the labor of prisoners are no adequate test of the latter objective. The prison ought to be self-supporting on condition that it does not sacrifice the broader end of the prison sentence. All systems developed within a prison, of whatever character, ought to be planned with an eye to the prisoner's ultimate return to the community. "Employment," stated the Prison Industries Reorganization Administration in 1936, " t o be of greatest benefit to the inmates of penal institutions, should be of such a nature as to fit them for coping with the ordinary conditions of civil life upon release." 1 The prisoner's ultimate release as a good citizen is, and must be, the great end and aim. With this end in view we may make a short analysis of the types of prison labor that lend themselves to natural development within the prison community. Approximately 30 per cent of all inmates are employed in maintenance and upkeep. This work should have skilled outside instruction and supervision. The point to emphasize in this connection is that the labor ought, as far as possible, to be organized with a view to its possible future uses to the men upon release. The plumber and electrician, the stationary engineer, the painter and carpenter, ought to receive from prison experience and labor added knowledge and skill for future use. Likewise with the kitchen staff and the dining-room staff. In connection with such maintenance work an adequate prison organization would attempt to utilize either correspondence courses or a trained dietitian, with lectures and classes, so as to make the work contribute toward future occupation after release. Nor is this an impossibility. When one looks over the great variety of courses given in San Quentin Prison it is obvious that some of these or similar courses could be fitted in 1

The Prison Labor Problem in Maryland, p. 8.

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with the actual maintenance work of the prisoner for his increased knowledge and understanding and still more for his development as a human being.

7. Farm Labor In view of the discussion in Chapter X I V of the distribution of the prison population into maximum, medium, and minimum security buildings, it is clear that a considerable proportion of the work could be done outside prison walls. Insistence upon keeping most of the men within the walls has complicated the labor problem. T h e close space and the high cost of maintenance have been conducive to high-speed industrial establishments comparable with those of outside industry. But there is every reason to argue for external employment for all trustworthy prisoners. From the point of view of training, the average sentence of priso n e r s — especially of those that can be housed outside the w a l l s — i s probably too short for any elaborate vocational education. A large proportion of the men are unskilled and will return to unskilled tasks. T h e habit of regular work is probably as significant in their prison experience as any other that the prison might inculcate. Work on a farm for those who came from the farm and will return to it is clearly desirable. T h e State Board of Administration of Alabama said of farm w o r k : W e feel that this is an advantage to the prisoner because a large number of them are farmers with very little knowledge of farming and their experience on an up-to-date farm will help them in their future life. 1

In states where a large proportion of the prison population is drawn from agricultural regions, this seems an obvious and desirable mode of labor. If, in addition, all agricultural work can be accompanied by training in agriculture, the use of visual methods in the teaching of plant and cattle breeding, and lectures upon soil, crops, and animal culture, and if the prison can draw upon the experience of the State agricultural extension service, many of the problems of seasonal employment in prison farms can be overcome. T h e work may be so arranged, and the day's program so organized, as to lessen idleness even in those sections where winter seasons reduce farm operations for some months of the year to a minimum. Even here unemployment could be reduced by a diversified 1Quadrennial

Report of A l a b a m a State B o a r d of Administration. 1926-1930, p. 88.

PRISON LABOR A N D I N D U S T R Y

383

agricultural program, the keeping of cattle and poultry, work on land clearing, renovation of farm machinery, and upkeep and maintenance of f a r m buildings, together with a well-planned course in agriculture. T h e problem of idleness could be reduced further by the development of small food-canning industries. An example of this is given in the following excerpt from a historical sketch of the Michigan State Prison: In 1909, on the recommendation of Governor Warner, farm land had been purchased, to be worked by prison labor, and the products of these farms exceeded the demands of the tables in the prison. Mr. Simpson started a canning factory to use the surplus stock, and it remains in successful operation to-day, canning a great variety of farm products.1 It may be urged here that from the point of view of rehabilitation, especially of a prisoner from an industrial community, it is probably desirable to provide him with a complete change in environment and interests. N e w scenes and activities m a y in time help to form new habits and be the best preparation for release. T h u s many prisons send men about to be released to the farms with a view to fitting them for discharge. Such a system, well planned and organized, might take in the very large proportion of the men classed as minimum escape risks. In turn they would contribute to the production of the food supply of the other institutions. T h e New Y o r k Prison Survey Committee said: The prisons of the State last year used approximately $300,000 worth of food materials which might have been raised on prison farms if the prisons had the land, the labor, and the motive. In fact, the market for prison-grown farm products is as enormous and startling in its totals as has been shown possible in the market for prison-made manufactured articles. The charitable institutions of the State alone could use $530,000 of butter, cheese, eggs, milk, vegetables, etc. The State hospitals offer a market of over $500,000 for farm products.2 F o r the prisoner from an industrial community the influence of such an environment would probably be as useful and desirable as any other. It ought to be emphasized, of course, that all such experimentation depends for success on the honesty, efficiency, and competence of the supervising personnel. F a r m work could be developed if sufficient time, thought, and interest were taken in it. 1

Harry H. Jackson, The Michigan State Prison, Jackson, Mich., 1928, p. 55. Report of the New York Prison Survey Committee, p. 91. The Prison Industries Reorganization Administration surveys give further evidence of the potential state-use farm market; for example, Maryland, pp. 8 - 1 2 ; Oklahoma, p. 1 7 ; Utah, p. 9. 2

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C R I M E A N D THE C O M M U N I T Y

8. Road Building and

Reforestation

W h a t has been said about farming applies with even greater force to road building and reforestation. For road building simple movable camps can safely be constructed. T h e amount of work that could be developed is almost unlimited. No great expenditure in equipment or machinery is necessary. Roads which are off the main highways—secondary roads which are often overlooked or neglected in any general road system—could be improved and extended. Here the experience of one State using road work as part of its regular prison labor system may be cited. T h e State of Alabama reported: In addition to grading and surfacing, this board has the machinery and equipment for laying hard or concrete surface roads and it has also been proven that this can be done in a strictly first-class manner. U p to this time there has been built approximately 600 miles of graded road and 29 miles of hardsurface roads. Our net profit, after charging off all depreciation on buildings, machinery, equipment and supplies used, shows $12,179.01. During this period [June 1, 1927, to September 30, 1930] we have worked a daily average of 1480 convicts and have made a monthly per capita profit of $6.76. 1

In Georgia, in 1928, 69 per cent of all misdemeanants were doing road work under county management, and the county road camps had 86 per cent of all felony prisoners. In July, 1931, 10 per cent of all prisoners in Federal institutions were assigned to road work. 2 This type of labor usually brings results: M a n y stretches of fine roads have been built by prisoners who have proved themselves just as efficient as other workers. Cooperation between the State Highway Department and the State Prison Department can open up an excellent avenue of work for prisoners who are willing to keep their faith with the authorities. There are many instances on record where prisoners have held positions of responsibility in connection with road building activities. 3

This road work ought to be co-ordinated with a regular educational program. The maintenance of a properly staffed library, and provision of entertainment in the form of a radio, an occasional educational movie, systematic study through correspondence courses, and regular visits of the educational director would give such work an educational objective. 1

Quadrennial R e p o r t of the A l a b a m a State B o a r d of Administration, 1926-1930, p. 33. N . Robinson, Should Prisoners Work? p. 271. Philadelphia, 1931.

2Louis

3 E . Stagg Whitin, " L a b o r for the Benefit of the Prisoner," in Agenda of June, 1930, of N a t i o n a l Committee on Prisons a n d Prison L a b o r , p. 8.

PRISON LABOR AND I N D U S T R Y

385

Winter months could be occupied with preparation of road machinery for the next season and with similar undertakings. I f the camp were permanently located, a small farm might well be attached to it. This plan facilitates the classification of the prison population into different road camps with varying degrees of supervision. Experience has shown that great success with road camps is possible. It is only because we have insisted that the old bastile prison is essential for all prisoners that we have not developed more fully the possibilities of road work. Here again competition with outside labor is at a minimum. Here also the program is in terms of state use, to which most manufacturing and labor groups have given their formal support. What is true.of road work is true also of reforestation and drainage. These permit outside labor under sufficient supervision with a well-developed educational and recreation program as a feasible means of employing a large proportion of the prison population. T h e reforestation work developed by the Wisconsin State Prison since 1931 is a good example of what can be done.

9. The State-Use System I f nonindustrial labor is provided for those groups of prisoners who can be housed in minimum and medium security buildings, then the whole problem of prison industry is greatly simplified. Instead of providing manufacturing industries for all prisoners, they would have to be provided for less than half, possibly for less than one third. W e have already seen, in the discussion of classification, that even one third may prove too high an estimate of the number of men that have to be kept in maximum security buildings. T h e question of industrial labor thus becomes more simple. Even so, prison industry has its difficulties. In part, at least, these difficulties arise from inadequate financing. Complaints are heard almost everywhere that the machines are old, the equipment insufficient, the right of expenditure for raw materials unnecessarily encumbered, and the prison hampered at every turn in its attempt to find a market and secure competent personnel for direction and instruction. A few quotations from the reports of the New Y o r k Crime Commission will illustrate the situation. These quotations could be duplicated for nearly every prison in the country. Prison industry, however, is crippled by the lack of shop facilities and the lack of mechanical adjuncts used in production. The prison shops at Auburn,

386

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at Sing Sing and at Clinton Prisons, except the meagre number of new buildings, years ago outlived their usefulness and now are unsafe, unhealthful, antiquated, costly to maintain and dangerous to life. New shops are needed in all three prisons.1 The first thing . . . to do is to equip the institutions with suitable buildings and modern machinery and to have them supervised by men who are capable of superintending the manufacture of the goods. Another important phase which . . . is lacking, is a staff of sales representatives . . . to visit the various institutions, departments and municipalities of the state to acquaint the purchasing authorities with the goods that are manufactured in the prisons and to learn what other goods . . . might be added to the list . . .2 B u t these difficulties are much less serious if the prison does not attempt to organize an elaborate and large-scale industrial establishment for which it has neither the resources nor the competence.

The

Commissioner of Correction of N e w Jersey took this a t t i t u d e : If you don't go into this industrial problem wholesale; if you don't try to make your prison compete entirely with one industry; if you don't try to make it compete with only one group of organized labor, it seems to me you avoid a great many difficulties. I believe in diversified labor because it fits the problem better, it fits the men better, and fits the working conditions on the outside better. The keystone of our work has been classification or individualization of our men, the separation of these men into groups which are homogeneous as to capabilities, interests and outlook, and then the development of a co-operative and an understanding spirit on the part of both organized labor and the organized employers. T h e system of labor which seems best adapted to state prison industries, and the least objectionable as well, is known as " s t a t e u s e . " Under this system convict-made goods are withdrawn entirely from the open market

and sold only

agencies within the state.

to tax-supported

institutions

Proponents of other systems of

and

prison

labor have argued that state use is equally competitive with outside labor and capital.

W e need not repeat the argument here.

State

use has great merit in that it does not participate in price-making in the open market.

It leaves that completely and severely alone.

does not involve higgling for either labor or capital. be stated in broader terms.

It

T h e case m a y

Goods produced for sale in the open

* N e w Y o r k State Crime Commission, Report to the Commission of the Sub-Commission on Penal Institutions, 1927, p. g (p. 239 of full 1927 report). 2 N e w York State Crime Commission, Special Report on Penal Institutions, 1930, p. 9.

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INDUSTRY

m a r k e t tend t o affect the prices of all similar a n d related g o o d s in the entire m a r k e t .

G o o d s p r o d u c e d b y the s t a t e f o r its own institu-

tional use d o not enter the m a r k e t .

T h e first case involves

direct

c o m p e t i t i o n w i t h free labor and c a p i t a l ; the second is a closed m o n o p o l y s e r v i n g its o w n ends w i t h o u t entering the m a r k e t .

State use reduces

the a r e a of the m a r k e t for a p a r t i c u l a r p r o d u c t , b u t does not necess a r i l y affect its basic price, a n d it m e e t s w i t h less opposition. T h i s s y s t e m h a s the f u r t h e r a d v a n t a g e t h a t it e n j o y s the co-operation of outside l a b o r .

T h u s it is reported f r o m N e w J e r s e y that

Organized labor wrote the 5-year course of study used in our printing school and industry in our various institutions. T h e y give apprenticeship credit year by year to those in the industry who successfully complete their year's work in their course of study, and finally a journeyman's card to those who complete all of the 5-year course. Recently we have had men leave the prison and go into the profession at wages as high as $55 per week. 1 T h e t y p e of i n d u s t r y a n d its size m u s t b e d e t e r m i n e d b y conditions w i t h i n the prison and the c o m m u n i t y . C e r t a i n industries are o b v i o u s l y s u i t a b l e for institutional u s e :

the m a k i n g of clothing, shoes, f u r n i t u r e ,

b e d d i n g , a n d utensils, w h i c h other s t a t e institutions n e e d ; the m a k i n g of r o a d a n d a u t o m o b i l e s i g n s ; state p r i n t i n g ; small foundries.

and the operation of

T h e M a s s a c h u s e t t s prisons r e p o r t e d :

The printing industry is proving to be, not only a good industry for the state, but very beneficial to the inmates, as many of them having learned the printing business here, have gone out and obtained and held good jobs in this line of work on the outside. 2 I n no case need the industries b e large. a r e as i m p o r t a n t as the actual o u t p u t .

T r a i n i n g and p r e p a r a t i o n

T h e prison must a t t e m p t t o

d i v e r s i f y its industries so as to b e c o m e self-sufficient, help other state institutions to do likewise, and d e v e l o p all possible skills and interests t h a t men m a y h a v e a n d that m a y b e of use t o them upon release. T h e k e y to the solution of the p r o b l e m s w h i c h arise under state use lies in the d e v e l o p m e n t of the a v a i l a b l e state institution m a r k e t . 3

So

f a r as the state use s y s t e m h a s failed to p r o v i d e a d e q u a t e labor f o r t h e i n m a t e s of penal institutions, it h a s been o w i n g to the neglect of Lewis, op. cit., p. 12. Commissioner of Correction of Massachusetts, Annual Report for 1929, p. 19. 3 Estimates of the available market may be seen in the surveys of the Prison Industries Reorganization Administration; for example, of Maryland, pp. S - 1 0 ; of Texas, Appendices A a n d B ; oj Tennessee, pp. 1 2 - 2 6 ; of West Virginia, pp. 1 5 - 1 7 . 1

2

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CRIME AND THE COMMUNITY

the prison authorities to use their influence with other state institutions, or to failure to seek the necessary legislation for obtaining the available market. For this failure perhaps no criticism is too severe. Prison officials are directly responsible for shaping the destinies of the men in prison. They, better than others, know the deteriorating consequences of idleness. Prisons filled with idle men are hard to discipline ; the men become bitter, lazy and restless ; the prison which provides no work is most subject to riots and other disturbances. In view of these consequences, prison officials have been unjustifiably negligent in failing to develop the state institution market. In many states they have failed to develop this market although the legislature has given them a legal right to do so. The failure may not always be their fault. They may lack sufficient funds to carry on an advertising or selling campaign among institutions, or they may not have worked out systems of standardizing goods used in different institutions. While all these are extenuating circumstances, they do not alter the responsibility of the officials. It is for them to see that the funds, the salesmen, and the standardization are made available. That is in some ways their major problem. Unless they succeed in finding work, they cannot expect to meet their responsibility either to the prisoners or to the community. One of the problems in providing a market for prison-made goods under the state-use system is to prevent evasion of the law by municipalities. It is reported from New York that "it seems that various bodies charged under the law with the purchase of these goods in one way or another evade that law." Massachusetts has paid particular attention to this problem with good results. Massachusetts law makes it illegal for local auditors and treasurers to pass on bills for the purchase of goods by state and municipal institutions without a release from the State Department of Correction. Such a law, if well enforced, would do much to solve the problem of a market for prison-made goods. It has been estimated that the total market in municipal and state institutions is much larger than that which can possibly be supplied by the state prisons. The 1927 report of the Massachusetts Commissioner of Correction said : T o every city and town, as well as to institutions of all kinds, which have failed to purchase during the past year, a communication has been sent calling attention to the provisions of Chapter 1 2 7 of the General L a w s , sections 5 3 - 6 0 , inclusive.

In addition to this the auditors and treasurers have been notified

that they can not pass bills for payment without a release from this department.

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INDUSTRY

At the same time this department stands ready in all ways to co-operate with city and state departments in the proper and common sense administration of the law. . . . Every effort has been made during the past year to bring smaller towns into line in the matter of purchasing, and the result has been most noticeable by a great increase in the number of new buyers, as well as a corresponding increase in business. As an illustration, 44 new towns purchased furniture in 1927, 50 purchased metal goods, 41 purchased brushes and 67 purchased flags. Many cities and towns have been prejudiced against prison-made goods, feeling that they could not be manufactured properly by inexperienced help, but this has been proved to the contrary and to the satisfaction of those who have had that feeling, and the department has and is receiving orders regularly from these very municipalities. 1 S u c h a s y s t e m , if p r o p e r l y u n d e r t a k e n a n d c a r r i e d o u t w i t h

the

consistent s u p p o r t of the state legislature, a c e n t r a l i z e d and co-ordinated industrial p l a n n i n g s y s t e m f o r the prisons, a p r o p e r sales force, a n d a p u r c h a s i n g l a w of the t y p e n o w e n f o r c e d in M a s s a c h u s e t t s ,

would

contribute to solving the b a s i c p r o b l e m of prison l a b o r in our p e n a l institutions.

I t w o u l d a c h i e v e that end w i t h o u t d e v e l o p i n g the un-

desirable f e a t u r e s w h i c h a r e b y - p r o d u c t s of other

systems.

10. Wages F i n a l l y , the p r o b l e m of c o m p e n s a t i o n for p r i s o n e r s m u s t be considered.

F o r m e r G o v e r n o r A l f r e d E . Smith once said on this s u b j e c t :

It has been my experience not only since I have been Governor, but all the years I was in the Legislature, that the real sufferers as a result of a prison sentence are the dependent members of the prisoner's family. I do not think it is a question that admits of any discussion. The prisoner is taken over by the State, supported, fed, and clothed, and his children, if he has any, and unfortunately a great many of them have, and his wife, are thrown upon the mercy of friends and relatives or else become private charges. T h e most pitiable cases one can listen to are constantly brought to the attention of the governor, actual want and actual starvation, as the result of the bread-winner being locked up in the State prison. In some instances it is unfair to the State to hold a man in prison when the children are in want; it is unfair to society to let them out. In a great many instances the man is where he belongs, but that does not take from the State the obligation to do something for the man's wife and children while he is in prison. Some method should be found. 2 1

Commissioner of Correction of Massachusetts, A n n u a l R e p o r t for 1927, p. 7.

' A l f r e d E . Smith, Progressive

Democracy,

pp. 208-209. N e w Y o r k , 1928.

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It should be remembered that wages either have not been paid at all in our prisons, or, if paid, have (with a very few exceptions) been of negligible significance as financial contributions to the men's dependents, or even for their own needs upon release. Such as they are, they have frequently been reduced and made still more negligible by systems of fining prisoners for violations of prison rules. There are cases on record in the state of New Y o r k in which prisoners who earned i]/2 cents a day were fined $5 at a time for some infraction of the prison rules. Without a detailed discussion of the wage problem, it is sufficient to say here that adequate wage payments, especially to prisoners with dependents, would be a great boon to the men and to the charitable institutions of the states. Payment of wages is dependent, however, upon a proper working out of the prison labor problem. If the state achieves an adequate solution of the labor problem, if the prisons become less of a drain upon the resources of the state, and if they contribute to cutting down the maintenance costs of other institutions by supplying them with farm and dairy products, then it will be less difficult than it is at present to obtain adequate compensation for the prisoners. Some payment ought to be made under any conditions. After all, the prison inmates cannot be blamed for the incompetence of state officials in working out the labor problems of the prison. But an adequate wage for the prisoners will have to wait upon solution of the prison labor problem.

11.

New

Program

As a result of the passage of the National Industrial Recovery Act and the coming into force of the Hawes-Cooper Act in 1934, the prison labor problem acquired an emergency character. Labor and industry attempted to use the N R A to drive prison-made goods off the public market. T h e states, however, were able to force a temporary compromise of the difficulty, and secured the organization of a Prison Labor Authority, composed of representatives of labor, industry, the state prisons, and the public, operating under a prison compact which was to serve the purpose that the codes served in industry. The complexities of the problem and the old conflicts persisted under the new guise, until finally the Federal government, in an attempt to bring the problem to some solution if possible, set up a special committee to review the entire field of controversy. The committee, composed of Judge Joseph N . Ulman as chairman, Frank Tannen-

PRISON

LABOR

AND

391

INDUSTRY

b a u m , a n d W . Jett L a u c k , rendered a report on N o v e m b e r 26, 1934.1 T h i s report b e c a m e the basis for the e s t a b l i s h m e n t

of

the

Prison

Industries R e o r g a n i z a t i o n A d m i n i s t r a t i o n b y P r e s i d e n t R o o s e v e l t on S e p t e m b e r 26, 1 9 3 5 , with a v i e w t o w a r d a t t e m p t i n g , w i t h f e d e r a l aid a n d co-operation, some solution of this p e r p l e x i n g p r o b l e m . T h e question is of such importance to the prison a n d to a possible w o r k i n g out of the f u t u r e of prison organization t h a t the b o d y of the report is reproduced here. REPORT AND RECOMMENDATIONS OF SPECIAL N . R . A . C O M M I T T E E , OCTOBER 1 2 , 1 9 3 4

The Committee's recommendations look to a definite solution of the prison labor problem. N o partial alleviation is practicable. The conflicts of opinion and interest between the contending groups are so sharp that no compromise of the issues at stake is feasible, and even if feasible would not be desirable. N o such compromise would endure beyond the day on which it was effected, and in a new guise the old issues would persist in burdening the conscience of the community. The specific issues that called this Committee into being were: A. The difficulties in the Cotton Garment Industry created by prison competition, and B. The complaints against the operations of the Prison Labor Compact. A . The Cotton

Garment

Industry

and Prison

Competition

T h e conflict of interests between the Cotton Garment Industry and the prisons is acrimonious and of long standing. For many years penal institutions have emphasized the production of cotton garments under a contract system and have marketed their products at prices which outside shops found difficult to meet. Prison labor competition made the maintenance of any standards in the industry outside progressively difficult, and forced the manufacturer into out-of-the-way places where child labor, night work, long hours, and poor pay became the rule. It has been impossible in the past for the industry to achieve stability, to increase its wages, or to improve its standards, because of the lower costs of prison manufacture. The prison contractor had the advantages of free rent, light, and heat, of low labor costs, and of a controlled labor force—there is ample evidence in the history of prison contracting that the disciplinary machinery of the institutions was often used to inflict physical punishment upon the prisoner who failed to complete his allotted task. The prison contractor supplied work for the prisoners and in one way or another added 1 National Recovery Administration. Report of the Committee on Competition of Products of Prison Labor as Directed by Executive Order No. 118-135 of October 13, 1934. A report of 21 pages, published as a mimeographed pamphlet. The section quoted herewith comprises pp. 13-21.

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emoluments to the agents of the State who were participants in the execution of the prison labor contract. The system served the contractor and the prison administration. It was, however, in many instances a bane and a curse in the lives of the prisoners, and the low-priced products kept wages down and the standard of living below a decent level for the workers outside. Against this system a ceaseless battle has been fought on the grounds that it perverted the prison to a factory for private profit, that it used the money of the tax payers and of the prison contractors' competitors to undermine and destroy their basis of income, that it led to political graft and malfeasance in office, and that it served no useful ends in the lives of the prisoners when released. This conflict has raged back and forth for well-nigh a century, with the prison labor contracting system gradually losing ground and being replaced by other systems of labor more or less pernicious. But in spite of its decline, the prison garment industry still made 22,000,000 shirts in 1932, was still operative in 2 2 states, and still represented the greatest single labor activity in the prisons of the country. The impact of the depression upon the Cotton Garment Industry made the effects of prison labor competition more keenly felt than ever, while the development of the National Recovery Administration not only brought the issue to a head but established machinery to deal with it on a national scale. Earlier attempts to resolve this problem were obstructed by the fact that prisons are state institutions, and that each state has a different policy. In some states the forces opposing prison competition achieved its abolition without supplying a satisfactory alternative for keeping prisoners at work. In others the efforts of labor, industry, and interested social organizations completely failed to make any headway against the combination of prison contractor and local petty politics. The struggle culminated finally in an attempt to secure congressional legislation. The Hawes-Cooper Act, passed in 1929, prevented the sale of prison-made goods in states that had legislation prohibiting the marketing of such goods from their own institutions. T h e law was to become effective in five years, thus giving the states an opportunity to reorganize their prison industries to meet the prospective limitations imposed by the law. The five years expired at about the same time that the National Recovery Administration came into being. In the meantime, most of the states had neglected to make the necessary adjustments to meet the restrictions upon their ability to market their prisonmade goods, with the result that their problems became more acute. The reasons why the states had not set about preparing to meet the prospective limitations in the Hawes-Cooper Act are inherent in the very fibre of the prison system itself, and need not be here discussed. The fact is that the states "just drifted," as was testified by one of the witnesses before the Committee. This lack of preparation on the one hand and the coming into existence of the National Recovery Administration on the other brought the issue before

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393

the Federal Government as an immediate and inescapable conflict. The Cotton Garment Industry seemed at last to have found the instrumentality to secure its long-sought objective. It sought by one means or another to put prohibitory provisions into the industrial and retail codes to prevent the marketing of prisonmade goods. It was going to achieve at one blow what fifty years of public agitation and striving had failed to secure. The prisons, unprepared, and now being threatened with a virtually complete shut-down of the open market for their prison industries, were faced with a very real crisis; a sudden and large increase of idleness, destruction of their capital investment, demoralization of their system of prison discipline. They were faced with the complete and immediate destruction of the traditional system of penal administration which they had learned to operate by custom and which by a slow process of attrition had become more or less satisfactory to themselves. They had neither the insight, the time, the money, the experience, perhaps not even the desire to contrive an alternative way of governing the prisons. Institutions, no less than individuals, surrender their traditional ways slowly and grudgingly. Faced with genuine danger, they appealed to the Federal administration for immediate relief. I t was to meet the danger inherent in the National Recovery Administration codes on the one hand and the failure of the state prisons to adapt their industries to the provisions of the Hawes-Cooper Act on the other that the Prison Labor Compact was developed. The Compact) in brief, provides that the prison authorities set up conditions of fair competition in their prisons so as to meet the standards imposed by the codes on outside industry. The compromise achieved was one that, for the moment, kept the penal institutions from shutting down their work shops and gave outside industry some measure of protection against the hitherto unrestricted and uncontrolled prices of prison competition. The working of the Prison Compact has since its adoption been subject to a great deal of criticism, especially on the part of the Cotton Garment Industry. And in this industry the conditions are such as to make the complaint very real and the necessity for relief urgent. The source of the grievances of the Cotton Garment Industry arise from the fact that i. The industry has unduly increased its outside plant and equipment. T h e new capital investment was mainly motivated by the prospect of the withdrawal of prison competition under the Hawes-Cooper Act. In addition, evidence indicates that there was some further plant increase in the Cotton Garment Industry because the prospective influence of the National Recovery Administration seemed to point to a complete shut-down of prison industries. T h a t there was some basis for this assumption is seen in the temporary exemptions granted by the National Recovery Administration for the training oí apprentices in the new plants being developed.

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2. The manufacturer of prison-made cotton garments was allowed a 1 0 per cent lower direct labor cost basis than outside industry. This amounts to from 2 per cent to 3 per cent of the wholesale price of the merchandise. 3. The prisons operating on the State Account System are allowed a price differential of 1 2 ) 4 cents per dozen, sufficient to provide a definite advantage in a sensitive market. 4. Finally, the prison-made garment has been granted a National Recovery Administration label which is not easily distinguishable from the ordinary label used in that industry by outside plants. The granting of the label by the National Recovery Administration may have been legal, it may in fact have been inevitable after the adoption of the Prison Compact, but it gives prison industry a kind of moral advantage it has never before enjoyed. Until the granting of the label, prison-made garments were always on the defensive, and their origin was frequently hidden by false labeling so as to deceive the consumer. A number of state laws were, in fact, passed to prevent this deception. This function now comes under the auspices of the National Recovery Administration, and the prison industry, as one warden expressed it, " h a s been recognized for the first time." The protest of the garment industry is both natural and logical. The label tends to undo the effect of a campaign that has raged in the press and the pulpit for well-nigh a century. It makes prison goods respectable. It gives them a market free from opposition and makes the consumer incapable of distinguishing between prison and non-prison made goods. There is no question that the label tends to deceive, and that the prison contractor has secured the help of the National Recovery Administration in carrying out this deception. T o argue that prison conditions have changed so as to destroy the basis of the onus is to raise questions on enforceability, questions of the rapidity with which special institutions change their characters; and in effect it shifts the basis of the argument. It is clear that the attitude of the Government, as expressed through Congressional action and through the reports of commissions, has been that it is undesirable social policy to promote profit-making industries in penal institutions. The action of the National Recovery Administration in granting the label tends in effect to promote and encourage profit-making industries in prisons. In the face of demand for increased wages, shorter hours, and improved standards for labor, competition with prison-made goods is made more difficult for the Cotton Garment Industry. The position of the Committee is that the making of garments is from every point of view undesirable as a system of labor in the prisons ] that it does not materially contribute to the ends of a penal sentence; that its effect upon the morale of the prison was in the past and in the future probably will continue to be unwholesome; that in view of the increase of outside plants and the changing standards enforced by the National Recovery Administration the continu-

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INDUSTRY

395

ance of prison competition is destructive of the Cotton Garment Industry and endangers the standards of life and labor for some 165,000 people; and that, a s the prison industry is insistent that it can survive only upon the favoring feature of a cost and price differential and upon the contributory deception involving the Federal Government through the National Recovery Administration label, it is better immediately and finally to remove prison-made garments from the open market. T h e Committee therefore proposes that the Federal Emergency Relief Administration temporarily purchase the garments made in the prisons. T h i s temporary period should not last more than two years and should be on a declining scale in periods of three months during that time. T h i s would give an opportunity to carry out the suggestions of the Committee in reorganizing the prison industries. It will also prevent the increase of the Federal relief rolls that must ensue if the competition of prison-made garments is allowed to continue to absorb the work that would otherwise go to increase the labor of people outside the prison. I t would immediately remove the source of contention of the Cotton Garment Industry that it cannot continue to meet the provisions of the codes of fair competition set up under the National Recovery Administration and increase the possibility of standardizing an industry that has been the most sweated and least influenced by the pressure for higher standards of life and labor for the workers engaged in it. It would also give the National R e c o v e r y Administration a real moral argument to push its insistence for higher standards and better enforcement in that industry. It would save the prisoners from idleness and the prisons from loss through a sudden destruction of an important part of their industrial system, and it would give time to plan and execute a different industrial system for the prisons looking toward the final abandonment of the cotton garment industry as one of the chief occupational activities in penal institutions. B . The Prison

Compact

T h e second immediate issue that brought this Committee into being concerns the operation of the Prison Labor Compact. On the whole the situation is not so pressing as in the Cotton Garment Industry, for the other industries under the Compact do not feel prison labor competition so keenly, and, excepting the Cordage and T w i n e Industry, where the problems are of a very special character, the prison industries are not so large nor is their pressure against outside industry so effective. There is, however, sufficient evidence before the Committee to show that the situation is serious enough to require remedial action, and that if such remedial action is delayed the problem will become more difficult and its ultimate solution less feasible. T h e Prison Compact is, as has already been indicated, a voluntary arrangement between the States to maintain within the prisons standards of cost allocation to sales price that will make prison industries comparable to outside

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C R I M E AND T H E

COMMUNITY

industries. General agreement upon costs is, however, always affected by traditional differentials in both costs and prices. Assuming the best possible enforcement, the prison should thus still have guaranteed to it a certain edge upon certain parts of the market because of these differentials. Enforcement of the Compact, in view of experience, would be difficult to carry out and dubious in effect. B u t even with the best possible enforcement, the fundamental issues are in the main not different from those in the case of the Cotton Garment Industry. T h e Compact still involves the N R A in securing and protecting a market for a type of industry that the sense of the American people as reflected by their representatives, at least, over a long period of time and under many different conditions, has attempted to outlaw on what are claimed to be broad grounds of social policy on the one hand and narrow grounds of economic policy on the other. T h e N R A and the Prison Labor Compact have inadvertently reversed this trend of policy upon this issue, have tended to prolong the existence of the condensed type of prison industry, have in return for compliance with certain demands as to working conditions and prices opened to it the prospects of a more secure market than before, and would, if no change were made, impose upon prisons continuance of the financial and profit consideration in the management of their industries, contrary to the expressed judgment of their critics. T h e r e is the further specific grievance that the Prison Labor Authority has acted to change both cost and price schedules without consultation with the Code Authorities affected. Denials and recriminations one way or another do not seriously change the picture. Some remedial and corrective measures are essential even for the temporary period in which the Prison Labor Authority is to be accepted as an agency in the field, to meet the real danger that the Prison Labor Authority may, by developing interests and setting up expectancies, contribute to the freezing of the present prison industrial system, contrary to the repeatedly expressed policy of the American people as exemplified in the action of Congress and numerous State Legislatures. T h e immediate remedial action suggested by the Committee is therefore to set a limit upon the expansion of the prison industries, by setting up quotas in the prisons to limit their production for the open market at a point no greater than the one existing when the Prison Compact was established ; and to provide that no changes in price or cost schedules be introduced in prison industries without mutual agreement between the Prison Labor Authority and the special Code Authority involved. If necessary, an impartial chairman might be set up whenever agreement is impossible.

The

Program

B u t the prison labor problem is more pervasive than the above discussion would indicate. T h e prison industrial system is an integral part of the very structure of the penal institution and must of necessity shape the lives of the

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INDUSTRY

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men and determine whether the effect of imprisonment is to achieve those ends that the community has a right to expect from the penal institution.

I f the

prison for one reason or another does not return to the community men strengthened in character, cleansed of poor habits, better able to make social adjustments, if it does not reconstruct their way of life and make them less likely to follow the path of criminal depredations, then the prison system has failed. If the men in prison do not come out better fitted to take their places in the community as citizens, then all the efforts of society, all of its expenditures, of its manifold plans and programs for the combating of crime break down at the point where the community has the greatest opportunity, the most time, and the best chance of achieving constructive ends with men who have failed in all other social relationships. For the prison is the final opportunity of the community to undo the evil already done, and to retrieve both its own failures and the failures of the individuals involved. I t is these considerations that have motivated the opposition to the essential perversion of the prison to a profit-making institution. T h e true function of the prison is neither to make profit for private contractors nor to make profit for the state. At its best the function of the penal institution is an educational one—education in the sense of re-creating a habit system adequate for social adjustment. T o permit the profit motive to interfere with this broader purpose is to negate the function of the police and the judicial agencies, committed to the prevention of crime. T h e fact that so large a part of the men sent to prison continue in their career as criminals is evidence that the penal system now fails almost completely of these ends. This is not the place for a general essay on criminological reform.

But it is the place to insist that no

such reform is possible without an adequate prison industrial system; that no industrial system which subordinates the functions of the prison to the making of profit can meet the purposes of society; and that the present situation in regard to prison industry must change. Surely no one will deny that prisoners ought to have work in prison. But it is no corollary to this statement to say that prison industries must be run for profit. In fact, the greater measure of the difficulties that have arisen is due to a willingness on the part of prison officials to shift to the shoulders of private contractors their burden of responsibility for contriving an adequate system. T h e only alternative to a profit-motivated prison industry is the development of the State Use System. T h a t has been recognized for a long time, and a number of states as well as the Federal Government have abandoned the production of goods for the open market and have confined by law the manufacture of prison goods to the needs of the state. T h e difficulties that have arisen here are due mainly to two factors: first, an inadequate l a w ; second, inadequately equipped and organized systems of prison industry. An adequate law requires that the public m a r k e t — i . e., the market made by all tax-supported institutions—shall be reserved for the prison industries. An adequate prison

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industrial system is one that is sufficiently diversified and equipped to be able to produce the great variety of things that the tax-supported institutions need, and that by its diversity provides a limitation upon an undue concentration in any one industry, and makes possible the kind of administrative and educational classification of the prison population needed to achieve the broader ends of the prison. An adequate law requires compulsory purchase by all taxsupported institutions of the things that can be produced in the prison ; in turn, the prison must have equipment and organization to meet the needs of the taxsupported institutions both as to quality and quantity. The states use laws have been opposed for political reasons. The development of the state prison systems has been neglected because of inefficiency, political considerations, and lack of funds. The prison problem does not bulk large in the minds of the mass of people, and it has been allowed to drift without much consideration. We propose to solve the specific issues that brought this Committee into existence by making it possible for the states to develop a satisfactory industrial system if the states will cooperate to the extent of passing a satisfactory states use law. The law of the State of Massachusetts might well be considered as a model for such purposes. If the states will so cooperate, then we propose that the Federal Government, in consideration of the elimination of the difficult national problems which the competition of prison industries has created, shall cooperate by providing the engineering staff to survey, and the funds to organize, a satisfactory prison labor system for each state. At no time has the occasion been more appropriate or the opportunity greater to do a constructive task in giving the American people the kind of penal system that a civilized community ought to have. We propose that the Public Works Administration set aside, subject to such modification, if any is found legally necessary, in the provisions of Section 206 of Title I I of the National Industrial Recovery Act, a fund of 850,000,000 to be applied to surveying and reorganizing the prison industries of the states of the country as they pass the requisite legislation. Working in cooperation with the Prison Compact Group, this fund would set up an engineering staff to go into the cooperating state and make a comprehensive survey of the market available in the tax-supported institutions of the state, counties, and municipalities. It would then survey the prison and plan the prison industries to meet those specific needs, with all the factors in the situation fully in view. The Public Works Administration would then, by contract with the prison, help set up and operate this system of prison industries for a period of five years and set it well on its feet before withdrawing. We make no suggestion as to the conditions that the Public Works Administration would itself make in providing the money. It already has a basis in law and experience to determine its conditions of cooperation with the states. Our insistence is that the requisites of an adequate law and a sufficient diversification be kept in view. We also insist that the new plan be operated

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under contract with the prison authorities and with their cooperation for a period of five years, which ought to be long enough to set the new model on a firm foundation in practice as well as in public opinion. T h e diversification is important because it would do two essential things. It would m a k e possible the reducing of pressure upon any one industry to a minimum. I t would make possible for the first time an adequately developed educational system in the prisons, and a genuine effort to make the prison experience something more than a resting period between one series of criminal depredations and another. With the help of the Public Works Administration a system of educational and occupational classifications could be worked out in each prison. T h e small shops could be adapted to their industrial as well as their educational utility, and we might get at last a system of penal administration that would become a constructive rather than a destructive influence in the lives of the men in prison and of society which has to determine how to provide for them. N o such penal system could be operated for long without raising the questions of whether the experience of imprisonment is essential in all of the cases in which it is now imposed, and whether society could not achieve its own purposes in many instances by decreasing the number of individuals sent to prison. It seems logical to expect that the operations of such a system of penal administration as is here outlined would lead to a strengthening of the very useful agencies of probation and parole, thus alleviating the problem of prison industries by reducing the number of men sent to prison. One of the legitimately proud boasts of the present administration is the abolition of child labor, which has so long been defended and maintained b y a series of specious moral arguments and political chicanery. It seems to this Committee that in the possible contribution to a final settlement of the prison labor problem and in the reconstruction of the penal system which must be one of the results of such a solution, another step of perhaps no lesser significance would have been taken. T h e community as a whole would acclaim such a solution of the prison problem, as it has acclaimed the abolition of child labor. T h e Committee wishes to make it as clear and as impressive as possible that only by the doing of the larger thing can the narrower issues that called it into being be solved.

Recommendations 1 . T h e Committee recommends that the National Industrial Recovery B o a r d use its good offices with the President to set up through the Public W o r k s Administration a fund of $50,000,000 for the purpose of helping the states to meet the conditions specified in this report, so as completely to replan and reorganize their prison industries, removing prison-made goods f r o m the open market and finally bringing to an end the prison labor controversy which has burdened America's industrial and political life for so long a time. 2. T h e Committee recommends that in the interim between the present and

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the time when the reorganization of the prison industries can be effected by the use of the fund suggested above, the National Industrial Recovery Board use its good offices through the President and the Federal Emergency Relief Administration to effect the purchase from the prisons of prison-made garments, or to utilize the labor now employed on prison-made garments to make such other garments as the Federal Emergency Relief Administration may deem preferable. The purchase of these garments by the Federal Emergency Relief Administration from the state prisons should be scheduled on a declining scale, and should cease at the end of two years. 3. In addition to the immediate adoption of the above program, the Committee further recommends that prison-made garments be barred in the public market by the withdrawal of the National Recovery Administration label now attached to them, or by its modification to read "prison made." The Committee suggests that a maximum of 15 days after the publication of this report be allowed to elapse before the above proposal for the taking over of prisonmade garments by the Federal Emergency Relief Administration be effected. 4. The Committee recommends that the Prison Labor Authority be continued, and that its offices be used as the agency in cooperation with which the above program is to be carried out, and that the loss in funds to the Prison Labor Authority which may result from the withdrawal of the label or its modification can be supplied from the funds set aside by the Public Works Administration. 5. The Committee recommends that an Executive Order empower the National Industrial Recovery Board to require an agreement between the Prison Labor Authority and the Code Authorities in the industries affected by prison-made products in every instance of change in price or costs of products sold by the prison industries. If such an agreement cannot be had by mutual consultation, an impartial chairman especially designated for that purpose should be named. 6. The Committee recommends that, by cooperation between the National Industrial Recovery Board, the Prison Labor Authority, and the Code Authorities affected, a quota system be established for all prison industries, limiting their production for the open market at a point no greater than that which existed at the time the Prison Compact came into existence. 7. The Committee recommends that if the above conditions be fully met then the remaining state, county, and city institutions now producing for the open market be brought under the Prison Compact. S p e a k i n g of the possibilities of this report's being carried out, M r . J a m e s V . B e n n e t t said in the Survey

of April, 1 9 3 5 :

The proposal that the states adopt adequate state-use laws and limit the sale of prison products on the open market in return for federal aid in setting up state-use industries and a broad program of vocational education and welfare

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work in prisons, has been generally accepted by the prison leaders of the country. T h e Ulman plan has its drawbacks of course, and may seem Utopian to practical men who do not believe Uncle Sam is a Santa Claus, who know that the battle against prison labor will not disappear as soon as the states stop selling in the open market and who realize the almost insurmountable obstacles to operating a number of small industries with the character of labor available in the prison in competition with large-scale specialized industries manned with skilful, intelligent, and ambitious free men. B u t the Ulman report does point a w a y out and does give the warden and the prisoner some hope. T h e reply of the Prison Labor Authority to the Ulman report, which was prepared by Thorsten Sellin, Col. J o h n J . Hannan and Stephen B . Hunter, urged the immediate formation of a government corporation with a modest capital to carry out the recommendations, do the research work connected with the program and prepare the necessary legislation. T h e whole matter is now pending before the N R A , the F E R A , and other government agencies and officials concerned. It looks as though there was a real possibility that some action would be taken to bring about a constructive solution. Unless some such scheme is effectuated the guerilla w a r f a r e which has heretofore marked this problem will again break forth with inevitably disastrous repercussions on the social order. 1 BIBLIOGRAPHY The Annals vj the American Academy of Political and Social Science. "Prison Labor," Vol. 46 (March, 1 9 1 3 ) . "Prisons of Tomorrow," Vol. 157 (September, 1 9 3 1 ) . KLEIN, PHILIP. Prison Methods in New York State. Columbia University Press, New York, 1920. The Osborne Association. Handbook of American Prisons and Reformatories, 1933. The Prison Industries Reorganization Administration surveys entitled The Prison Labor Problem in Maryland, etc. Washington, D. C., 1936, 1937. ROBINSON, LOUIS N. Should Prisoners Work ? John C. Winston Co., Philadelphia. 1 9 3 1 . (This is the best book on prison labor; it also contains a good bibliography.) STEINER, J E S S E F . , a n d BROWN, ROY M .

The North

Carolina

Chain

Gang.

T h e Uni-

versity of North Carolina Press, Chapel Hill, 1927. United States Bureau of Foreign and Domestic Commerce. Prison Industries (Domestic Commerce Series, No. 27). Government Printing Office, Washington. D. C., 1929. • T h e Presidential order setting up the Prison Industries Reorganization Administration, signed September 26, 1935, made it an independent governmental agency, unaffected by the collapse of the N R A , which gave occasion f o r the writing of the report. B y 1937 ten states had asked for the services of the Prison Industries Reorganization Administration. In three of these states active preparatory work for developing a state-wide p r o g r a m is now going on.

CHAPTER X V I

• Education in the Prison

1. The Failure of the

Community

A prison brings together those who have been adjudged unfit to enjoy the benefits of freedom in a civilized community. In one sense a prison sentence is a public announcement that for a particular individual the family, the school, the church, and the community as a whole have failed. The prison sentence is the last resort of the community in dealing with an individual. It is a last effort at re-education, rehabilitation, reconstruction; a final attempt to readjust an individual who has failed to fit into the world in which he was reared. Whatever the cause, the community behaves in fact as if it assumed that a prison sentence could be made to serve the end of readjustment. The Montana Crime Commission in 1930 said on this point: Whatever we may think the object of a prison sentence, or whatever our idea may be of the purpose to be attained in imprisoning men, it is very evident that for the protection of society we aim by such sentence to deter offenders from repeating their infractions of the law.1 Otherwise the release of most criminals in less than two years would be an absurdity. If the community did not implicitly believe that a prison sentence is a means to reformation, it would find other means of dealing with its criminals. Hence the process by which society attempts to do what it has hitherto failed in doing is the most important feature of the prison as an institution. The word education, as ordinarily used, is perhaps too narrow to describe the process involved. The activities of the state with respect to the convict from the time of his conviction to the time of his release from prison are part of a process of preparing him for his return to the community. The word education in this connection, therefore, means more than book learning, vocational education, imparting of health habits, provision of medical care, and instilling habits of labor and formal discipline. It means all these and more. It implies the attempt so to reconstruct the basic attitude of the individual that, upon release, he will adopt a mode of life different from the one which led him to the prison gate. 'Montana Crime Commission, op. cit., p. 85.

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I t is clear from what has already been said that at present the prison does not achieve this change.

In p a r t this failure is d u e to partial or

complete nonrecognition of the purpose of imprisonment: it has been said that not more than 40 per cent of the wardens recognize that their major function is an attempt at reforming the prisoner.

In part it is

due to the lack of trained personnel equal to carrying on a fundamental educational program. In part it is due to the f a c t that w e still operate on a simple and inadequate description of human n a t u r e : we still proceed on the assumption that good ideas, good projects, good intentions, are easily translatable into good practices.

T h e whole procedure of

our prison system m a y be explained in terms of belief t h a t if w e succeed in making the individual feel the desirability of better conduct he will succeed in behaving better.

T h a t is too simple a description of the

dynamics of human conduct. Unless we can m a k e the actual behavior of the criminal consistent with the kind of activity tolerated

and

approved in the outside community, our prison practice will end largely in failure.

Unless we succeed in establishing new habits in addition

to new resolutions, our efforts will p r o b a b l y fail. T h e whole history of prison practice proves this true. One judgment of this condition is typical. " T h e M o n t a n a Prison, to a large extent, is educating men to be criminals rather than reforming them or deterring them from further crime." 1 T h e State cannot remain content with this situation. T h e N e w Y o r k Crime Commission stated the problem succinctly when it s a i d : Our commission has, from the beginning of its work, taken the position that men are sent to State prisons primarily for the protection of society. During such confinement it is the duty of those in authority to make a continuous and positive effort to change the antisocial attitude of each inmate to an attitude of respect for the rights of the persons and property of others, so that when and if released he will return to society so instructed and so accustomed to habits of industry as to abandon his life of crime.2 W e are considering the problem of changing an attitude toward life and a habit of living. B u t this, of course, is no easy t a s k . One writer has stated the problem in the following t e r m s : If you will select 10 physicians, 10 ministers, 10 lawyers and 10 criminals, all equally interested and habituated in their profession, you will find it equally hard to change the life patterns of each group. The task of removing the Montana Crime Commission, op. cit., p. 85. ' N e w Y o r k Crime Commission, Special Report on Penal Institutions,

1

1930, p. 3.

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physicians, ministers and lawyers from their chosen fields would be just as momentous as removing the criminals from their field of activity. In each case there have to be new attitudes, new interests, new social values and a new philosophy of life. 1

What we are concerned with is giving people a new philosophy of life. T h a t , after all, is what we have been attempting to do these many years. But we have sought to do it by punishment. How impotent specific punishment is in the actual transformation of a way of life is seen in the fact that, with all of the harshness still characteristic of our prison discipline, the number of recidivists is very high. Admittedly the method we have employed in our prisons has not been effective. T h e cause of its failure has been suggestively indicated in this w a y : Select ten Democrats and try to make Republicans out of them; or choose a dozen Protestants and try to convert them to Catholicism; or try to make Americans out of Italians or Italians out of Americans, and you will discover that the delinquents and criminals you are handling are not any more difficult to change than non-delinquents. Certainly punishment will not be any more efficacious in changing one group than it would be in changing the other. 2

2. Objectives

of Prison

Education

Difficult as is the problem suggested, it is made still more difficult by the conditions that arise as a result of imprisonment. The prison tends to build up habits, adjustments, and adaptations to the institutional environment which in themselves become impediments to a reconstruction of the inmate's character. The prison educational program has, therefore, three definite and inescapable objectives. They are interconnected, but for the sake of the discussion it is well to differentiate them. The prison educational system must prevent the deterioration which is an almost inevitable by-product of confinement. It must seek to prevent the regression, the introversion, the self-centering, the substitution of imaginary for real interests, the tendency to day-dreaming, the disposition to cast back to previous satisfying experience as a substitute for the lack of current experience. It must attempt to prevent the tendency to dwell in the past that is general and inevitable among men forced to live in an environment which does not engage their initiative and interest. T h a t is the prison's first task. Perhaps it is its most 1 L . G. Brown, "Social Causes and Cures for Delinquency," in 1930 Yearbook 2 Ibid. National Probation Association, p. 20.

of the

EDUCATION IN THE PRISON

405

important task. Unless the prison can enlist the prisoner's interest in the prison environment in which he lives, most other attempts will fail. There is but one way out of this dilemma, namely, activity; the prisoner needs to be kept busy, the busier the better. The day must be filled from morning until night with as much interesting activity in the form of work, play, education, and conversation as possible. T h e best prison is the one where men are busiest, most interested in the immediate concerns that may be developed within the prison. Any activity which will contribute to healthy attitudes is desirable. Any activity which will take a man's mind off himself, which will keep him from roaming back in his mind to his previous activities, is good. T h e prisoner must be socialized before he is returned, and the first essential is to avoid the evil of deterioration consequent upon confinement. Secondly, the prison must seek to break down undesirable habits which the individual brought with him into the prison. That is perhaps the most difficult phase of the prison's educational program. T h e citations given indicate the difficulty of the task. All we know about the functioning of a habit is that it is a pattern of behavior acting in response to a stimulus. But the mere absence of a given stimulus over a period of time does not necessarily involve the total cessation of its response if the stimulus is repeated later. Something more is needed than the mere removal of the stimulus that awakens the undesirable response. I t is not enough to remove the "temptation." Something must be developed which will make the stimulus nonoperative, should it reappear later upon release. T h u s the demand is for substitution of new attitudes which make the prisoner aware of new stimuli, and responsive to them. The method of combating undesirable attitudes, beliefs, ideas, practices, preoccupations, and interests is to substitute desirable ones. T h e assumption here is that if life in the institution is sufficiently well organized, it will lead to the development of substitute interests and patterns of behavior for undesirable ones. This leads us to the third part of the program of prison education. The prison must not only prevent the deterioration of the prisoner as a result of confinement and destroy the undesirable attitudes he has brought with h i m ; it must go further and deliberately seek to inculcate new habits and interests. T h e best method here is in doing new things, having new and stimulating experiences, acquiring new skills, and securing new interests. But these must, as far as possible, be kinetic; they must be achieved in the doing. The adage "As a man does, so he i s " reflects a profound insight into human nature. The task is not impos-

406

CRIME AND THE COMMUNITY

sible. If the prison can provide new stimuli, in time it will call forth new habits, and if the habits become ingrained, ultimately they will produce a new person with a new character. The problem is one of forging a new community for the prisoner where community pressure becomes sufficiently insistent to call forth new behavior. If this continues long enough, the man will act differently, and if he acts differently he will become different. After all, the way of becoming a criminal is a way of learning how to become one. The process of unlearning need not be more difficult than the process of learning. This general problem has been stated in the following terms: First:

D e l i n q u e n c y or c r i m i n a l i t y , l i k e a n y other p a t t e r n b e h a v i o r , is an

a d j u s t m e n t to a social situation.

Sccond:

T h e delinquent or c r i m i n a l , a s a

social t y p e , is produced b y identically the s a m e social process a s the nondelinquent. Third:

W h e r e v e r one finds a delinquent or criminal, he finds a de-

l i n q u e n t or criminal social situation. Fourth:

A delinquent or criminal p a t t e r n

of behavior is not a n y harder to c h a n g e than a nondelinquent p a t t e r n of behavior.1

With all these considerations as a background we may now quote in extenso the discussion of the objectives of prison education in the 1930 report of the Federal Penal and Correctional Institutions in connection with the educational work of the prison at McNeil Island. I n addition to these activities, w h i c h c o n t r i b u t e to fitting m a n for life in t h e social g r o u p , there is a school s y s t e m .

I t s i m m e d i a t e aim is to a f f o r d m e n t a l

h y g i e n e , k e e p men occupied, a n d build u p morale. Its ultimate a i m is to m e e t t h e cultural, recreational, social, and vocational needs of t h e men.

It meets

the

for

first

b y providing

for mental

activity, by

meeting a desire

self-

i m p r o v e m e n t , b y furnishing an a c t i v i t y in which men can engage while in the cell houses, b y affording an o p p o r t u n i t y to pursue one's interests, b y m e e t i n g a desire for individual expression, b y focusing attention on other things than self, a n d b y k e e p i n g up morale through e n c o u r a g e m e n t , setting a g o a l , a n d d e v e l o p ing masterly self-confidence and i n d u s t r y . T h e second a i m is met b y p r o v i d i n g instruction w h i c h promotes general inf o r m a t i o n , reasonable mastery of tool s u b j e c t s , habits of sanitation and h y g i e n e , k n o w l e d g e of civil privileges, obligations and responsibilities, learning a t r a d e , a n d developing an appreciation.

W h i l e the latter aim is b o t h v o c a t i o n a l and

a c a d e m i c , at present the academic phase is receiving the greater emphasis ; plans a r e being p e r f e c t e d to provide, under the direction of the school, c o m p e t e n t training in the ordinary occupational activities. 1 1 G. Brown, op. cit., p. 10. 2U.

S. Bureau of Prisons, A n n u a l R e p o r t , 1930, Federal tions, pp. 22-23.

Penal and Correctional

Institu-

EDUCATION

IN T H E

407

PRISON

T h e a b o v e activities, health, recreation, w o r k , discipline and constitute the educational forces at M c N e i l Island.

schooling,

T h e y are all recognized

a g e n c i e s in p r o m o t i n g social e f f i c i e n c y ; if t h e y are effective in bringing a b o u t desirable modifications in the c h a r a c t e r of the individual on the outside, t h e y can not fail to work some improvement in the inmate c a p a b l e of learning.

As

to the school, if it served only to keep a large number of men busy while in the cell blocks, to meet a h u m a n demand for a n o p p o r t u n i t y to i m p r o v e , a n d to aid in preventing introversion, it would meet a real institutional need. I t is, in a c t u a l fact, serving with increasing effectiveness its higher social aim. 1 A n y well-directed a c t i v i t y . . . w h i c h promotes a h e a l t h y b o d y is in its broadest sense educational. T h e same is true of those activities that m a k e for m e n t a l h y g i e n e b y meeting the social and recreational needs of men. T h e y tend to prevent introversion, promote emotional s t a b i l i t y , and lead to the f o r m a t i o n of right habits, w o r t h y ideals, and an a p p r e c i a t i o n of b e a u t y and v a l u e .

To

these add w o r k and disciplinary activities, the o p p o r t u n i t y to pursue one's interests, to acquire that information w h i c h is the general possession of the g r o u p , to d e v e l o p facility in the essential skills and to learn to p e r f o r m some s e r v i c e ; and y o u have a well-rounded educational p r o g r a m , one c a l c u l a t e d to d e v e l o p those habits, ideals, attitudes, and interests which promote a c t i v e responsible citizenship. . . .

A sound b o d y requires a sane mind. " D o i n g t i m e "

is a d e g e n e r a t i v e process. T h e compelling motives of a normal life are w a n t i n g . D i s s a t i s f a c t i o n d u e to the t h w a r t i n g of n a t u r a l impulses causes the i n d i v i d u a l to seek escape from unpleasantness.

Unless activities are provided w h i c h en-

g a g e t h e a t t e n t i o n , call forth a response, and furnish a forward o u t l o o k , the i n m a t e is a p t to indulge in emotional excesses and to form the h a b i t of seeking the easiest w a y out of a difficulty. S u b s t i t u t i o n of imagination for a c t u a l i t y , or introversion, is one of man's most d a n g e r o u s habits. I t dissipates the e n e r g y , w a r p s the j u d g m e n t , and is a positive deterrent to achieving a goal. U n r e w a r d e d w o r k will not o v e r c o m e this difficulty. A c t i v i t y w h i c h calls forth spontaneous response is essential to afford mental h y g i e n e .

Recreational activities serve t o

meet this need a n d in addition are direct aids in developing such desirable social h a b i t s as cooperation, participation a n d good sportsmanship. 2

3. The Educational

Program at McNeil

Island

T h e manner in which these objectives are realized in practice also may be seen in the report of the Federal prison at McNeil Island: School w o r k is carried on both b y classroom and b y cell instruction.

Five

nights a w e e k classes are conducted in lecture courses, elementary school subjects, citizenship, Spanish, shorthand, m a t h e m a t i c s and d r a w i n g . 1

U . S. Bureau of Prisons, op. cit., p. 24.

Individual

- I b i d . , pp. i g - 2 1 .

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CRIME AND THE

COMMUNITY

instruction in higher courses in English, mathematics, and special correspondence courses is given on the tiers. The work in the night classes is also largely individualized, the special needs of the student being determined by diagnostic testing. It is the aim to adapt instruction as nearly as possible to the individual needs and interests of the men. All subject matter is kept within their comprehension, and care is taken to make assignments definite and of reasonable length. Content is selected on a basis of meeting adult needs, and an attempt is made to hitch it up with actual life activities. T h e extension courses put out by the department of education of the Commonwealth of Massachusetts form the basis for the courses of study. A mimeographed copy of each lesson is given out to each man enrolled in a given course. T h e student prepares the lesson and writes out a report, which is corrected by the instructor and returned. Men are encouraged to enroll only in courses for which they have ability. Special emphasis is laid upon the desirability of perfecting themselves in fundamental subjects that they may enjoy the advantage of recognition and promotion when they become employed on the outside. For the most part, the instructors are inmates who have been selected on the basis of mentality, conduct, knowledge of the subject and the desire to give service. In recognition of their work they are given special privileges. For obvious reasons, however, a sufficient corps of civilian teachers is necessary if well-organized work is to be accomplished. T h a t intelligent guidance may be given the student concerning the selection of his course, each man is given the new Stanford achievement tests in arithmetic, reasoning, language usage and word meaning. If there is considerable discrepancy in the various subject abilities, the Otis arithmetic reasoning and the Otis classification tests are given also. Since it has been found that there is a very high degree of correlation between mental and achievement tests, the rating of the individual is based on the average of all tests taken. These tests are excellent administrative devices; they not only tend to indicate general ability and point out those who need special consideration but they also prevent much misdirected effort on the part of the student and serve to protect the instructor against unfair criticism by inmates who do not make fair progress. N o test rating is given the foreign student who may have difficulty in reading understanding^ or who must translate the English. 1

4. Prison

Libraries

While all prisons have libraries, few have good ones, and fewer still make adequate use of even the poor ones they have. Most prison libraries are makeshifts, collections of old, worn-out, dull, cast-off books. The number of books is insufficient; their classification is faulty. T h e y are JU.

S. B u r e a u of Prisons, op. cit., pp. 23-24.

EDUCATION IN THE PRISON

409

often poorly catalogued and still more poorly cared for. 1 T h e r e are only a few prisons in the country which provide a modern library service. W h a t is true of books is frequently true of newspapers and magazines — t h e r e are not enough of them. And when we consider that a large portion of the men in prison life are idle, we can hardly overestimate the possible usefulness of a well stocked and properly administered library. T h e library is also essential to any adequate system of adult education, either cultural or vocational. This brings up the question of the control and direction of the library.

Ordinarily the library is in

charge of the chaplain. B u t the chaplain has many other duties to perform which take, and ought to take, most of his energies. T h e library is therefore of necessity a secondary interest with most chaplains. Frequently the chaplain is merely the general supervisor and the actual library administration is in the hands of a few prisoners who have, generally speaking, no special training for the important task, and have no conception of the possibilities of a good library organization.

Every

prison ought not only to have a good modern library, kept up to date, well arranged and catalogued, with adequate access to the books for all prisoners, but it ought to have a specially trained librarian. T h i s has recently been recognized, and the Federal prison bureau and some of the States as well have appointed special librarians for their prison libraries.

5. Educational

Resources

It is not possible to insist too strongly upon the utilization of the educational resources of the institution. T h e r e is one prison which has nearly 150 college graduates and provides only a poor fifth grade schooling for a few men. This represents an enormous waste of opportunity and material: opportunity for the more educated to teach, and opportunity for the less educated to learn. It represents at the same time a failure on the part of the prison administration to fill the idle and unused hours of both the prisoners who would teach and the prisoners who would learn and take their minds off themselves, take them off their past careers and keep them from brooding about their lot in life. Here perhaps is the greatest opportunity for interest-developing activity which would be useful to all concerned, would involve no great expenditure of effort or money on the part of the prison organization, and would lead ' S e e the Prison Industries Reorganization Administration surveys: The Prison Labor Problem in Maryland, p. 23; in Kentucky, p. 10; in West Virginia, p. 35; in Vermont, p. 33; in Georgia, p. 50. See also The Prison System in Illinois, pp. 200-201; 340-341.

410

CRIME AND THE

COMMUNITY

to the best of results in all ways, including internal discipline. It requires supervision and co-operation. But if every prison made full use of its internal educational possibilities in all the directions indicated b y its varied human resources, the whole atmosphere could and would be changed. Nor is it necessary to have either large classes or large schoolrooms. It is desirable and essential to have a good library and a good supervising educator. Men can be taught, as they are in San Quentin, for instance, through the bars in the absence of adequate classrooms. In those prisons which as a matter of course group a number of men in the same cell, the cell may become the classroom. It requires only good light within the cell, an opportunity for possessing the facilities of writing and reading—the right to paper, pencil, slate, and b o o k — a n d an organized visiting teaching service at regular hours of the day. This is not ideal, nor is it recommended as an objective. B u t there are thousands of men in our prisons at present who are locked in their cells the greater part of the day without any activity at all; and it is recommended that this time be occupied and organized with the internal educational resources of the institution. The prison as an organized institution for the education of its inmates may justly be criticized for failure to utilize its opportunities and resources. It indicates both lack of interest and lack of constructive imagination on the part of the warden to permit his men to sink into a sort of semiatrophy rather than use his opportunities as head of the institution for the promotion of the spiritual welfare of its inmates.

6. Prison Education at San Quentin The achievements of the educational development at San Quentin prison in California are highly significant. Here again direct quotation shows what is actually done, and may be copied by others.

In this

prison there were 1 7 0 0 men enrolled in classes. During the biennium, we have completed eight school terms. The average enrollment for each term was 7 1 3 , with an average number of completions for each term of 403 or 56.29 per cent of class enrollments completed. The percentage of completions would have been larger but changes of work, assignments to road camps, paroles and discharge caused the men to discontinue their courses. . . . Instruction is given in conversational French, German and Spanish. As during the previous biennium, Spanish is the most popular. Interest in this language has increased its enrollment rapidly. 955 inmates have completed courses in Spanish during this period, as against 3 1 2 for the previous

EDUCATION IN THE

PRISON

411

biennium. This is an increase of 200.6 per cent. T h e following subjects are covered by this division: Spanish, French, German, advanced English, general history, philosophy, foreign trade and economic geography. T h e last five of the above-mentioned classes have been added during the last quarter. There are 201 students in this unit. T h e objective of this department is d u a l : first, to give every possible means of equipping our students to increase their earning capacity; second, to divert their minds to think along modern constructive channels. Starting as an experiment with 135 students engaged in studying three subjects with a total of six class periods per calendar week, this department has passed the state of experimentation. A t present it has an enrollment of 937 students engaged in studying 14 subjects with a total of 32 class periods per calendar week. All subjects that cover and pertain to trades show an increase over the former of 600 per cent. Startling as it may seem, it is only the natural and healthy growth of a vigorous campaign, capably taught by experienced inmate educators, full cooperation by prison officials, enlarged quarters properly equipped for school purposes, a new enthusiasm thoroughly aroused with ambition tending toward self-improvement by over 50 per cent of this institution's population. T h e results justify all efforts and expenditures involved. . . . There are now 96 students engaged in studying agricultural subjects. T h i s is an increase of 83, or 63.8 per cent. T w o of these classes have been added during the last quarter, and as in the vocational classes, the increased enrollment is due to a vigorous campaign. Courses now being given are letter box courses in vegetable gardening and soil management, classes in practical farming, dairy farming, vegetable and truck gardening with marketing, and one course in landscape architecture. T h e teachers in this division are men who have had education, practical and theoretical, in this field. Under their supervision, the following new courses are being prepared: Floriculture, horticulture, bee culture, rabbit husbandry, practical animal husbandry and practical fowl husbandry. 1

Less extensive but equally interesting is the development in the State prison at Waupon, Wisconsin: With the constant increase of the population of the State prison during the period covered by this report, there was also a steady increase in the number of inmates making application for extension courses. T w o principal factors have quite definitely kept the work from growing more rapidly than here shown. These are ( 1 ) the physical impossibility of one university representative visiting every student fortnightly, and (2) the inability of the inmates themselves to p a y for the courses. 1

State Board of Prison Directors of the State of California, Biennial Report for 1929-

193°. PP- 77-79-

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CRIME AND THE COMMUNITY

The first of these factors has been overcome by having two university representatives visit the institution regularly. This has made possible a more complete check-up on each student biweekly and has been an important factor in bringing about a large increase in the percentage of completion. This percentage has increased from 57 per cent to 68 per cent. The second factor has been partly compensated for by the authorization of Wisconsin Free Library reading courses during the first year of the biennium. Lists of books on any subject are arranged for interested inmates and the books are sent one at a time to the student in each course without charge. A written report is required on each book. This service in addition to the very inexpensive penmanship course has caused an increase in enrollment from 192 in the first year to 367 the second year, or an increase of 91 per cent.1 Perhaps enough has been said to indicate both the problem and the means of attacking it. T o state it in the simplest terms, the prison ought to be so organized as to find for each prisoner a teacher in some subject in which he may be interested and to find for each prisoner w h o is equipped to teach something useful a pupil whom he can instruct. For the program thus outlined each prison needs an educational director. 2 In the larger prison there should also be a vocational director. It may be added further that too much attention cannot be given to the development of good library facilities.

7. The Prison

Community

T h e penologist and prison administrator has become conscious that the prisoner is a human being with the multiple needs of other people and that he must be allowed to live as nearly normal and self-directing a life as is consistent with prison discipline. H e will some day return to society and he must be prepared for it. B y way of preparation his social nature ought to be developed rather than allowed to atrophy. One student of the prison problem had this to say on the s u b j e c t : Of t h e prisoner it is well to learn and understand his b e n t b e f o r e h e is assigned to e m p l o y m e n t or definite decision is made as to his p l a c e in the prison. I t is thus in a free c o m m u n i t y . W h y should it not likewise be so in t h e institution c o m m u n i t y ? M e n and w o m e n order their lives after their own inclinations, b u t in their y o u t h their elders and the State itself exercised a degree of control 1 Wisconsin State Prison, T w e n t y - f o u r t h Biennial R e p o r t for the period ending June 30, 1930, pp. 1 7 - 1 8 . 2 S e e recommendations of the Prison Industries Reorganization A d m i n i s t r a t i o n s u r v e y s ; for example, of Vermont, p. 3 4 ; oj Kentucky, p. 1 0 ; of Oklahoma, p. 3 9 ; of Georgia, p. 1 1 .

EDUCATION IN T H E PRISON

413

and direction which in after life proves to be helpful. The spirit of repression and the exemplification of repression within the institution must be lifted. I t can be lifted successfully. Too much government within the institution is as bad as too much government without. T h a t institution is best governed that is least governed. The restraint that the institution imposes on its inmates should be the restraint of direction of energy and thought into healthful channels, having for its purpose the reeducation of the unbalanced mind and the correction of the misdirected mind. A prison will probably always be a walled city, but it may be a city within its walls, with houses, some small and some large, some stronger than others. It is not necessary that forts be erected for all the population because 10 per cent of them will not conduct themselves properly unless immured behind massive masonry and case-hardened steel. As the man outside makes up his day, so the prisoner should have facilities to make up his, a portion for recreation, a portion for study and reading, a portion for work and, if his education has been neglected, a portion of his time to be given to the schools. If he desires to learn a trade or to improve his knowledge of a trade he already knows, provision in the training schools must be made. T h e whole prison process must work together with one single aim and everything and everybody else must get out of its way; that aim is the return of the man to society with a correct attitude toward it and with an equipment adequate to self-support. And the prison and parole and scientific staffs should know him so well by that time that mistakes in placement will be few.

How such a program is approximated may be seen from the report of the Massachusetts prison colony at Norfolk: Small but well-equipped plumbing, paint, electrical and carpenter shops and a very serviceable sewing room have been set up in the basements of these buildings. The development of the usual programs for night schools, church services, athletics and entertainments has also formed an important, if minor, part of our life to date. The cooperation of officers, inmates, and especially the citizens in the neighboring towns and cities has made possible a variety and a quality in these activities which have been far above what might be expected in such restricted circumstances. The American Legion, men's clubs, churches of every denomination, athletic clubs, amateur dramatic societies, school and other public officials, and numerous individual citizens from Boston to the Cape have given us their aid in carrying out these projects. A small dispensary and a dental clinic have been established with the aid of an unusually conscientious and able inmate physician under the direction of the officer-nurse. From nothing, a library of a thousand volumes has been built up and a modern system of cataloguing installed through the assistance of Miss Edith Kathleen Jones of the State Department of Education. Even a colony fire department and a watch organized by the inmates under the direction of one of the officers in charge

414

CRIME AND THE

COMMUNITY

have been instrumental in preventing a number of fires from doing serious damage and in helping to police the grounds. Although we are constantly reminded that we are " o n l y a construction camp," the 300 men who have lived and worked and gone on from here in the past two years have the same joys and sorrows, the same aches and pains, the same desires and needs, the same weaknesses and capabilities as a community ten times as large. However, in the maintenance of our everyday program and in the evolution of our ultimate plan, w e are literally pulling ourselves up by our boot straps, not without a humble recognition of the risks involved but continually encouraged by the rewards obtained. 1

8. Group

Activity

The report quoted above goes on to describe a system of group activity and social education which deserves more attention than it has received: A s a direct outgrowth of the group system, an inmate organization, called the council, has developed and together with the staff constitutes the community government of the institution. T h i s is not to be confused with the strictly penal administration of the colony which is in the hands of the superintendent and his assistants. Also in contrast to inmate organizations in some institutions which are founded on the principle of self-government in the hands of inmates only, this community organization operates on the principle of joint responsibility in which both officers and inmates take part. T h e council consists of 12 inmates, 3 nominated and elected by the inmates from each of the 4 houses for a term of 3 months. T h e three councilmen from each house and the house officers act as a house committee which meets weekly, and a weekly meeting is also held in each house with all members and the house officer present. Questions affecting the welfare of the house or the institution are discussed at these meetings. Such questions are then carried b y the councilmen to the weekly council meeting and by the house officer to the weekly staff meeting. T h e council elects its own chairman and secretary and appoints its own committees on construction, education and library, entertainment, athletics, food, maintenance, store, etc. T h e staff of 21 officers also has its chairman and committees on construction, education and library, entertainment, athletics, food, maintenance, store, etc. Questions relating to any of these fields of activity are taken up in weekly joint meetings of the respective committees and by them referred also to the weekly meetings of the council and the staff. T h e staff and the council meet weekly with the superintendent, who refers any action taken in the meeting to the other for confirmation when requested. T h e council has advisory power 1 Commissioner of Correction for the Commonwealth of Massachusetts, Annual Report for the year ending November 30, 1929, p. 28.

EDUCATION IN THE

PRISON

415

only, and final action always rests with the s t a f f ; suggestions may originate in either body, however, and are referred to both before final action. However, in the 16 months during which the plan has been in operation the two have never failed to agree finally on any decision. The plan does not always give the "best men" the leadership—frequently otherwise—and it has been interesting to note what responsibility does to these others. That the plan has not run into difficulties frequently encountered by inmate self-government organizations, where control has soon passed into the hands of the bold and unscrupulous, is due to the very important and sincere part played in it by the officers, who (contrary to the usual circumstances) are whole-heartedly a part of it and who act as a proper balance wheel. On the other hand, the very presence of the average man in the council demonstrates that it is not an "administration affair," and the very concrete advantages derived for the men by the cooperation of the council and the staff continually demonstrate its vitality. Every effort is made to eliminate "politics" and "individual wirepulling" by holding the council strictly to the consideration of general policies and programs affecting the whole institution. Matters affecting individual house groups are settled by the house officers and the inmates affected. Individual matters are settled between individuals. In general the plan has worked, although it is neither an "honor s y s t e m " nor "self-government," because it is founded frankly on a basis of results for both staff and men. In several crises the question of whether the council should continue or not has been raised, and each time it has been answered in the affirmative, solely on the basis that both the staff and the men can operate more satisfactorily with it than without it. Neither officers nor men give up their independence or their responsibilities, and each continually checks the other to insure square dealing; but both agree that cooperation works better than opposition where men must work and eat and live together, whatever the circumstances. To date the success of the plan is evident, both in the morale of the men and in the results achieved. Not only have grievances been aired and ironed out before they become acute, but constructive measures initiated, either by the staff or by the inmates, have been carried out with much greater success than would otherwise have been possible. During the first six months production on construction was doubled by actual record, due to the cooperation of the committees on construction, and the entire program of the institution in all its activities has been given an impetus and a vitality not otherwise possible. Cooperation and constructive service, instead of opposition and destructive enmity, on the part of both inmates and officers, continually break through the traditional prejudice of keeper and convict. And it is through such rifts in the old armor that one glimpses the normal, human, living body, the restoration of which is the aim of our whole endeavor. 1 iCommissioner of Correction of Massachusetts, Annual Report for 1929, pp. 3 1 - 3 3 .

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C R I M E A N D THE C O M M U N I T Y

Reviewing what has been said as to organization of penal institutions, whether we look at the various activities in different institutions with respect to classification, labor, or education, we find scattered instances of the most progressive features. If it were possible to combine in one institution the best features actually in use in different institutions, there would be a model prison. It is not that there are no progressive institutions. It is rather that an institution which shows amazing courage and progress in one direction will continue old practices and out-of-date methods in other respects. For the future we need not go outside experience in the development of our prison program. W e need but to extend to all prisons the best practices now employed in particular institutions. BIBLIOGRAPHY The

Annals

of the American

Academy

of Political

and Social

Science,

" P r i s o n s of

T o m o r r o w . " V o l . 157 ( S e p t e m b e r , 1 9 3 1 ) . A n n u a l R e p o r t s of the C o m m i s s i o n e r of C o r r e c t i o n , M a s s a c h u s e t t s , 1 9 2 7 - 1 9 3 3 . MACCORMICK, AUSTIN H . gram.

The Education

of Adult

Prisoners:

A Survey

and a Pro-

N a t i o n a l S o c i e t y of P e n a l I n f o r m a t i o n , 1931.

N e w Y o r k State. C o m m i s s i o n to I n v e s t i g a t e Prison A d m i n i s t r a t i o n and C o n s t r u c t i o n (Lewisohn Commission). System.

An Educational

Program

for New

York

State's

Penal

Special report . . . presented to the L e g i s l a t u r e . . . January, 1932.

A Preliminary

Report

on an Educational

Project

at Elmira

Reformatory.

Special report . . . presented to the Legislature . . . F e b r u a r y . 1933. T h e O s b o m e Association. Handbook

of American

Prisons

and Reformatories,

United States D e p a r t m e n t of Justice, B u r e a u of Prisons. Federal

Offenders,

1933. 1932-33.

A R e v i e w of the W o r k of the F e d e r a l B u r e a u of Prisons D u r i n g the Y e a r E n d i n g June 30, 1933, including Statistics of Federal Prisoners and of Federal Parole and Probation. U. S. P e n i t e n t i a r y A n n e x Press, F o r t L e a v e n w o r t h , Kansas, 1934. A n n u a l R e p o r t , 1930, F e d e r a l P e n a l and Correctional Institutions. U . S. Penit e n t i a r y A n n e x Press, 1930. (Recent reports of the State prison departments in Wisconsin, California, New Y o r k , and New Jersey contain materials on current developments for the education of prisoners.)

CHAPTER X V I I

• T h e Prison as an

Organized Community 1

T h e system of penal administration described in the last five chapters w a s challenged by the late Thomas Mott Osborne. T h e challenge consisted in demonstrating in three different institutions, Auburn and Sing Sing in the State of N e w Y o r k , and the Portsmouth N a v a l Prison, that a very different type of penal system could be developed and maintained. The penal administration developed by Osborne had as its base the co-operation of the prisoners. It operated upon the assumption that the prison could be treated as a community, and that the prisoners possessed among themselves a public opinion that if properly harnessed could be made effective in the enforcement of public policy and the development of public morale, which would make discipline both easier upon the warden and more effective with the men. It consisted of the development of a system of semi-self-government within the prison, and had as its most useful instrument open and public dealing between the warden and the prisoners on all issues affecting the men. I t was initiated in 1 9 1 3 when Thomas Mott Osborne served as a voluntary prisoner in Auburn prison. This helped him to capture the imagination of the prisoners and win their confidence. As a result of this contact with the prisoners, and with their co-operation on one hand and the good will of the prison officials in New Y o r k State on the other, he developed the new type of penal administration now to be described. This system, first developed in Auburn, was later applied successfully b y Osborne to Sing Sing and to the Portsmouth N a v a l Prison. In essence the new system of penal administration hinged upon a type of democratic machinery adapted to prison needs.

1. The Government T h e resulting machinery proved simple enough. A general election — w i t h the shops as the electoral districts—gave the basis for a constitutional convention. This constitutional convention, representing all 1

T h i s chapter is a d a p t e d f r o m the author's Osborne

Carolina, 1 9 3 3 .

of Sing Sing.

Chapel Hill, North

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the prisoners in Auburn prison, after long and detailed discussion of the problems and difficulties involved and of the prejudices that needed to be overcome and the machinery that needed to be devised, set up a system of government. This system of government again was simple. At its base was the insistence that all men within the prison, regardless of their record, should become citizens of the prison self-government on an equal footing. All the records of past conduct within the prison were to be disregarded, as the prisoners refused to recognize the moral worth of the judgment imposed by the prison authorities. Secondly, the shop, which had been the basis for the election of the delegates to the constitutional convention, continued as the base for the electoral unit of government. T h e delegates, roughly speaking two men for each shop or company, were to be popularly elected, subject to recall by a majority of the men, and voting was to be universal for all the men who first agreed to become citizens of the community (and practically all did). These elected delegates thus became the government of the prison community. In case of great crisis or broad decision, general meetings were held for free and public discussion of the basic principles and rules involved. Thirdly, the Board of Delegates, as the governing body was called, elected from among its members an executive board of nine that was in direct charge of the activities of the community. This executive board in turn selected a Sergeant-at-Arms who was given the freedom to select his own deputies and who assumed responsibility for discipline and order. The Sergeant-at-Arms, of course, was removable by the executive board; the executive board, in turn, was removable by the board of delegates; and the delegates themselves were not only subject to recall by their constituents, but subject to removal by the governing body of the prison. The whole machinery of the government had to stand the test of popular approval at regular elections. The executive board also set up judicial machinery for the handling of disciplinary cases as they arose within the prison. In essence this system of government, first developed in Auburn, was copied later at Sing Sing and still later at Portsmouth Naval Prison. In each case minor changes were made to meet the special conditions that prevailed in these different institutions and to meet the needs that experience made insistent. Such machinery as has been described is, after all, very simple. It had the consent and approval of the men, and must have this if it is to work with any degree of effectiveness. It must be above-board and honest beyond any suspicion of a doubt. There must be no inter-

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ference in the choice of delegates or in the selection of the executive and administrative agencies. Differences of opinion between the Warden and the community must be thrashed out in the open. The Warden must accept the judgment of the men. He may, and Osborne did, hold the men to high standards by insisting that the men must select inmates whom they trusted, but at the same time inmates whom he could trust. With this as a basis of common confidence and understanding, and with the machinery we have indicated, the work done in the three prisons was carried out. The structure sketched above was, after all, only a skeleton. This skeleton took on form and content from the things it did and the responsibilities it assumed. What it did and how it did them are now to be described and discussed. The executive board and the courts were the basic institutions of this prison democracy.

2. The Executive

Board

The Executive Board of nine prisoners who were elected to office by the board of delegates became the real power of government within the prison community. As already indicated, this board appointed the Sergeant-at-Arms. That was perhaps its most important function, as upon the character and ability of the Sergeant-at-Arms depended the effective discipline of the community. But that, after all, was only one of its many important functions. It appointed all committees and designated their chairmen. It received the reports of these committees, removed and replaced their members at its discretion. It ordered and supervised special elections in the different shops, and this was an office of considerable importance. The release, transfer, resignation, recall, or suspension of a delegate left a shop without representation in the board of delegates. To fill this gap it was essential that a special election be called for and supervised. It acted upon recalls, and upon occasion declared such demands for recall ineffective for lack of sufficient signatures. In one case it declared an election in the hospital company at Auburn illegal because one prisoner was denied his vote. It must be remembered that all changes made were with the consent of the authorities, and that the special committees appointed were for the purpose of consulting the Warden, Principal Keeper, or some other official. Among special committees that the executive committee in Auburn appointed at different times were the following: on spoons in the gravy

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bowls; on enameling the buckets; on hair clippers; on distribution of mail; on the rule that a man writing a letter for another had to give his own name as well as the name of the man for whom he composed the letter; on wash kits, and on washing state sheets every two weeks; on the request of an idle company that wanted to break stone; on the request of the machine shop company for the removal of a certain prisoner; on broken buckets; on a special entertainment for the mayors who were to visit the prison; on a request that the doctor examine all the men in the idle companies and remove those that were ill to the invalid company and put the others to work; on a request that a deputy rearrange work so as to make it more instructive and useful; on cleanliness of the cots; on individual shaving cups for all shops; on the method of serving food in invalid companies; on burned-out electric lights; on substitution of agate cups for tin cups; on appropriate music for all occasions; on new razors for cloth shop; on special shoes for foundry men; on securing hot food in dining room; on seeing a doctor in regard to a certain prisoner; on the question of feeding the men working at night; on mittens for men working on the outside; on a request that pillow cases and bed sheets be numbered so that each man should receive his own again from the laundry; on a request that ill prisoners be moved from their cells to the cots; on the request of an invalid company that wished their cells painted and cleaned; on repairs in galleries; on the suggestion that a sink large enough to accommodate 12 men be placed in the kitchen; on underwear for men who really needed it—especially those working outside; on a request that light be installed in cane and broom shops; on old clothes for working men; on the suggestion that a barber shop be built in the lower furniture shop; on aprons for men in chair and broom shops; on permission to raise a fund to hire a lawyer; on the suggestion that a window be cut in the back of the chapel; on a complaint against a certain prisoner; on giving a show to officers and their friends; on a suggestion that members of the Lower Form have reasons for removing delegates explained to them; on socks for men in the foundry; on raising a fund for a cork leg for a guard. These are but a few of the great variety of activities for which special committees had to be appointed, consultations had with officials, resolutions taken, reports made, and action recorded. It was government by discussion, consultation, and compromise. Of a somewhat different type were certain activities of investigation which the executive board developed. In addition to the appointment

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of the court and the appointment of the Sergeant-at-Arms, the executive committee in Auburn undertook to investigate conditions in companies upon receiving information that trouble was brewing. Thus in the case of the coal-heavers' company, the Bulletin printed by the prisoners reported that A motion was made and seconded to call the members of the coal-heavers company together to discuss conditions in that company. The members of the executive committee called the company together and after listening to the discussion on the part of several members of the company recommended the removal of Brother W. in the interest of peace and harmony. It also extended to Captain Kling a vote of thanks for what he is doing for the League.

Similar action was taken at different times in the Weave Shop, the Cloth Shop, the Cabinet Shop, the Bake Shop, as well as in others. An extension of these activities and influences may be seen in the request by the Principal Keeper to the executive board that it inform the men in Captain Shoemaker's Company that he intended to put them to work and that he expected them to meet him half way. The clerk was asked to carry the message to the company and brought back the news that "the men promised to do what was right." Still more indicative of the range of activities that was developed through the agency of self-government, perhaps, was the request by the executive board that the Warden appoint a committee of five officers to meet with a committee of five members of the Executive Board to discuss the conditions in the prison. Perhaps the reader already feels overburdened with too much detail of the activities by the executive board of the prisoners' organization. On the other hand, these activities and their range indicate the vitality and the significance of the institution that had developed.

3. The Courts Next in importance to the Executive Board came the Courts. These were best developed in Sing Sing. The courts proved most important because they directly determined the nature of the cases that were to be disciplined and the form that discipline was to assume. The basic problem of a prison—beyond and above all others—is the problem of discipline. There the greatest difficulties lie, and the handling of the discipline determines the character of the prison administration. It sets the tone—the mode. It creates the atmosphere and gives the institution its morale. The courts, therefore, were pivotal, and upon

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their success or failure depended the success or failure of the whole scheme of community organization. Unless the prison community accepted the prison judicial machinery in good faith, as an agency of justice, nothing was possible. This simple fact arises from the fundamental truth expressed by one of the prisoners when he said:

"Men,

all men, detest and deplore hypocrisy and deceit even though they be men whom the law has found necessary to stigmatize with the name of felon. Truth and justice, after all, will appeal as strongly to men in prison as to those who never had the misfortune to be sequestered within prison walls." It was upon the acceptance by the prisoners of the justice and honesty of their own judicial machinery that the whole scheme was made to rest. In Sing Sing the inmate court was composed of five judges, appointed by

the executive board

for five months each, one being

appointed each month with no right of immediate

reappointment.

There is at least one case of a prisoner who refused to serve as judge. " O . K . B i l l " resigned soon after his appointment, saying: 47

"After

years of being judged I cannot judge others and order

them

punished." T o this court, which met every afternoon after work, were brought all cases of breach of discipline that arose in the prison.

The

court met in the chapel and was open to the public, that is, to the prison community and to visitors from the outside.

T h e cases were

prepared in advance, and the Sergeant-at-Arms brought the defendants and the witnesses before the bar. There were no lawyers, no prosecuting attorneys, no legal formula, and no precedents.

T h e plaintiff—

sometimes a guard, but frequently a delegate, or a sergeant, or a prisoner—would state his case. T h e defendant would then be asked for his side and examined. The witnesses would be examined by the judges. Everything was direct, simple, and to the point.

One day a

judge from Brooklyn, after watching the proceedings of the Sing Sing courts, remarked to one of the inmates : " I was very much interested to notice that apparently you have no code of law and no rules of procedure."

The prisoner replied:

" N o , your honor.

In this court

we try to manage things by common sense." T h e decision, when rendered, was subject to appeal. T h e appeal might be made by the state, that is, the Warden's representative, by the community, through the Sergeant who was compelled to maintain the dignity of his position, by the accuser, by the defendant, by any one of the witnesses, or even b y any one of the spectators. A n y one who felt that justice had not been done was free to appeal the case to the Warden's court, which

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423

was composed of the Warden, the Principal Keeper, and the Doctor. This, like the inmate court, was held in the chapel, and was open to the public. The judges who had presided in the inmate court were there to explain and defend their decision; the other participants were present, as they were concerned in the outcome. The public was always there. There were always anywhere from two to three hundred men present during the court sessions. In a case of special interest, many more would appear to see the case tried. That is, the community participated in the court procedure, and in its own way passed judgment on each participant and upon the court's justice. It automatically made the problem of discipline a matter of broad public activity and public concern. The visitors were often friends of the participants on one side of the case or the other; but frequently they were simply interested members of the community. As one prisoner remarked: " I t is the best show in town." The prisoners in the cases revealed their character to the world, and the world passed judgment upon them. A breach of the rules, instead of being, as it had been in the past, a private matter between the offender and the prison officials, now became a matter between the offender and the community, with the prisoners' law-enforcing machinery and the prisoners' court representing the opinion of the community at large. When appealed, the cases served many useful purposes. Appeal gave the culprit a sense that he had had a fair trial. It compelled the judges to defend their decision in public before the Warden and before the community on grounds that would appeal to both; the interests of the Warden and the prison community thus united against the lawbreaker. It gave the Warden an opportunity to know what was going on and an opportunity to lay down fundamental rules of policy which should govern the actions not only of the prisoners but of the lawenforcing machinery. And it compelled the Warden to behave in a manner which the prison community would recognize as just and fair. More important than that, it removed the Warden from the position of being the direct source of discipline, and turned the sense of grievance against the court and the inmates' police, instead of focusing it upon the Warden. The importance of this can hardly be overemphasized. The Warden stepped in between the irate community and its victim and pleaded for justice to the culprit. The Warden could thus act in public as the friend and defender of the aggrieved. It automatically changed the position of the Warden in relation to the problem of discipline. It made his authority no less. It made it more

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pervading, but changed the plane of his behavior from a secret, arbitrary, and personal infliction of punishment to one of a public defense of the broad interest of the community at large. T h e Warden per se thus came to stand for justice in the best sense of the word. T h e character of the inmate court at Sing Sing is indicated b y the fact that the guards, who at first demurred at testifying before a group of prisoners and being examined by them, soon learned to defer to the judgment of the prisoners' court and to treat its members with deference and respect. T h a t was a great moral victory for all concerned, and was an unusual bit of evidence of the v e r y real force for good discipline which these courts represented. Sentence b y the court involved suspension from the League for a long or short period of time, depending on the nature of the charge. Suspension automatically removed the prisoner from the rights of citizenship in the prison community. These rights may be summarized here so as to give point to the power of the court. A member of the Mutual Welfare League had yard privileges after work and during the noon hour. He could also be out on Saturday afternoons and on Sundays and holidays. H e could attend school, play what games he could in the yard, and attend the moving pictures or other entertainments. He had freedom to write all the letters he wanted to write. H e could benefit from the change in the rules governing expenditure of money for purchase of things in the prison store. He was a member of the community with a right to vote. He walked to and from his work under the leadership of his own elected delegates. He could be a candidate for office, he could vote, and he could be a member of a committee. He was free to mingle with others and to behave like any other human being within the confines of the prison. T h e loss of citizenship automatically deprived him of these prerogatives. H e thus reverted to the status of an old-time prisoner with no rights except those that the men had enjoyed previously. He was automatically deprived of all yard privileges. He could attend no shows, play no games, have no part in the free life of the community. In the morning, when the members of his company went to work with their own elected delegates in charge, he was marched behind by a prison keeper. A prison keeper called for him after work and took him to his cell, to be locked up while the rest of his friends stayed out in the yard. A f t e r supper, when the men were unlocked and let out of their cells to attend the various activities that had developed he was forced to stay locked up in his. On Saturdays and Sundays, when he could

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425

hear the shouts and yells from the yard where the men were watching a baseball game, he had to stay in his cell. And, worst of all, he did not get the sympathy of his companions. Instead of being a hero as in the old days, he had become a nuisance. They said: "What is the matter with him anyway—the fool." One day a particularly rough gangster who had turned over a new leaf remarked to Osborne: "Say Warden if every one in this place was like you and me wouldn't this be a wonderful place to live i n ? " The way of the transgressor is hard indeed when there is no sympathy for him from his friends. Because his prison companions had carried the charge through, the man was lonely indeed. It did not take long for a man to appeal for mercy. This led, especially in Auburn, to development of a parole board, with powers to recommend parole for the men to the executive board. Those found worthy were paroled, usually in charge of their company delegates. Osborne said that during his incumbency of Sing Sing there was not a single record of a man's appearing twice before the court, or of a man's violating the prison rules while under sentence and thus laying himself open to judgment not by the court but by the prison officials as of old. It is interesting to examine the cases that came before the courts. These cases show clearly the basic problems of discipline that arise in the prison. There were brought before the courts cases of fighting, assault, refusal to work, writing licentious notes, licentious conduct, being outside the shop without permission, smoking at work, leaving place in mess hall without permission, spitting in chapel (the man explained that he had forgotten to rid himself of his chew of tobacco and did not know what to do), impertinence, making unmentionable remarks about the League, threatening to "kick the teeth out of the delegate," insolence to foremen, creating disturbance, shooting craps, using letter paper belonging to another, conduct unbecoming a member, conduct unbecoming a delegate, refusing to testify, lying to the court, threatening witnesses, fighting with dangerous weapon, smoking in line after bugle call. In addition to the ordinary discipline already indicated, the court sometimes took different action. In one case it asked the doctor to examine the man because he appeared "simple," in another it made the same request to find out if the man was really unable to work. In some cases it asked the Deputy Warden to remove the man from a certain shop, as he could not get along there. In one case it asked the Warden to lock a man up and dispose of him as he saw fit. In one case it asked that two certain men should be kept separated at

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C R I M E AND T H E

COMMUNITY

all times. In general, however, the ordinary punishment of suspension was sufficient to enforce the discipline of the court. A good contemporary description of the courts is the following. T h e dispatch and precision with which this court transacts its business is amazing. I t is only a little less amazing when one reflects that two of the judges, at least, would be marked as able lawyers in any court room. T w o of the number are life-termers; that is, they were exiled from society for murder. Another, perhaps the ablest lawyer in the prison, . . . is serving a long period for grand larceny. One reports no more than dispassionate facts in recording that the fairness, the force, the dignity, and the ability of this man's conduct of a trial would grace any bench. His sincerity is real. An Italian prisoner is brought to the bar. B y the Warden's office and the Brotherhood's Sergeant-at-Arms the case has already been prepared. T h e judges, with a preliminary knowledge of the facts, examine the culprit. I t appears that he refused to obey the morning summons of his keeper to leave his cell for work in his shop. Evidence shows that owing to some slip in the machinery he was practically without shoes; also that the keeper more or less approved of the prisoner's action as a means of attracting attention to his needs. Although his prosecution is not vigorously pressed, the man receives from the court a disciplinary, though sympathetic, verdict. And in a minority opinion one of the judges reprimands him for breaking the prison's fundamental law,—• obedience,—whatever the circumstances and however condoned by authority. T h e shame-faced defendant, the sympathetic but stern-faced judges, the simple earnestness of the business, have banished every doubt of their genuineness. Whatever they may be, they are not mock courts in Sing Sing. On some days the appeal court meets in the same place. On this particular occasion, six cases are on the calendar. T h e Warden is the presiding judge, and on his right and left respectively sit the prison physician and the Principal Keeper. Delegates of the Brotherhood act as officers of the court. Transcribed proceedings of the trial court are in the hands of the appeal judges, and, in order, the appellant and a member of the trial court are heard. Of the six cases mentioned, it is worth noting that only two were appealed by the representative of the state. In one, the lower court's verdict was upheld, and in another decision was reserved, pending further consideration. T h e first case heard is typical of those in which the sentenced men appeal to the Warden's court on the ground that the judges have been too severe. Convict No. X X , one of the shoe-shop gang, is called to the bar. He was found guilty, it appears, of stealing a bag of sugar from another prisoner, and sentenced by the trial court to thirty days' suspension from " G r a d e A " (prisoners with first class records and advantages thereof), and the privileges of the Brotherhood. He appealed to the Warden. " M y record is good, W a r d e n , " he asserts, " a n d I ask you to clear me of this stigma. I t was not proved that I

P R I S O N AS AN ORGANIZED

COMMUNITY

427

took the sugar, and I ask to be given the benefit of the doubt." On crossexamination he tells this story: "Another man took the sugar. He couldn't afford to be caught. The bag was passed to me. It was found on me. I am willing to take the responsibility, but the whole thing was a joke, anyway. There was no proof that I took the sugar, and I am entitled to the benefit of the doubt." Opportunity was given the man to clear himself by divulging the name of the other convict. He declined to do so. One of the trial judges was called to review the findings. Clearly and dispassionately he covered the case. Complete proof had not been adduced, he said, but circumstantial evidence, which he sketched, laid on the defendant an overwhelming proof of guilt. He thought the verdict should stand. The prisoner appealed again and the Warden pondered. After conferring with his associates, he turned to the man at the bar. Like the big audience of convicts in the court room, the accused man waited intently. He might have been awaiting that verdict which shut him off from the world. Warden Osborne spoke sympathetically. He admitted the spirit of selfsacrifice which inspired the convict, if his story was true. But if he persisted in shielding his comrade he must be willing to bear the burden. The trial court was therefore upheld and the sentence stood. And so it went. Another convict came to the bar. This time the appeal was from the state. The man had been found guilty of fighting in his shop. He and his assailant had received the same sentence; thirty-five days' suspension from "Grade A " and Brotherhood privileges. The representative of the state appealed for a distinction in the sentences against this man for greater culpability. He was heard, and his almost tearful description of the occurrence was convincing. The judge from the trial court ably reviewed the case. The Warden's court conferred and the state's appeal was refused. Again the Brotherhood's Court was upheld. Every man in the court room was convinced that all the evidence had been weighed without prejudice. The feeling in the court room was that everything was "on the square." The feeling throughout Sing Sing Prison today is that everything is "on the square," or rapidly approaching that condition.

4. Discipline At best the human material in prison is recalcitrant. bend easily.

It does not

The criminal career tends to shape human habit in un-

social grooves, and it is a herculean task to re-direct human energy and interest into new channels, to supply new needs, new interests, new points of view. T h e old penal system does not attempt to do that.

It

accepts the criminal as he is, attempts to suppress his activities while in prison, and then returns him to the world to carry on with his past

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CRIME AND THE COMMUNITY

equipment, plus such by-products in hate and callousness as have accrued from confinement. The institution itself limits its own energies to governing the men without their consent and without their cooperation. In doing that, it builds a scheme of rule and law that, taken together, tend to suppress all natural activity on the part of the men within the prison. The reason for that lies in the disciplinary difficulties that the convict population represents. These difficulties arise from four major problems: violence, escapes, narcotics, and immorality. The way of the older prison is an attempted denial of all activity, all freedom, all easy access to other men. In suppression and isolation the old penal system seeks the means of obviating these difficulties. Measured by its achievements, the older disciplinary rule of the prison stands condemned. There is no evidence that any prison has succeeded in eliminating violence, in preventing escapes, in stopping the flow of narcotics, in suppressing immorality. No honest survey of the American penal system but leads to the conclusion that these evils flourish in all our prisons to a greater or less extent. The ingenuity of the many hundreds of men in the prison circumvents the force and the intelligence of their guardians. The men caught are punished. The others play their game until caught, or, if fortune favors them, go uncaught and unpunished. All the official rules and regulations, all the brutality, and all the cruelty merely increase hate, fear, and suspicion. There is no prison in the country that has succeeded in stamping out recurrent violence. Every such institution has its fights, its deadly assaults, its occasional murder, its more or less repeated riot and incendiary fire. The prison is like a smoldering volcano that breaks forth at unexpected moments; and in the most severely disciplined prisons the guards walk warily, for death may lurk in every shadow, violence in every hand. This was true in Sing Sing and in Auburn under the old system. It is true in every other prison. Monday mornings, after the men had been kept in their cells for twenty-four hours, there would always be a number of fights and stabbings. The frayed nerves of the men would lead them to easy anger and ready violence. An imaginary insult readily led to murder. Not all the force of the prison administration succeeded in suppressing the latent violence within the prison community. What is true of violence is true of escapes. What ingenuity has devised to prevent escapes, other ingenuity has succeeded in circumventing. The high walls, the armed guards, the perpetual counting of the men, the steel cells, the searchlights at night, whatever has been

PRISON AS AN ORGANIZED COMMUNITY

429

invented to insure safety, has everywhere upon occasion failed to prevent a man from fleeing from his guardians; and to the convicts an escaped convict is a great hero. Every man in prison dreams of the way to freedom, to life, and everywhere an occasional prisoner succeeds in making the dream come true. His success becomes a sort of vicarious fulfillment for the men confined, and usually is followed by the greatest rejoicing. T h e men howl and yell, shout and screech, rattle their doors, and bang their buckets against the floor. After a successful escape the prison is like a madhouse with a thousand raving maniacs. Here again no prison succeeds completely and finally. In spite of the severe punishments, in spite of extra sentences, in spite of all the force and rule, an occasional escape does occur in every prison. What is true of violence and escapes is true also of narcotics. T h e prison community harbors within its gates a number of men addicted to drugs. Many of these have brought the habit with them. In addition, the monotonous life within the prison, the drab meaningless existence, leads others to acquire the habit. While the men within the prison are ordinarily denied the possession of money—although this is almost never successfully eliminated—their friends on the outside may, and frequently do, have the means to supply their most urgent needs. And so every prison administration is forced to keep constant vigil against a flow of drugs that seeps in by a thousand different channels. Drugs come into the prison fastened to the soles of new prisoners' shoes by strips of plaster, they come in hollowed-out Bibles, in the binding of books, in emptied and refilled tubes of tooth paste, under stamps, they are nailed under trucks that deliver coal or bring supplies, they are thrown over the walls, sewed into the clothing of arriving prisoners, brought in by guards, and at least upon one occasion a drug was sold b y the prison doctor at Blackwells Island Penitentiary, who when caught in 1915 was sentenced to Sing Sing prison. The ingenuity of men is taxed to find means of supplying the needs of those who crave the drug. I t is a simple statement of fact that these drugs find their way into every prison in lesser or greater amounts. No suppression, no watchfulness, no terror, has so far succeeded in completely ridding the prisons of this evil. J u s t as in the case of drugs, so in the case of immorality. There is not a prison in the country that is free from that phenomenon. Every prison has its perverts who ply their trade for profit—an extra bit of food, some little bit of sweets, a pack of tobacco. Any one of the little things that mean so much to the prisoners may, and does, become the

430

CRIME AND THE COMMUNITY

means of satiating a perverted lust. The younger prisoners in all prisons become subject to amorous attentions, become the cause of jealousies, and occasionally of open warfare between prisoners. These are simple facts, known to all who are acquainted with the problems of penal administration. The unnatural life led by the prisoners stimulates unnatural practices. The prison administration, even where it attempts to suppress these evils (and it does not always do so), ordinarily fails. No amount of watching, no amount of punishment, is sufficient to wipe these practices from the prison completely. It must be clear to the thoughtful reader that these various problems did not disappear from Sing Sing. The prison, even under the new administration, had all these difficulties to deal with, as was shown by the cases that came before the inmate courts. It is a matter of grave doubt whether it is possible for any conceivable penal system to cleanse itself entirely. Sing Sing had its fights, its assaults, its narcotic smuggling, its cases of sodomy. That is true as a matter of simple record. Given the habits of life that some of the criminals herded in the prison bring with them, it is too much to expect a simple change in administration to work a miracle in human conduct. While it is true that the evils persisted, a revolutionary change had been effected in the methods of dealing with them. Under the old system the entire population was suppressed in an attempt to prevent the individual from breaking the rules. Under the community organization that developed in Sing Sing and Auburn, the individual was punished for his misbehavior without repression of the ordinary activities of the mass of the prison population. Under the old system the entire population is subjected to a rigid control for the sake of preventing the least stable elements in the population from breaking loose. Under the new system the individual was punished according to his deserts, without the dehumanizing of all the convicts in the process. A more significant change, however, was the machinery that was developed in dealing with the individual evil-doer. Instead of a situation where each case of discipline was an incident in the conflict between the prisoners and the warden, the prison community took the burden of discipline into its own hands. This change, as we have already seen, led to a profoundly different attitude on the part of the prison community towards the evil-doer. It led also to a reduction in the number of violations of the rules, because many rules essential in an atmosphere of suppression disappeared. While the new life gave outlets for energy and activity in normal channels and lessened the burden of

PRISON AS AN ORGANIZED COMMUNITY

431

irritation and consequent conflict, what is important is the proof that it is not an essential of prison administration to suppress an entire population for the sake of dealing with the individual offender. It was also shown that these cases of individual discipline could be used as instruments of education for the entire prison community, both as a lesson in public morals and as a lesson in public administration. The inescapable evils of the prison were thus turned to good ends instead of merely serving to increase the seething discontent that always prevails in a suppressed prison community.

5. The Changed Point of View That the change in administration did as a matter of fact result in a changed point of view toward violations of prison rules on the part of the inmates has already been indicated. It may not be out of place, however, to give a few striking examples of just what this change implied. In Sing Sing, in one case when a man escaped, the Sergeant-atArms was the one who ran to the Warden and asked that the prison siren be blown. Later, after the excitement was over, he puzzled to the Warden, and asked: " I s is true, Warden, that I asked you to blow the siren ? " When told that it was, he said: "What in the world has come over me anyway ? I would never have believed it possible that I should want to bring an escaping prisoner back." In another case the executive board offered a reward of a hundred dollars for the recapture of the man. In still another, fifteen prisoners, some of them lifers, asked and were given permission to go out with the guards to help find the prisoner. When he was brought back the prison rang with cheers. I t was felt necessary to lock the man up to prevent his being beaten up by the irate prisoners who felt that this man, for his own selfish ends, had endangered the rights of the entire community. In Auburn prison in September 1 9 1 5 a half-dozen prisoners manned the walls at night so that the guards could go home, and kept prisoners who had hidden out from getting over the walls. They did that for three nights in succession. One of the prisoners, in writing about it, said, "We were pretty tired but are glad we done the job." In the case of dope, an attempt was made to clean both Auburn and Sing Sing. The men realized that doped prisoners would make trouble. They knew how and by whom the dope was brought in. A little warning here and there, a threat of exposure, and deliberate searching of the right prisoners,—and their action proved more effective than all

432

CRIME A N D THE COMMUNITY

the work of the prison officials. In one case, three Sing Sing prisoners held up and searched a guard and took three bottles of whisky from him. They did not inform the Warden as to who the guard was, but told him that they had given him a warning. The warning did not prove effective, and later the Warden discharged him. In their attack upon immorality, the prisoners in Sing Sing, in addition to the various athletic activities, in addition to watching over the younger prisoners and attempting to safeguard them, developed a swimming pool inside the walls from water drawn from the Hudson River, where as many as four hundred men could dive and bathe daily. The general theory was that strenuous exercise and physical health would reduce morbidity and vice. An equally interesting example was the attitude towards theft. When a prisoner picked the pocket of a visitor in Auburn, the prisoners succeeded in securing a return of the money within three hours after it was taken, and later in securing a public confession from the man and an apology for his conduct on the ground that it was a discredit to the prison community to have such an occurrence take place. A similar incident in Sing Sing led to similar results. In this case Osborne had promised the man immunity if he would confess. But here the prisoners objected, and there was a good deal of discussion by the executive board as to whether it was " r i g h t " to let the man go unpunished. The ethics of the matter literally split the prison community between those who wished the man punished because he had brought discredit upon Sing Sing, and those who believed that the Warden's word ought to be kept and the man let go. The prisoner's place became so uncomfortable that he asked to be transferred to another prison. In one case where three men in Sing Sing were found drunk the Warden received a petition from eighteen prisoners to the effect that something drastic had better be done because the "enemies of the League were becoming too bold." As Osborne said, the whisky drinking was not new, the dope was not new, the fighting was not new. What was new was the attitude of the prisoners in the face of these happenings. It was not the evils that were important; the use to which these evils were put was important. This chapter may close with a quotation from Osborne: Under the new system, a breach of the peace had become a violation of the prisoners' own rules; and they had become the law-enforcers. It was their duty to preserve order—to secure good discipline. As a consequence, public opinion in the prison no longer sympathized with the law-breaker; he was discredited, for he was endangering not only his own privileges but the privileges of the

PRISON AS A N ORGANIZED

COMMUNITY

433

whole prison c o m m u n i t y . T h e s e criminals were actually learning obedience to law, b y practicing i t ; and insisting that everyone should obey. T h e best test of the system came, therefore, not when everything was running smoothly, but when it was not. If the Sing Sing prisoners were so good that none ever disobeyed the rules, then the millennium had indeed arrived in that favored spot. B u t the millennium and the present state of human conduct are not corresponding terms, even outside a prison. W h e n no violations of the rules were coming to the surface, then I felt like asking Figaro's immortal question:

"Who

is it that is being fooled here ? " Consequently when offenders were duly haled before the court in Sing Sing, I w a s satisfied that the law-enforcing machinery of the community w a s working ; not perfectly, of c o u r s e — n o use to expect perfection, but with reasonable and satisfactory efficiency. Such incidents were only evidence of the natural workings of the law-enforcing machinery of the c o m m u n i t y ; they offered no serious obstacles to progress. T h e important question was whether there were a n y deep-seated causes of corruption which tended to make the machinery unfair or seriously imperfect in its working. T o say that there were such, is to say that not only was the Sing Sing community Sing Sing, but it was human. This

system

of p e n a l

administration

has not

developed

in

other

p r i s o n s a n d h a s b e e n d e s t r o y e d c o m p l e t e l y in A u b u r n a n d P o r t s m o u t h N a v a l P r i s o n ; in S i n g S i n g a l o n e is t h e r e a r e m n a n t of t h e i n s t i t u t i o n developed by Osborne.

T h e h o s t i l i t y of t h e w a r d e n s , t h e i n d i f f e r e n c e of

t h e p u b l i c , a n d t h e i n g r a i n e d b e l i e f t h a t e x t e r n a l d i s c i p l i n e is t h e s a f e s t road to reformation are largely responsible. the

Norfolk

Prison

Colony

m a n a g e m e n t of H o w a r d

In only one new prison,

in M a s s a c h u s e t t s ,

developed

under

the

B . Gill, w a s there inaugurated a system

of

p e n a l a d m i n i s t r a t i o n t h a t r e f l e c t e d t h e w o r k of T h o m a s M o t t O s b o r n e and that had, both as a method and an objective, co-operation

with

t h e i n m a t e s a n d t h e i r p a r t i c i p a t i o n in t h e o r g a n i z e d l i f e of t h e p r i s o n community. BIBLIOGRAPHY

The Annals of the American Academy of Political and Social Science. "Prisons of Tomorrow." Vol. 157 (September, 1931). CHAMBERLAIN, RUDOLPH W. There is No Truce. The Macmillan Company, New York, 1935. LIEPMANN, C. M. Die Selbstverwaltung der Gefangenen. Bernsheimer, Mannheim. 1928. OSBORNE, THOMAS MOTT. Prisons and Common Sense. J. B. Lippincott Co., Philadelphia, 1924. Society and Prisons. Yale University Press, 1916. TANNENBAUM, FRANK. Osborne 0} Sing Sing. The University of North Carolina Press, Chapel Hill, 1933. Wall Shadows. G. P. Putnam's Sons, New York, 1922.

CHAPTER

X V I I I • Parole

In spite of its persistence and universality, imprisonment for crime has left a bad taste behind it. All through the last century there were more or less effective protests against the abuses that have so frequently accompanied confinement for crime. The protests have generally taken the form of pleas for greater leniency, more humane methods of treatment in prison; but they have also sought an alternative to imprisonment itself. Parole attempts to achieve protection for society without surrendering control over the person convicted of crime. It is in effect a recognition of the deteriorating effect of imprisonment. I t attempts to solve the perplexing problem of control of the prisoner without the evil of too long confinement. The theory of parole assumes that a prisoner ought to be released when he is ready for a return to society. It also assumes that the prison experience is a cleansing and reformatory process which gradually leads up to that change in the individual which makes it possible for the state to turn the convict loose before his time, because to keep him longer would serve neither the ends of the prisoner involved nor those of society. This view may be true under an ideal penal system that operates as an educational institution which has discovered the secret of changing human habits. No such institution has been developed, however, and the prisons are substantially what they have been for over a century— prisons. Parole, therefore, is really an attempt to mitigate the evil consequence of further confinement. In essence, it is a compromise with the older notion that the way with the criminal is confinement in one of our prisons—and, as has already been said, confinement in our prisons is almost entirely corroding in its consequence. Parole is important as a social technique because, in effect, it recognizes the failure of the penal method. If sufficiently developed, it would reduce imprisonment to a temporary instrument used only until paroling of the prisoner had been worked out satisfactorily. If fully developed, it would ultimately make parole approximate probation as a technique. The exception would occur where it was shown that for some specific individual the prison did provide an opportunity for improvement in health, technical competence, or morale. That is, if the theory of parole were carried to its logical conclusion, the prison would be reduced to a

PAROLE

435

therapeutic institution for specific individuals. If this is not true, then parole rests upon false bases. It rests on convenience and lowered costs, or, as has often been the case in practice, it is one way of avoiding overcrowding in prisons. If the men are to be paroled before their time, why should they be sent to prison at all ? And if the prison is evil in its consequence, is it very much better to hold men for the minimum rather than the maximum period of their sentence ? T h e paroling of men in prison before the completion of their maximum sentences is, therefore, an effort to cut short the evil influence which confinement, in American experience, is known to have. In that sense at least, it is a deliberate repudiation of the prison technique. It is a public declaration that the less prison experience the better. It is one way of saying that the community can do better by its convicted criminals if it can find a way of supervising them outside prison walls. But the fact that the prison is still used as a means of punishment and reform reveals a conflict in both attitude and method. If the parole system does what its friends assert that it d o e s — m a k e more successful and effective supervision possible—, then the prison is merely a vestige. The fact that over fifty per cent of all men released from prison are now released on parole shows that the method is in substantial use. Of course the men would ultimately be released anyway, a few months or a few years later. Parole provides a further means of supervision after the man is out, and provides some means of aid and guidance which is otherwise absent. Used merely as a means of continuing supervision, the system of parole is burdened by the fact that it has no ways of contributing to that change in the prison regime which would make parole a satisfactory instrument for refitting the released prisoner into our complex world. If the parole procedure were taken at its face value, it would become the only method of releasing men from prison. N o man could be released unless he were subjected for a longer or shorter period to effective guidance. But such broadening of the parole method would very quickly force to the front the issue between the purpose of the parole board and the ways of the prison. If the parolee is a failure, the burden of proof is thrown upon the board. It might better be thrown upon the prison itself. The parole board would have a very real grievance against our penal institutions if it found that the ways of the prison were such as to make later rehabilitation difficult or impossible. Parole would also have the effect of focusing attention for the first time upon the crucial test of the prison experience, namely, the contribution it makes to a satisfactory adjustment after release. The prison experience

436

CRIME AND THE COMMUNITY

would become, therefore, subordinate to the paroling o n e — t h e question always being, how well is the particular individual being trained for his release ? And in the end it would make the prison experience for the men who are ultimately to be released a very different and possibly a very much shorter experience than it is at present. T h e parole idea, if it ever gets fully developed as a social instrument for dealing with the convicted and to-be-released criminal, will in the end prove a revolutionary way of dealing, not merely with the prisoner, but with the prison. In the end, also, it will have (as is evidenced by the increasing use of the indeterminate sentence) some effect upon the court itself and upon the amount of responsibility the court is willing to assume for the specific length of a man's sentence. With these preliminary remarks, we may now turn to a consideration of the actual paroling procedure.

1. Methods

of Releasing

Prisoners

Parole may be defined as a method by which prisoners who have served portions of their sentences are released from penal institutions under the continued custody of the state upon conditions which permit their reincarceration in the event of misbehavior. It is to be distinguished from probation, which like parole provides for freedom under supervision, but which, unlike parole, is granted before rather than after a period of imprisonment. It is to be distinguished also from pardon, which, unlike parole, affords a restoration of citizenship and complete freedom under no supervision, without the right of reimprisonment. Most prisoners must be released at one time or another. A few convicts, it is true, are hanged or electrocuted. But society will permit this only in the case of one or two extremely serious offenses. A few are held in confinement until they die. But sentences long enough to have this result are rarely imposed. Most prisoners walk out into the world again, to their families, to their friends, to their work, and, perhaps, to their careers of crime. Social security necessitates their confinement under the watch of armed guards within stone walls and iron bars on Monday. On Tuesday they are at large in the community. If the limitations of parole are not imposed upon them, under what conditions are they released ? Suppose the prisoner is held to serve the last day of the period exacted of him by law. He must then be released. He may be a feeble-minded, epileptic, or psychopathic offender. He may be a habitual or a professional criminal. Still he goes out, an almost inevitable menace to the

437

PAROLE

peace of the community. H e goes out with the feeling that he has paid his debts to society in full, that he must proceed at once to levy tribute on his fellows for the time he has lost. H e goes out without w o r k , without a home, perhaps without friends to help him.

If he m a k e s for

himself a useful place in the life of the community, it is little less than miraculous. Suppose the prisoner has been released under the operation of an automatic time allowance for good conduct within the institution. Here, again, society is guaranteed no adequate protection, for it is the universal testimony of penal administrators that the criminals most dangerous to society invariably maintain the best of prison records.

Under

the mechanical operation of the commutation measure, release must be given before the prisoner's whole term has been served.

T h e r e is no

possibility of exacting from the more dangerous men that greater period of confinement which m a y be required under the system of parole. T h e r e is but one other means b y which prisoners are regularly returned to society. T h a t is b y the exercise of executive clemency.

The

governor's pardon, however, carries with it the implication of innocence, or society's forgiveness for the offense which has been committed. T h e r e fore it should never be used as a regular process, applicable to every prisoner. These are the alternatives to parole. If a convict be pardoned, if he be released under the operation of the " g o o d t i m e " statute, or if he be held to serve his whole term and then turned loose, he goes out a free man. T h e state has surrendered its power of further supervision over the activities of a man who, until yesterday, was housed behind bars as a menace to society. Unless we are to extend greatly our use of capital punishment and life imprisonment, we must choose one of these four methods of release; and the' most desirable is parole.

T h a t parole as

a method of releasing prisoners is constantly being more widely used is evidenced b y the following table. PER C E N T

OF D I S C H A R G E D PRISONERS R E L E A S E D BY

PAROLE

192 6

44-4

1930

192 7

46.0

1931

47-5 50.6

192 8

45-5

1932

50-6

192 9

45-3

1933

50-4

Parole is, in fact, the principal means b y which release from imprisonment is granted in the United States. Of the 69,022 prisoners w h o were set free b y prisons and reformatories in the United States in 1933, only

438

CRIME

AND

THE

COMMUNITY

37.7 per cent had been held to the expiration of their full sentences, 50.4 per cent were paroled, and 1 1 . 9 per cent were released by all other means. All the States in the Union with the exception of Florida, 1 Mississippi, and Virginia, 2 provide for the release of prisoners on parole. Some states rely very heavily on this method of granting prisoners their freedom, as is evident from the following table. PRISONERS RELEASED ON PAROLE IN 1 9 3 0 , SHOWING P E R C E N T OF TOTAL DISCHARGED New Jersey

59

Illinois

78

Pennsylvania

66

Massachusetts

83

California Michigan Ohio

69 71 72.3

New York Indiana Washington

85 86 91.4

2. The Nature of Parole Parole is not leniency. On the contrary, parole really increases the state's period of control. It adds to the period of imprisonment a further period involving months or even years of supervision during which the offender may be reimprisoned without the formality of judicial process. In addition to this, the records in nearly every state where information is available reveal that the application of the parole system had lengthened the time served by the convict within prison walls.® In 1 9 3 1 and 1932, the average time served by all prisoners who finished their terms and were released by expiration was 22.0 months, while the average length served by all persons who had been released under parole was 25.8 months.4 Parole, then, does not operate as a favor to the criminal. Its chief merit, in fact, is that it offers society a far greater measure of protection against him than any other means of release which has yet been devised. 1 Florida has developed a system of granting conditional pardons which is very much like parole. 2 A commission has recommended the adoption of the parole system by Virginia. See Report of the Commission to Study Prison Sentences etc., House Document No. 37, J a n u a r y , 1934. ' S e e the following: A. W. Butler, American Prison Association Proceedings, 1910, p. 276; Illinois Crime Survey, Chapter X I , p. 448; Wilcox, The Parole of Adults (see bibliography at end of chapter), p. 32 i. But compare George Thomas and A. L. Jensen, A Study of Indeterminate Sentence, Probation, and Parole in Utah, University of Utah Bulletin Vol. 21, No. 7 ( 1 9 3 1 ) , p. 69. 'United States Bureau of the Census, Prisoners in State and Federal Prisons and Reformatories, 1 9 3 1 - 1 9 3 2 , p. 34.

PAROLE

439

A properly administered system of parole aims to insure society against a renewal of criminal activity by the scores of convicts who are being released daily from our penal institutions. Under such a system, the prisoner will not be released until the authorities have been assured that work will be provided him by a reputable employer. After his release he will be required to report periodically to a designated official, stating in considerable detail the work he has done, the money he has earned, the money he has spent, the money he has saved, the manner in which his leisure hours have been occupied, and so on. Certain conditions will be imposed upon him. He will not be allowed to engage in certain types of activity. He will not be allowed to associate with certain people, to visit certain areas. Numerous other restrictions will be placed upon his daily conduct. The state will see to it that he observes these conditions. An agent will visit his home and discover whether he is providing for his family. His employer may be interviewed to determine whether he is constantly on the job. Other contacts will be made in the community for information on his general behavior. The parolee will find himself continuously under the eye of the state. Society need not wait until he is convicted for the commission of another crime in order to lock him up again. The slightest deviation from the straight and narrow path will bring him back within prison walls. Parole is more than a method of punishment, it is a method of prevention. Advocates of parole generally believe that every convict who emerges from a prison should be compelled to serve for a certain period under these conditions. The idea that parole should be given to good prisoners and refused absolutely in more serious cases arises from the mistaken notion that it is nothing more than a form of leniency. Many states, in fact, have so designed their laws that a period of parole must be served in all cases. In Massachusetts, for instance, all prisoners are sentenced for indefinite terms, both the maximum and minimum of which are set by the court. The board of parole may release any prisoner when he has served two-thirds of his minimum term. This right is exercised in about one-quarter of the cases which come up for consideration. But the law further provides that the board must release at the minimum and hold on parole until the maximum every prisoner who has behaved himself within the institution. In this way the state makes sure that convicts shall not leave its prisons without a further period during which their conduct is subject to definite social control. In 1932 the Federal government amended its parole law to provide that all prisoners, even those who were automatically released upon the expiration of their

440

CRIME AND THE COMMUNITY

minimum sentences and without receiving any consideration from the Parole Board, should be released under supervision. This means that all Federal prisoners, regardless of whether they have their minimum sentences cut by action of the Parole Board or not, must, upon release, subject themselves to the control of the agents of the Federal Parole Board. Parole, however, is not merely a detective measure. It does involve, to be sure, the somewhat negative activity of watchful waiting, of receiving reports, of enforcing the conditions under which liberty has been granted. But it involves far more than that. Good parole work should be a positively constructive process of social rehabilitation. It should help the individual to find a place in the community, a place which will entitle him to respect himself and to be respected by others, a place which will enable him to make the most of himself and to discharge his responsibilities to those dependent upon him and to the community as a whole. The accomplishment of this purpose requires a continuous process of guidance and of friendly assistance. The parolee must be encouraged to continue the education which he began in the institution. The prisoner must be protected against the community quite as much as the community against the prisoner. Each must be made to understand the other if the prisoner is to be re-established in the society against which he has offended. The released convict is usually given five or ten dollars, a suit of prison-made clothes, and a railway ticket to his home. Beyond these, he has few resources. His community contacts have been broken. He is met with suspicion and distrust. Even though he may desire to find work, to live an honest life, it is no simple matter for him to do so. At his moment of release, as at no other, he needs a friend, and society needs the assurance that he will not revert to criminal activity. This is the time when careful parole supervision must seek to accomplish his satisfactory readjustment. Parole avoids the peril which inheres in the otherwise abrupt transition from the prison to the outer world. It enables the state to complete the work of reformation which it has begun within the institution. It is a continuation of the educational process which should be initiated when the convict is admitted to the prison. It is the concluding phase of the program which is demanded by the modern philosophy of penal treatment. From the day of his reception, the prison will advance the convict from greater to lesser restriction, from maximum to minimum security, gradually approaching the conditions of free life. From the iron discipline of the fortress to the greater initiative and responsibility

PAROLE

441

of the barracks, the camp, or the cottage outside the walls ; from this minimum detention to parole ; from parole to freedom—these are transitions which may be made with increasing prospects of success. By parole the prison's work of education may be tested as it cannot be tested within the walls. By parole the prison may carry the process of social reconstruction through to its necessary conclusion. T I M E A PRISONER M U S T SERVE IN DIFFERENT STATES TO BE ELIGIBLE FOR PAROLE Minimum

Time Served

States Having Such Parole Laws

T w o thirds of the m a x i m u m sentence One half of the m a x i m u m sentence T h e m i n i m u m sentence .

.

Three m o n t h s before the minimum sentence expires One year At any time subject to the rules of t h e B o a r d of P a r dons

N e w Jersey

I

Connecticut, Delaware, Kentucky, Minnesota, M o n t a n a , Rhode Island, South Dakota, Wisconsin Alabama, Arizona, Arkansas, Colorado, Georgia, Idaho, Illinois, Indiana, Kansas, Maine, Massachusetts, Michigan, New Hampshire, New Mexico, New York, N o r t h Dakota, Ohio, Oregon, South Carolina, Tennessee, Washington, West Virginia, Wyoming Pennsylvania

California, Louisiana, Nevada Iowa, M a r y l a n d , Missouri, Nebraska, N o r t h Carolina, Oklahoma, Texas, Utah, Vermont . T o t a l number of states

3. Prerequisites

Number of States

of Good

8

I

3 9 45

Parole

But before the parole system can achieve the objectives we have set out for it, a number of prerequisites must be fulfilled. In the first place, let it be emphasized that no satisfactory parole system can be developed unless the prison system is so reorganized as to convert it into an educational institution. It is useless to demand that the Parole Board succeed in rehabilitating men released from prison when the prison experience itself—as is almost universally testified—has increased the individual's personal handicaps for readjustment to normal life. The deterioration consequent upon confinement in prisons is one of the great handicaps, perhaps the greatest, that the Parole Board has to overcome. The development of poor habits of industry and perverted sex habits,

442

CRIME AND THE COMMUNITY

the loss of self-respect, the annihilation of personal incentive, the accumulation of bitterness, the loss of health, the coarsening of the entire personality, become additional handicaps for the Parole Board in its effort to fit the released man back into a world from which he was torn because of his inability to survive in it under the ordinary demands of social existence. B u t even if all these effects of the prison could be met, there still remains the problem of selection for release. In most states a prisoner is eligible for parole at the expiration of his minimum sentence or sometime thereafter. In nine states a man may be paroled any time after he begins serving his sentence. T h e table above, adapted from the Thomas and Jensen study of parole, shows the variations in the time element for parole eligibility among the states having parole laws. 1 T h e paroling authorities, therefore, have considerable discretion in releasing prisoners, the exercise of which is fraught with serious consequences for society. Some prisoners may safely be entrusted with their provisional liberty. Others require the steel and stone of institutional confinement. One would expect that careful studies of individual prisoners would precede decisions as to release or further confinement. Such studies are not made in most American jurisdictions. Wilcox's presentation of parole practice brings this out very clearly. How are prisoners actually selected for parole in the American states today ? The simplest thing, of course, is to release nobody or everybody. A few paroling authorities pursue the policy of refusing nearly all applications for parole. Such action is tantamount to a repeal of the parole statute and imperils social security by engendering ill will among prisoners and then releasing them without supervision or the right of reincarceration. Other parole boards release everybody at the earliest possible moment. Here the parole law becomes an automatic reduction of all sentences, a thing which is even worse, perhaps, because it gives liberty without reference to fitness for liberty and reduces the period during which stone and steel guarantee society protection from those who endanger its peace. This policy is sometimes adopted because of the inadequacy of a State's penal equipment. Parole is used as a means of turning men out of cells to make room for others who are crowding in from the courts. Where legislatures refuse to appropriate adequate funds for correctional institutions, penal officials can scarcely be criticized for attempting to meet their problem in this rather desperate way. The obvious remedy for the abuse here is not the revision of the parole law but rather the provision of a more nearly adequate penal plant. 1

Thomas and Jensen, op. cit., p. 37.

PAROLE

443

Those parole boards which do not choose t o release everybody or nobody must a t t e m p t to separate the sheep from the g o a t s ; to liberate certain prisoners and hold others. T h e r e are certain factors which generally influence this decision. Of these, prison conduct is usually given greatest weight. In many places those who behave well in prison are freed almost automatically when their time comes. T h i s is all very well in encouraging good discipline in prison, but it may have very little to do with t h e f u t u r e security of t h e community, since the greatest rascal in the world may be able to walk the line for a few brief months if he knows that such action will speed his return to his pals and his mischief, while m a n y a stupid youngster who could be released with perfect safety m a y be held for an undue length of time merely because he has proved troublesome to the guards. Another factor generally considered is the n a t u r e of the crime for which the prisoner was committed. Some parole boards are particularly severe with those who have been guilty of this or that certain crime, without reference to t h e facts entering into the individual case. Such a general rule simplifies parole procedure but, it m a y be feared, at the expense of good judgment. For there is no necessary connection between the title of the crime committed and the degree of safety with which the particular individual guilty of it may again be turned into the community. Parole boards almost invariably announce t h a t they do not retry the case at the time of parole, and just as invariably they do that very thing. T h e difference is t h a t their review of the case is hasty, without attorneys or witnesses or any a d e q u a t e consideration of the evidence. While the law has thrown all sorts of safeguards about the manner in which a man may be committed t o prison in an original trial, it is still possible that his time of imprisonment may be unduly shortened or extended far beyond the average by the haphazard and even capricious action of a board of parole. A third item which generally has weight with paroling authorities is the prior criminal record of the applicant for parole. Usually they guess that the old offender is a poor parole risk. And it is probable that they are usually right. But it does not follow at all t h a t t h e so-called first offender is a good parole risk. H e m a y not really be a first offender at all. And if he is, he may be a very unsafe man to release. But boards of parole are nevertheless turning men into the streets every day on this basis alone. T h e only other factor generally entering into parole decisions is the appearance, personality, or general demeanor of the applicant. Truthfulness, square shoulders, a good voice, or a steady eye may go far toward winning a scoundrel his freedom in more than one state. Members of parole boards are human, like the rest of us, and are often inclined to congratulate themselves on their ability to read character a t a glance. And so, shrewd but experimental guesswork, prejudices, and hunches many times decide whether a boy is to spend another two or three years behind prison walls or to be allowed to circulate among us.

444

C R I M E AND THE C O M M U N I T Y

It seems reasonable to conclude that the unsupported guess of a board of parole forms a shaky foundation upon which to return forgers, blackmailers, and thieves to the community.1 The superficial character of the selective process is further brought out by the following account of a parole board in a Mid-Western state. The practice of the board is to spend part of two days at the prison, arriving one day and departing the next. On the occasion of my visit the board spent four hours in the evening—from 8:25 to 12:25—disposing of parole cases. Ninety-five offenders eligible for parole came before it in those four hours. The board not only studied the information presented to it about the offenders, but saw each offender and made a decision for or against parole. If a man was up for first parole hearing, the board had learned nothing about his case in advance, no summary of his record having been sent to members before the hearing; all their information concerning the new case, therefore, was gained at the hearing. In reaching 95 decisions in four hours, the board gave just two and a half minutes to each case—and this included studying the docket, interviewing the man, and deciding whether to grant parole or not; nor does the two and a half minutes make allowance for the time wasted by the entry and exit of the prisoners and in other ways.2 Superficial and careless methods of release on parole are due in the first instance to the character of the paroling authorities. Only five states and the Federal government have full-time parole boards. In twenty states the Governor, with or without the advice of an advisory board of pardons and paroles, decides upon the issuance of paroles. In the rest of the states paroles are handled by ex-officio and part-time boards of prison commissioners, welfare departments, and Boards of Pardons and Paroles. In most states, therefore, the issuance of paroles is a part-time activity. It is one among many functions which a governor or an ex-officio board or a Welfare Department must perform. Too much time cannot be spent upon parole work, because there is always a continuous pressure of other duties. It is not surprising, therefore, that most of the work is entrusted to clerks, meetings are hurried through, and there is a general desire to get the business done quickly. Thus "hasty and ill-considered decisions are made which involve years of servitude, human misery, human happiness and even life and death." 3 ' C l a i r Wilcox, " P a r o l e ; Principles and Practice," pp. 348-349, in Journal Law and Criminology, V o l . 20 ( 1 9 2 9 - 1 9 3 0 ) , pp. 345-354.

of

2 N a t i o n a l Commission on L a w Observance and Enforcement, Report on Penal tions, Probation and Parole, N o . 9, pp. 306-307. Washington. D. C.. 1531. 3Wilcox,

op. cit., p. 350.

Criminal Institu-

445

PAROLE

4. Politics and Parole T h e failure to provide independent, competent parole boards in many states has led inevitably to the use of political influence and corruption to obtain the early release on parole of dangerous offenders. Under the Tammany regime in New York it was possible for an influential gangster, Joe Rao, temporarily confined in Blackwell's Island Penitentiary, to have a good deal to say as to who was to be released from the institution. T o picture Rao's position, Dr. Louis Berg, then the jail physician, quotes the interview of Mr. Harry Schulman with the New York Evening Post, January 25, 1934, after the prison officials reassumed control. I personally saw Warden M c C a n n spend a half hour on one of his busy days, getting a lot of lemons for Rao in order that Rao might have lemonade. I have been in Warden McCann's office when Joe Rao came in and I have seen the warden hand Rao a list containing the marks given to prisoners b y the parole board and ask Rao if they were satisfactory.

Rao, in this instance,

marched out with the list, looking very sour and glum. T h e warden called after him, " H e y , what's the idea of walking out like t h a t ? " and Rao came back with the list and pointed out that some of the men whom he had recommended for parole before Christmas or what he called " t h e Christmas b r e a k " would not get out until March. He was obviously dissatisfied. 1

W e have seen in the chapters on the administration of criminal justice with what difficulty convictions are obtained. Money and political influence present almost insuperable obstacles to putting offenders behind the bars. If by some fortunate concatenation of events an offender is finally convicted and sent to prison, he does not lose hope of regaining his liberty. The same forces and influences which protected the criminal in his depredations will reach into the prison and secure his liberation on parole. The offender may have been sent to prison in the first instance because the public clamor aroused by the crime made it impossible to " f i x " the case. But the public soon forgets, and a conviction obtained with a blaze of publicity will be followed by the quiet grant of a release on parole. T h e famous parole authorities of Oklahoma and Texas, Governor " A l falfa B i l l " Murray and Governor " M a " Ferguson, provided instances of wholesale release of dangerous offenders on parole. In the three years of Governor Murray's term, 1931-1934, three hundred and seventy1

L o u i s Berg, Revelations

oj a Prison

Doctor,

pp. 1 1 1 - 1 1 2 . N e w Y o r k , 1934.

446

CRIME AND THE

COMMUNITY

five c o n v i c t s s e r v i n g t e r m s f o r b u r g l a r y w e r e f r e e d , t h r e e h u n d r e d a n d s e v e n t e e n f o r r o b b e r y , a n d c l e m e n c y w a s p r o v i d e d in t h r e e

hundred

and

murder.

fifty-six

c a s e s w h e r e t h e c o n v i c t s h a d b e e n c o n v i c t e d of

" D u r i n g the two years which ended with J a n u a r y 15, 1935, M r s . Ferg u s o n ' s a c t s of c l e m e n c y r e a c h e d a g r a n d t o t a l of

5142.

A m o n g the m o s t notorious beneficiaries of this policy of free

and

e a s y releases to d a n g e r o u s offenders are the B a r r o w b r o t h e r s : Consider a y o u n g man w h o w a s first arrested as E l v i n W i l l i a m s at W a c o , T e x a s , in 1930. T h e charge w a s burglary and he w a s sentenced to fourteen y e a r s in the penitentiary. H o w e v e r , after spending a short time in the county jail, he decided he didn't like it, and escaped. Seven d a y s later, he w a s captured by the police of Middletown, Ohio, and sent b a c k to T e x a s , where this time he really went to prison, but not to remain. T h e jail break evidently w a s regarded as y o u t h f u l exuberance.

H e served only t w o y e a r s of the fourteen

y e a r s e n t e n c e — t h e n went free on a parole. T h i s y o u n g m a n had a brother named M a r v i n .

In J a n u a r y , 1930, this

brother was sent to prison for four years on a charge of burglary.

A month

later h e escaped and remained free until December, 1 9 3 1 , w h e n heartless officers recaptured him and put him back in a cell. B u t in one y e a r a n d three months he too was " o n the street," his papers carrying the n o t a t i o n :

" G r a n t e d full

pardon b y Governor, M a r c h 23, 1933." T h e b o y s got together in a concerted celebration of their easy liberty.

For

more than a y e a r , their names were on the first pages of every newspaper. N o w known as the infamous Barrow Brothers, they robbed, pillaged and murd e r e d ; they shot down unarmed citizens, machine-gunned sheriffs and slew policemen from ambush.

T h e y robbed a Government arsenal, they even at-

t a c k e d a prison farm with automatic rifles and freed five convicts. Finally the B a r r o w Brothers were killed, to make a total of nine lives which must be charged to a pardon and a parole, plus a chase which had cost tens upon tens of thousands of dollars. T h i s makes interesting reading of a notation in a recent parole report:

" T h e estimate for supervising a parolee is $46.81 a y e a r , as

compared with $435.19 for maintaining him in p r i s o n . " 2 T h e B a r r o w s a r e n o t t h e o n l y i n s t a n c e s of d a n g e r o u s o f f e n d e r s released on parole.

F r a n k N a s h , t h e n o t o r i o u s b a n k r o b b e r , k i l l e d in t h e

K a n s a s C i t y massacre when his fellow bandits tried to t a k e him a w a y f r o m F e d e r a l agents, h a d been paroled twice, o n c e on a m u r d e r c h a r g e and once for b a n k robbery.

A n o t h e r c a s e in p o i n t is t h a t of

Harry

D a n i e l M o r r i s , a professional crook operating throughout the W e s t . C o u r t n e y R y l e y Cooper, Ten Thousand

2 Cooper, op. cit., pp. 343-344-

Public

Enemies,

p. 341. Boston, 1935.

447

PAROLE

H a r r y Daniel Morris w a s received at Colorado State Penitentiary, August 10, Jgig, to serve from eight to ten years for burglary. T h e n again, there is the item that four years later H . H. H a z y w e n t into I o w a State Penitentiary, there to remain for four years. Still further there comes news that in two years more H a r r y Morris was arrested in K a n s a s C i t y on a charge of forgery, and that shortly afterward Dan Morris was sentenced to Folsom Prison for a maximum of ten years for an attempted murder. T h i s seems confusing, until you learn that all of these persons are the same H a r r y Daniel Morris who went to the Colorado Prison in 1919, was paroled, went to Iowa State and was paroled again, only to violate it, then, after being returned to prison, was arrested three times in different parts of the country before the expiration of his sentence. 1

I t is c l e a r f r o m t h e f o r e g o i n g d i s c u s s i o n t h a t p a r o l e m e t h o d s

have

b e e n l a r g e l y h a p h a z a r d . T o m e e t t h i s d i f f i c u l t y a n d t o g i v e the f u n c t i o n s of t h e p a r o l e b o a r d s o m e s c i e n t i f i c b a s i s , a n a t t e m p t h a s b e e n m a d e in recent y e a r s to w o r k o u t " m o r t a l i t y " tables for parole prospects.

A

n u m b e r of s o c i o l o g i s t s a n d c r i m i n o l o g i s t s h a v e d e v o t e d a g o o d d e a l of e f f o r t t o t h i s t a s k . T h e p i o n e e r w o r k in t h e field w a s d o n e b y B u r g e s s , W a r n e r , the Gluecks, and Void.2 T h e a s s u m p t i o n u n d e r l y i n g t h e s e e f f o r t s is t h a t t h e c o m p l e x f a c t o r s w h i c h shape individual criminal careers can be isolated, that values c a n b e a s s i g n e d t o t h e m , a n d t h a t a n a v e r a g e of f a v o r a b l e a n d u n f a v o r a b l e i t e m s w h i c h u l t i m a t e l y d e t e r m i n e s u c c e s s or f a i l u r e c a n b e c o n s t r u c t e d . I f , of a l l t h e f a c t o r s c o n s i d e r e d , a g i v e n p r i s o n e r s h o w s a l a r g e n u m b e r of t h o s e t h a t in t h e m o r t a l i t y t a b l e i n d i c a t e s u c c e s s , t h e n t h e i n d i v i d u a l is s u p p o s e d t o b e a g o o d r i s k . poor risk.

I f t h e o p p o s i t e , h e is s u p p o s e d t o b e a

W h e n , h o w e v e r , one e x a m i n e s the items that go into the

m a k i n g u p of t h e m o r t a l i t y t a b l e , it b e c o m e s c l e a r t h a t — a s in t h e c a s e of B u r g e s s ' s s t u d y — t h e f a c t o r s c o n s i d e r e d a r e t h o s e t h a t b y " r u l e o f t h u m b " and common experience h a v e long been k n o w n to be indicative of p r o b a b l e s u c c e s s or f a i l u r e . volved.

O f c o u r s e , o n l y p r o b a b l e s u c c e s s is in-

F o r instance, B u r g e s s tells us that such facts as being a

first

o f f e n d e r , b o t h p a r e n t s b e i n g a l i v e , b e i n g a f a r m b o y , r e s i d i n g in his o w n c o m m u n i t y w h e n arrested, r e c o m m e n d a t i o n of leniency f r o m p r e s i d i n g ' C o o p e r , op. cit., p. 341. 2 H . Hart, "Predicting Parole Success," in Journal of Criminal Law and Criminology, Vol. X I V pp. 405 S.; Bruce, Harno, Burgess, and Landesco, Workings of the Indeterminate Sentence Law and the Parole Syztem in Illinois, chap. X X X ; S. and E. T. Glueck, "Predictability in the Administration of Criminal Justice," in Harvard Law Review, Vol. X L I I , pp. 297 ff.; S. B. Void, Prediction Methods and Parole, Minneapolis, Minn., 1931; W. F . Lane, "Parole Prediction as Science," in Journal of Criminal Law and Criminology, Vol. X X V I , pp. 377 ff.

448

CRIME AND T H E C O M M U N I T Y

judge, possessing a regular work record, no punishment in prison, average intelligence, favorable psychiatric prognosis, taken together, are indicative of a high degree of probable success on parole. If, on the other hand, the prisoner under consideration is a repeated offender, a gangster, possesses no work record, etc., the probability of failure is high. All this, however, is adding little to our knowledge of the pattern of individual behavior. It has long been assumed that the prospect of satisfactory readjustment is higher for a first offender than for a professional criminal. The same is more or less true of the other individual items under consideration. What these tables prove is not that the prospects of success are greater with a given set of favorable elements in the total situation if the individual is released on parole. What they probably indicate is an error on the part of the court in committing a person of that particular type, who is likely to succeed on parole in spite of his subjection to a penal experience which increases the difficulty of adjustment later. These tables, if they have any real value, ought to be used first by the courts, so that the readily adjustable cases might, perhaps, be saved the corroding effects of confinement in a prison. But, in view of the complexity of the factors which shape the destiny of a criminal career, the " m o r t a l i t y " tables probably present an over-simplified reading of the facts. That something may be done with a "scientific" analysis of the problem is not to be denied. But the job still lies ahead of us. A more realistic use of statistical analysis of actual experience with men on parole was made by the Federal Parole Board when it reviewed its own results in 8700 cases under its immediate charge. 1 It found that the percentage of failures among prisoners released on parole while suffering from venereal diseases was twelve times greater than the normal percentage of failures. Here was a specific factor that could be isolated and dealt with; and it was, to such good effect that in a later survey the percentage of success in these cases was higher than the average. Another item of great interest revealed was that a high percentage of failures came within the first two months of release on parole. Here again was something definite, which called for the kind of treatment that a parole board can be expected to consider—emphasis of supervision and guidance during the first few months of release. Perhaps this experience of the Federal Parole Board indicates the direction which research in the problem of dealing with released prisoners ought to take. ' S a n f o r d Bates, Prisons

and Beyond,

pp. 262-263. N e w Y o r k , 1936.

PAROLE

5. Supervision

449

of Parolees

The second indispensable requisite of a good parole system is adequate supervision of parolees. Without this, parole becomes little more than a means of releasing prisoners from institutions before the expiration of their maximum terms. Parole enthusiasts continually cite figures showing that it is much more costly to keep a man in an institution than on parole. But cost is not the only factor in our penological system. Protection of socicty against dangerous offenders is even more important. Offenders in institutions cannot commit new offenses. Parolees have every occasion to revert to their former habits of crime, unless their activities are carefully supervised by parole officers who can reimprison them for breaches of parole regulations and for criminal conduct. In most states the supervisory aspects of parole are just as superficial and as lax as the selective processes. Eighteen states attempt to keep in touch with paroled persons by correspondence alone. Printed rules are announced but are not enforced. Written reports are required, but there is nobody to check the accuracy of the replies. The parole officer becomes a mere clerk of record. Men who are on parole find it easy to beat the game. They are not watched, and they know it. Parolees are seldom recommitted unless they are caught in crime. The whole paper system becomes a huge joke, and parole comes to be nothing more than a speedy manner of emptying prison cells. Seven states attempt to supplement their paper control of the parolee by requiring sponsors, employers, or "first friends" to guarantee his good conduct. But these persons are generally unknown to the paroling authorities, are in no way qualified or trained for the work which they are asked to do, and are not responsible to anybody for its proper performance. In the long run no such system of sponsorship can offer an adequate substitute for a real parole system, because mere sponsorship cannot guarantee the community the degree of security to which it is entitled. Other methods of supervision have been attempted. Sheriffs, constables, detectives, and police officials have been pressed into service. These men are generally overloaded with other work, are by no means peculiarly qualified to advise and assist the prisoner in regaining his place in society, and, finally, since they are unpaid, are generally inclined to neglect the work or to disregard it entirely. In other states parolees are required to put in a periodic appearance at an office, a perfunctory performance which assures the officer that they are on the

450

CRIME AND THE COMMUNITY

ground but does little more. Some states lean very heavily on philanthropic, religious, and welfare organizations, allowing private charity to undertake the task of parole supervision. Many of these bodies have made very creditable showings within the limits of their means, but the voluntary effort of private groups is a poor substitute for adequately staffed parole systems.

6. Parole Personnel Fourteen states have no parole officers. Thirteen states have only one officer each. Six others have but two, three, or four agents each. Even where field agents are employed, the positions are often filled by men who are not adequately qualified for the task. Little if any training is provided or required. The parole officers are almost always underpaid, and they are invariably overloaded with work. M a n y officers are being asked each to supervise the social rehabilitation of 300 released prisoners. There are many instances of loads of 600 and 800, and one instance of as many as 2000 parolees. Such a task is a human impossibility. The officer who is charged with it becomes little more than a policeman whose only work is to return to the prison old offenders who have again run afoul of the law. Only in eight states (California, Illinois, Massachusetts, Minnesota, New Jersey, New Y o r k , Ohio, Pennsylvania) and in the Federal government do we find any substantial numbers of field agents working under central supervision. It is less than reasonable to expect a parole system which is so undermanned, overworked, and ill-equipped as that of many a state to show anything very substantial in the way of results. 1 All is not blackness in the parole picture. Though many states have assumed that the benefits of parole may be obtained through the simple process of passing a law, others have seen that adequate administration is the sine qua non of any decent parole system. The Federal government, New Y o r k , New Jersey, Massachusetts. Minnesota, Illinois, Pennsylvania, and California have been the leaders in this movement for improvement in parole. The New Y o r k system, for example, was called an "underfinanced moral gesture" in 1926. 2 In 1930 a new division of parole was established, headed by a Board of Parole of three full-time members each of whom has a salary of $12.000 a year. ' S e e also comments of VVinthrop L a n e , " A N e w D a y Opens f o r P a r o l e , " in Journal Criminal Law and Criminology, V o l . 24 ( 1 0 3 3 - 1 9 3 4 ) , pp. 0 3 - 9 5 . 2

G . W. Alger, R e p o r t on the Parole S y s t e m of N e w Y o r k , A l b a n y ,

p. 18.

oj

PAROLE

4SI

T h e board is given the assistance of ten social investigators, who are to supply it with information which may serve as a basis for its decisions. It is also required by law to consider the prisoner's social, physical, mental, and psychiatric condition and history, and his progress within the institution, when passing upon his application for release. Substantial provision is made for a staff of field agents. The law requires the appointment of a number of officers large enough to establish a maximum case load of 75 parolees. The qualifications of personality and training that these agents must meet have been written into the statute. The supervisory staff includes an executive officer at $9000, a chief parole officer at $6000, 3 case supervisors and 1 employment director at $4000 each, and 30 field agents in addition to the ten field investigators already mentioned. T h e executive director is required by law to formulate methods of investigation and supervision . . . and develop various processes in the technique of the case work . . . including interviewing, consultation of records, analysis of information, diagnosis, plan for treatment, correlation of effort by individuals and agencies, and methods of influencing human behavior. 1

In New Jersey the parole procedure bears a very close relation to the treatment of the offender inside the institution. Institutional policies and, in general, parole methods and procedure are established by a central authority, the State Department of Institutions and Agencies, which has a commissioner at the head. Although each correctional institution has a local board of managers, this board is essentially an authority delegated to carry out policies established by the State Department. A t each institution there is a "classification committee," the purpose of which is to plan programs of treatment for every offender within the institution, and also to make recommendations in regard to the time when the offender should be paroled. Members of this committee include the important members of the institution staff: superintendent, deputy superintendent, disciplinary officer, psychiatrist, psychologist, physician, head of the institutional school system, director of industries, chaplain, etc. Within a month after the arrival of each new inmate this committee decides important questions concerning his institutional 1 See appraisal of the N e w Y o r k system of parole b y G o v e r n o r Herbert H . L e h m a n in his speech before the N e w Y o r k State Conference on Social W o r k , reported in the New York Times, October 21, 1937.

452

C R I M E AND T H E COMMUNITY

life, such as medical treatment required, mental treatment (if a n y ) , schooling desirable, trade to be followed, and other questions likely to have a vital relation to his improvement and return to society as a law-abiding citizen. Periodic re-examinations are held, and consideration is given anew to whether he profits from the program laid out, or whether the program should be changed. T h e considerations underlying decisions reached by these "classification committees" are therapeutic in nature and are regarded as the most important decisions reached in the institutions. New Jersey has consciously set up a definite machinery for the individualization of treatment. When the classification committee thinks that the time has arrived, it recommends that the offender be placed on parole. T h i s recommendation comes immediately after re-examinations by the scientific members of the staff and full discussion of the case b y the whole committee. Thus, in the correctional institutions of New J e r s e y , parole is granted when the responsible members of the staff, who know the offender best, are satisfied that that is the best treatment f o r him and is consistent with the public welfare. T h e recommendation goes to the local board of managers, which usually accepts the advice of the classification committee. In many instances an offender is placed on a three months' trial parole, with the idea that if he does well this period will be renewed or he will be placed on full parole. In N e w J e r s e y the practice is to hold offenders on parole until the expiration of their maximum sentences—not simply for one year, as is the practice in many states. If before the expiration of the maximum the offenders seem to be doing very well, the rigors of supervision are somewhat relaxed, but the offender can still be brought back to the institution without trial if he violates parole. Parole supervision is under the jurisdiction of the central parole bureau, a bureau of the Department of Institutions and Agencies. In other words, parole officers are not attached to the staffs of institutions, but are employed by, and are responsible to, the central department. Qualifications for parole officers, as adopted recently by the Civil Service Commission of the State, are as follows: Education equivalent to that represented by graduates from colleges or universities of recognized standing; standard course in social service; two years' experience as social investigator, or education and experience as accepted as full equivalent by the Civil Service Commission. Knowledge of problems of delinquency, laws governing commitment, care and parole of delinquents;

453

PAROLE k n o w l e d g e of a p p r o v e d

m e t h o d s of s o c i a l c a s e w o r k , i n v e s t i g a t i n g

thoroughness, accuracy, tact, leadership,

firmness,

ability,

good address.1

M a n y m o r e s t a t e s m u s t f o l l o w in t h e f o o t s t e p s of N e w Y o r k a n d N e w Jersey and the Federal b e h a d in p a r o l e . failure,

despite

Government

before general improvement

enthusiastic

" s u c c e s s " of their s y s t e m s .

claims

by

parole

administrators

of

it w i l l

administer

the

P a r o l e w a s a n o t h e r i n s t a n c e of t h e A m e r i c a n

t e n d e n c y to p a s s a l a w e m b o d y i n g a g o o d i d e a in t h e h o p e t h a t how

can

U p to a f e w y e a r s ago, the record w a s largely one of

itself.

With

the

growing

realization

some-

that

no

p a r o l e s y s t e m c a n o p e r a t e w i t h o u t a d e q u a t e p r o v i s i o n for its a d m i n i s tration, a new d a y opens for parole.

BIBLIOGRAPHY ALGER, GEORGE W . Report on the Parole System of New York. J. B. L y o n Co.. Printers. A l b a n y , 1926. BATES, SANFORD. Prisons and Beyond. T h e Macmillan Company, N e w Y o r k , 1936. BERG, LOUIS. Revelations of a Prison Doctor. Minton, Balch & Co., N e w Y o r k , IQ34BRAMER, JOHN P. A Treatise Giving the History, Organization and Administration of Parole. T h e Irving Press, N e w Y o r k , 1926. BRUCE, ANDREW A . ; BURGESS, E. W . ; HARNO, A. J . ; and LANDESCO, JOHN. The Workings of the Indeterminate Sentence Law and the Parole System in Illinois. Chicago, The Committee on the Study of the Workings of the Indeterminate Sentence L a w and of Parole in the State of Illinois. 1928. (Also appears as Part I I of M a y , 1928, issue of the Journal of Criminal Law and Criminology, Vol. 19, No. 1.) BUTLER, A . W . American Prison Association Proceedings, 1910, p. 276. " O p e r a t i o n of the Indeterminate Sentence and Parole L a w . " Journal of Criminal Law and Criminology, Vol. 6 ( 1 9 1 5 - 1 9 1 6 ) , pp. 885-893. COOPER, COURTNEY RYLEY. Ten Thousand Public Enemies. Little, Brown, & C o m pany, Boston, 1935. Illinois Association f o r Criminal Justice. The Illinois Crime Survey. Chicago, 1929. Especially Chapter X I , " T h e Probation and Parole S y s t e m , " by Andrew A. Bruce, E. W . Burgess, and Albert J. Harno. LANE, WINTHROP. " A N e w D a y Opens for P a r o l e . " Journal of Criminal Law and Criminology, Vol. 24 ( 1 9 3 3 - 1 9 3 4 ) , PP- 88-108. " P a r o l e Procedure in N e w Jersey." Journal of Criminal Law and Criminology. Vol. 22 ( 1 9 3 1 - 1 9 3 2 ) , PP- 375-4°5LINDSEY, E . " H i s t o r i c a l Sketch of the Indeterminate Sentence and the Parole System." Journal of Criminal Law and Criminology, 1925-1926, pp. 9 - 1 2 6 . National Commission on L a w Observance and Enforcement, Report on Penal Institutions, Probation and Parole. N o . g. Government Printing Office, Washington, 1931. THOMAS, GEORGE, and JENSEN, A. L. A Study of the Indeterminate Sentence, Probation, and Parole in Utah. University of Utah, Bulletin, Vol. 21, No. 7, 1931. 1 National Commission on Law Observance and Enforcement, Report on Penal tions, Probation and Parole, p. 311.

Institu-

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CRIME AND THE COMMUNITY

TIBBETS, CLARK. "Success or Failure on Parole Can Be Predicted," pp. 1 1 - 5 0 ; and "Reliability of Factors in Predicting Success or Failure on Parole," pp. 844-853. Journal of Criminal Law and Criminology, Vol. 22 (1931-1932). United States Bureau of the Census. Prisoners in State and Federal Prisons and Reformatories. Government Printing Office, Washington. Published annually. United States Bureau of Prisons. Reports, Studies, etc., especially since 1923. Government Printing Office, Washington. Virginia. Report of the Commission to Study Prison Sentences. House Document No. 3. January, 1934. VOLD, GEORGE B. Prediction Methods in Parole. The Sociological Press, Minneapolis, i93iWILCOX, CLAIR. The Parole of Adults from the State Penal Institutions in Pennsylvania and Other Commonwealths. Pennsylvania State Parole Commission Report to the Legislature, 1927. "Parole: Principles and Practice." Journal of Criminal Law and Criminology. Vol. 20 ( 1 9 2 9 - 1 9 3 0 ) , pp. 345-354-

CHAPTER

X I X • Probation

1. The Purpose of

Probation

Probation, like parole and imprisonment, has as its primary objective the protection of society against crime. I t s methods may differ, but its broad purpose must be to serve the great end of all organized justice— the protection of the community. Like parole and confinement, it is post-judicial t r e a t m e n t ; it commences when the court has heard the defendant's case and found him guilty. Unlike them, it begins before, rather than after, commitment to an institution. It differs from both parole and imprisonment in another important respect. Instead of surrendering the convicted individual to a penal institution, in some jurisdictions the court retains control for as long a period as it sees fit, or as is prescribed by law. T h u s probation is an extension of the powers of the court over the future behavior and destiny of the convicted person such as is not retained in other dispositions of criminal cases. I t is therefore an addition to the older functions of the court and an increase of the court's responsibility. This is true whether supervision is under a State, county, municipal, or court-directed probation service, inasmuch as the power of the court to sentence for failure to comply with the conditions of probation remains unimpaired. T h e point of departure in probation is the recognition that in certain types of behavior problems which come before the courts confinement may be both an unnecessary and an inadequate means of dealing with the individuals involved; unnecessary because in that particular case the end sought, that is, the protection of society, may be achieved without the cost of confinement, and inadequate because the prison sentence m a y create difficulties and complications which will make more doubtful rather than less doubtful the reinstatement of that particular individual as a law-abiding citizen.

2. The Effects of

Imprisonment

T h e alternative to probation is institutional confinement. But institutional confinement raises complicating problems for the nonprofessional criminal which may be avoided by probation. Probation

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CRIME AND THE COMMUNITY

avoids the shattering effect upon individual personality which frequently follows imprisonment. Probation keeps the man's personality in its old moorings; it makes no violent and sudden wrench in his daily habits; it does not destroy his family relations, his contacts with his friends, his economic independence. All that is good and desirable in his old habits is retained; every contact, interest, emotion, and habit which can be utilized to keep his relations with his community within the expected norm come automatically into play and become powerful factors in straightening the individual's habit patterns back to normal. The crime for which the man was arrested is not dramatized and used as a reason for disrupting the rhythm of his life. Quite the opposite takes place when a man is sentenced to prison. Sentence automatically terminates the current flow of contacts and loyalties which make up the daily round of ordinary adjustments. The sentenced man loses the contacts which his job, his friends, and his family provide. All the associations, formal and informal, which make up so much of life disappear. Moreover, the stimuli and values which these contacts involve also disappear. He is suddenly forced to adjust his personality to a new definition of himself which is given him by the prison. The individual act which may have been an incident in his life—an incident which with time might have disappeared and been submerged in the larger personality —is suddenly given a significance to himself and to society which it did not have before. The whole organized machinery of the community comes into action on the assumption that the most important fact in that particular individual's life is the act for which he has been arrested and for which he has been sent to prison. That may not be the case at all, however, especially in the many semiaccidental and incidental ways in which first-timers frequently find themselves in conflict with the law. An act which may have had no particular significance in the habit career of the individual is thus suddenly drawn from his total scheme of habits and dramatized, emphasized, talked about. This may happen to such an extent that the individual takes over a definition of himself, until then altogether foreign to him, and identifies himself as the person he is credited with being. That, however, is only one of the difficulties that come with imprisonment. Another is that life in a penal institution is not comparable with the ordinary world in which a man has to live and make a living. The behavior demanded from an individual inside a prison has no necessary counterpart in the behavior exacted in the outside world. The

PROBATION

457

reactions and patterns a man takes on in the prison may not only be of no service to him when he is ultimately released, but may actually prove to be a hindrance in the attempt at readjustment which he then will have to make. The administrative organization of the prison exacts little, if any, initiative. It provides him with most of those things which in the outside world call for self-direction, ambition, effort. The food, shelter, clothing, and security which call for much activity outside are here freely given, and what is exacted in return is mainly acquiescence in the institutional scheme of things. With the limited amounts of employment which our penal institutions are able to provide for prisoners, the prison inmate is frequently not expected even to work for the food, shelter, and clothing given him. Being a good prisoner means, all too often, being an uncomplaining and pliable one, showing no particular evidence of any activity, developing no particular character in any direction. In other words, the habit pattern, the response to the institutional stimuli which is accepted and approved, is obviously not the type which the prisoner can utilize in the world after his release. Moreover, these responses, exacted as the price of good treatment and described as "good behavior" inside the prison, are a new set of habits, a different set from those desirable habits which the man may be assumed to have had before coming to the prison as a first-timer and which all men, by and large, must have if they are to continue living in our organized world. The habit system of the prison is no help to readjustment. It develops just those qualities that make for lack of adjustment. Here are to be sought and found the reasons for many prison failures. The habits given the men inside the institution are such as to unfit them for ready return to a normal scheme of living and working. This factor, plus the new attitude developed toward the returning criminal, the expectancy of the community that he will continue as a criminal, the notion that "once a thief, always a thief," the dramatized and exaggerated significance of the one act in his life pattern mentioned before, become real impediments. Unfortunately they tend to become true in practice. It is difficult upon release to shed those new influences that have come with confinement. Associations within the prison develop a series of contacts with the crime world—friendships, information, belief, and attitude—that make more difficult the normal readjustment and encourage continuance in the career of crime into which he was initiated by his perhaps incidental first act, identified by his arrest, and confirmed by the prison sentence.

458

CRIME AND THE COMMUNITY

3. The Method of Probation The probation system avoids these difficulties. It falls back upon those interests, contacts, and habits which the individual has in his own little world, utilizes them for the submergence of the act which has brought him into conflict with the law, and gradually readjusts him to the continuance of the normal life which went on before the act took place and which, it is hoped, will continue after the period of training has passed. Probation does not add to the difficulties by raising in the delinquent's life a series of new issues which have no place in ordinary existence; it does not distort his personality by exaggerating the significance of some single act and does not pull that personality out of the pattern of life which many years of living and association have developed. It utilizes this pattern as a source of strength. The community agencies become aids rather than hindrances in the process of adjustment. It is here that the value of probation as a method of correction and guidance is to be found. This analysis of some of the psychological and social implications of probation acquires added significance when we compare the extent of legal control involved in the alternative use of imprisonment. It seems generally to be assumed that the question is one of absolutes, as if imprisonment and probation were not comparable in terms of supervision by legal agencies. As a matter of fact, it is frequently a question whether the individual should be released immediately under supervision of the court or whether he should be released within a comparatively short period without supervision and after unwholesome contact with the criminal population in a penal institution. In the prison and reformatory population of the United States as a whole, something like 97 per cent of the inmates are subject to release. Excepting those who will die while in confinement, all these will be released. The average time served in our reformatories and prisons, excluding jails and workhouses, for those freed during 1932 was 24.1 months, or a little over two years. The prisoners with the heaviest sentences in our State and Federal prisons and reformatories, those who served over ten years, were only 1 per cent of the total. Over 40 per cent served less than a year and nearly two thirds served less than two years. It is to be noticed, however, that in 1923 the reformatories and prisons had received only 10.S per cent of all the prisoners reported as admitted to all penal institutions. If we assume that the present

459

PROBATION

ratio of admissions between reformatories and prisons and other penal institutions is the same as it was in 1 9 2 3 , then some 90 per cent of all the prisoners in the country pass through institutions where on the average the sentence is considerably less than in the reformatories and prisons. In 1 9 2 3 more than 67 per cent of all jail and workhouse inmates were freed in less than one month, more than 98 per cent were freed in less than a year, and only 1 per cent of the jail and workhouse population served more than one y e a r .

T h i s is significant in view of

the fact that either by law or b y practice the courts on the whole place on probation only those prisoners convicted of lesser crimes and ordinarily subject to comparatively light sentences.

While there are

many exceptions to the general rule, the f a c t still remains that ordinarily it is the lesser culprit, the one who would be a short-term prisoner, who is given the benefit of probation. T h e evidence, however, indicates clearly that the length of probation, even for persons subject to prison sentences but placed on probation, is on the average equal to the average length of time served by those who are imprisoned, and possibly exceeds it. T h e issue, therefore, is whether a man should be sent up for a short period of imprisonment—exposed to contacts with the criminal community of which he m a y be completely ignorant, his normal life interrupted, his job, his business, his personal reputation, his self-respect, his place in the world jeopardized, if not ruined, for the sake of a short imprisonment, with results that experience has in most instances proved to be u n d e s i r a b l e — o r whether he should be given an opportunity for readjustment to the community where he has his whole life to live, for returning to a normal relationship with his particular world under the sympathetic supervision which the probation system can supply. Tiiis question becomes the more pertinent when a responsible commission of the state that has had more than fifty y e a r s ' experience with probation testifies (Massachusetts Senate Document, 1 9 2 4 , N o . 4 3 1 , p. 1 2 ) that of all those released on probation in 1 9 1 5 , only 1 2 per cent were subsequently committed in Massachusetts to institutions.

This

is in sharp contrast with the later careers of a group of former inmates of the reformatory in the same state, 44.3 per cent of whom were found to have been subsequently sentenced to penal institutions. T h i s failure of the prisons to reconstruct the habit pattern of the inmates is b y common agreement true of all our penal institutions. N o one acquainted with the f a c t s seriously claims for them a reformative influence.

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CRIME A N D THE C O M M U N I T Y

4. Origin of the Probation

Movement

Massachusetts passed the first probation law as early as 1878, requiring the appointment of a probation officer for the city of Boston, and as early as 1891 by law required the criminal courts of the state to appoint probation officers. But most of the other probation legislation now in operation was enacted after 1900. Only five states adopted probation legislation before 1900, and of these only three dealt with adult probation. In spite of its recent development, adult probation has spread with great rapidity and is now to be found in most of the states (and the District of Columbia), under the Federal government, and in many European countries, as well as in a number of the states of South America, Asia, and Africa. This rapid adoption by the world of an essentially American invention in the handling of certain types of criminal cases is in the nature of a tribute to its usefulness and validity. It is also important to notice that in the years since probation was first placed upon the statute books of Massachusetts there has been no retrogression, and the experience of some 35 years in other states merely confirms the usefulness and vitality of this new method of criminal treatment. There have naturally been criticisms, modifications, and changes, but no abandonment of the initial process. The importance of probation as an instrument in court procedure is indicated by the fact that " a recent count shows approximately 3700 probation officers in the courts, regularly appointed and more or less paid." 1

5. Differences in State Probation Laws Probation must be considered as having become a permanent and fixed feature of our attempts to deal with the problem of crime; but the range of its applicability, the character of its administration, and the specific machinery best adapted to its use are still in an experimental stage. They are experimental in the sense in which most of our activities dealing with the problem of crime are experimental. W e are always seeking new ways and new methods for the handling of specific problems. Differences in the probation laws of different states are explained in part by the fact that local conditions warrant different legislation. 1 Chas. S. Chute, "Probation Service T o d a y — P r o g r e s s or Retrogression." National bation Association Yearbook, i f j o , p. 90.

Pro-

PROBATION

461

T h e y may also reflect differences in specific legal or procedural traditions. But they are perhaps most largely a reflection of the gradually accumulating experience in the field of probation. State laws are becoming more comprehensive, their specifications more definite, their demands upon judges and probation officers more concrete. While the differences in legislation are the natural product of the conditions under which the legislation has developed and of the lessons of experience, yet there are practices which work well and might be expected to have general applicability which are adopted in only a few places. For example, the states differ sharply in the range of offenses which may be subject to probation. I t is interesting to observe that seven states place no limitation on the offense for which probation may be extended; four exclude capital or life-imprisonment offenses, while others limit probation more strictly by excluding specified serious offenses, some limiting probation to offenses punishable by less than ten years' imprisonment, some making it available only for misdemeanants, while the states of Alabama, Kentucky, and North Carolina permit probation only for minor offenses. It is probably true that such sharp differences between the states on the question of the specific type of crime for which probation may be allowed are not warranted by the local situations out of which the crimes develop. T h e states which permit the courts the broadest discretion in the matter of probation are those, on the whole, that have had the longest experience with it. It is clear too that the present tendency is to widen the range of offenses for which probation may be granted. As in the case of the crime, so in the case of the criminal himself, the states vary greatly in the extension of discretionary powers to the court to use probation instead of imprisonment. In New Y o r k State conviction on a fourth felony, in six states convictions on a second felony, in two states any previous imprisonment, constitute barriers to the use of probation. A curious and striking contradiction in the policy of two states in the use of probation is to be found in the laws of Iowa and North Carolina. The first makes probation of a person afflicted with a venereal disease impossible, the second makes probation possible only in the case of a person afflicted with a venereal disease or convicted of second-degree prostitution. I t is evident that the differences are partly accidental and arise from insufficient experience with the method of probation as an instrument for the correction of the delinquent and the protection of society.

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C R I M E AND THE COMMUNITY

6. Selection of Subjects for Probation Who should be placed on probation ? Which of the many hundreds or even thousands of individuals who come before the court during the year may safely be released under supervision? Upon the satisfactory answer to that question will largely depend the effectiveness and utility of probation. The law may set limits on probation by excluding all prisoners convicted of a fourth felony, or of a second felony, or liable to life imprisonment. That is merely an arbitrary limitation of the legal class of individuals who may be considered for release under supervision. But of those who are considered, which shall be released under probation ? Experience has proved that there are certain prisoners who are less fitted for release than others. It is clear from evidence available that drug addicts, persistent alcoholics, and feeble-minded prisoners with strongly developed criminal habits are not easily amenable to probationary treatment. It seems clear also that prisoners who have had long previous experience in criminal activity, who have wide contacts with the underworld, courts, police, and prisons, are less amenable to probation than those who come to the courts as first-timers. The court, therefore, has the already proved experience that certain welldefined classes make greater probation risks than others. But this is not conclusive evidence that even these classes may not be proper subjects for probation. The only conclusion which the evidence warrants is that with our present knowledge and with our present supervising staff these classes are not good risks. It is admitted by all concerned that probation services almost everywhere are understaffed. While the best practice would limit the case load of a probation officer to 50 cases, in many jurisdictions the case load is many hundreds of cases, making any supervision difficult. The failure under probation may really represent a case of inadequate attention during probation rather than an absolute inability to make a new adjustment. There is responsible opinion among experienced probation officers that this is true in many, possibly most, instances of failure. This is important to remember because the alternative of imprisonment has already been tried in many of these instances without result and in many instances with decreased effectiveness and increased expense. When we have made our first classification between the greater and lesser risks from the point of view of probation, we still have the large mass of persons coming to court who are not drug addicts, persistent

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PROBATION

drunkards, habitual criminals, or feeble-minded. Are all these proper subjects for probation ? In terms of our present experience we cannot say. It is clear from the testimony of prison and judicial officials that there are many men in prison who would have made good risks for probation. " F o r there are thousands of prisoners now confined in our State prisons who could be discharged without fear of recurring crime," is the assertion of the warden of one of the largest and best-known prisons in the country. T h e decision in each case must therefore depend upon the scrutiny of the various elements in the case itself. It is here perhaps that probation is making its greatest contribution to the court, as well as its most significant contribution to the general science of penal and correctional treatment of the unsocial individual. Probation is in essence a method of individualization.

It compels the

court to search into the individual's background, his relation with the world as a whole. Questions of the most intimate and personal sort are asked. W h y did he become a criminal? W h a t can be done about setting his steps right in the world again ? Is it a difficulty of personality subject to correction ? Is it a family difficulty ? Is it a physical deformity, occupational maladjustment, or some combination of these ? W h a t is the man's previous history, not necessarily as a lawbreaker, but as a human being?

T o the adequate answer to these and many

more questions the court must adjust its action in deciding between imprisonment and probation. If imprisonment, for how long? probation, under what conditions?

and if

T h a t is, the case history placed

before the court by the probation officer brings into the record a body of information which otherwise m a y not be admitted. It is clear that probation is significant not only for what is done after release but for its investigation of the case for the information of the court before sentence is imposed. Adequate sentence b y the court is more likely to be achieved if a complete history of the offender is placed before it. " T h e conclusion seems warranted that on right investigation depends right sentencing in important cases, and on right sentencing depends the effectiveness of the whole process of criminal prosecution itself. Probation so understood assumes an importance as a necessary adjunct to criminal justice that is realized b y but a f e w . " Here the contribution toward the socialization of court methodology is of great value for the future. It makes the i n d i v i d u a l — t h e individual as a w h o l e — s u b j e c t to review before sentence is imposed.

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CRIME AND THE

COMMUNITY

7. Appointment of Probation Officers T h e first probation officers were volunteers. T h a t was natural and logical in a movement having its origin in voluntary and private efforts of individuals to save men brought before the courts from careers of crime. It was a personal relationship between the volunteer officer and the prisoner before the court. Such being the case, it was natural that with the enactment of legislation making probation a part of the formal machinery of the court the older volunteer system should continue to play an important part. This has continued in some places even to this day. While the volunteer probation officer has been of the greatest service in the development of probation, and while it is probably true that without the fine public spirit displayed by the volunteers the development of this system of treatment would have made much slower progress than it has, it is true also that with the increase in the range and responsibility of probation the volunteer has proved increasingly ineffective and inadequate. The larger probation systems, such as that of the municipal court of Philadelphia, have more than two hundred officers. Under a system as complex and many-sided as that, it is impossible to expect a volunteer service to satisfy the exacting needs of a large and busy court. It is true that the volunteer is still useful and may perhaps, because of the peculiar closeness of the personal relation in probation service, always find a place in the scheme. B u t the development of the service and its continuance must depend upon a paid and supervised professional staff. In the early development of probation an attempt was made to utilize the police of the larger cities as probation officers. This was done by assigning a number of specified members of the police force to probation duty. This, however, was soon discovered to be a mistake in policy. Probation and police duty are essentially different in their nature, and few if any can serve both these functions fully. But even if the police were to be found who could combine a helpful, encouraging, and sympathetic relationship with their ordinary watchful, suspicious, and apprehending functions, it is doubtful whether the person on probation could well adapt himself to the policeman as a "friend, guide, and counsel." The experience in New York State proved convincing in this matter. The State Probation Commission reported in 1906 that T h e police officer, as a rule, has no expectation that offenders will reform. His chief duty is in the enforcement of the l a w — r e p r e s s i o n , not reformation. He has little conception of what probation work means, and, as a rule, little or

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PROBATION

no aptitude for it . . . and hinders the development of the real probation work in these courts. H e n c e in the development of probation in the future the paid and specially trained probation officer must p l a y an increasing part. I t is fortunate that training facilities are gradually developing either in schools of social w o r k or in universities.

T h e probation officer must

have a broad general training with special emphasis upon social problems and social w o r k .

His appointment, whether b y civil

service

methods under the auspices of a general state probation service, b y some sort of v o l u n t a r y merit system as is the case in some of the larger municipalities, or directly b y the court, ought a l w a y s to presuppose adequate training and ability.

T h e question of what is the

best method of appointment can scarcely be settled in the form of a general rule.

A p p o i n t m e n t by the court seems the simplest and the

most logical.

A f t e r all, a very confidential relationship between the

court and the prisoner is involved, and in consequence the court must h a v e implicit confidence and faith in the integrity of its probation officers. O n the other hand, the comparatively short tenure of judges in m a n y jurisdictions, the lack of acquaintance with probation and its methods in others, the danger of political influence, the need for general standards, the need for comparative judgment upon the effectiveness of the w o r k of the probation service in the different courts, the need for supervision, seem to argue for some more general and centralized guidance than is possible when probation officers are responsible merely to the courts which h a v e appointed them for the time being.

8. Centralization

of

Supervision

I t is desirable that the states should feel their w a y toward a more centralized system of probation supervision and control.

It has been

argued that Probation is one of the State's methods of controlling offenders quite as much as putting them in prison or releasing them on parole. One is quite as much a concern of the State as the other. As it is an inherent function exercised in connection with the courts of the State, it is obvious that it is a State function and not anything that has to do with the locality. State supervision, guidance, and control are needed for the setting of state-wide standards, for the laying down of conditions of appointment, for criticism, investigation, and evaluation. L o c a l need and experience,

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CRIME AND THE COMMUNITY

to be sure, will have to guide the development of the method and form most fitting for the particular situation. But all efforts to secure federation, the mutual exchange of information and experience, and the raising of the professional character of the probation service ought to be encouraged so that even where state centralization does not exist in law some of its benefits may be achieved in fact through voluntary organization. 1

9. The Measure of Success in Probation Some idea of the measure of success achieved by the use of probation may be obtained ( i ) from a consideration of the behavior of persons placed on probation during the term of probation, and (2) from a consideration of their behavior after their discharge. The reports of probation officers give information on this head. For example, the report of the Cook County (Illinois) Adult Probation Department for the year ending September 30, 192 7,2 showed that of 5701 persons discharged from probation during the year, results described as "satisfactory" were achieved in the cases of 4027 (71 per cent), "doubtful" in the cases of 216 (4 per cent), "unsatisfactory" in the cases of 1322 (23 per cent); while 103 (2 per cent) were sent to institutions and 33 (less than 1 per cent) died. The report of the New York State Department of Correction, Division of Probation, for 192 7 3 showed that 71 per cent of the men and 77 per cent of the women passed from probation during the year were discharged "with improvement," 8 and 3 per cent respectively were discharged "without improvement," 10 per cent of both were "rearrested and committed," 1 0 and 9 per cent respectively absconded or were lost from sight. The report of the Essex County (New Jersey) Probation Department for 1929 4 showed that 68 per cent of those placed on probation were discharged "with improvement," 7 per cent were discharged "without improvement," 14 per cent were "resentenced and committed," 9 per cent "absconded," and the rest either "died," were "released by court order," or were "transferred to other probation department." In Detroit during the three-year period ending June 30, 192 7, of 7889 persons discharged from probation to the recorder's court of Detroit, 70 per ' F o r a careful statement of good probation,see National Commission on L a w Observance and Enforcement, Report No. 9, pp. 179-207, " R e p o r t of the Advisory Committee on Penal Institutions, Probation and Parole." 2 Sixteenth Annual Report, p. 1 3 . «Twenty-sixth Annual Report, p. 109. B Twenty-first Annual Report, p. 40.

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467

cent were "discharged with improvement," 10 per cent were committed either for new offenses or as violators of the terms of their probation, and 18 per cent were discharged without improvement, absconded, or were suspended from supervision by statutory limitation of the period of probation; about 2 per cent either died or were discharged through appeal for a new trial. While these reports represent the probation officer's own estimate, some supporting evidence as to the percentage of successes is found in the reports of studies made by commissions and other independent bodies, although it is not clear that the latter always represent an independent appraisal of the results achieved. T h e Baltimore Criminal Justice Commission 1 showed that in a group of 305 probationers 49 per cent of the cases were not successful. The results of this study should probably be received with caution, inasmuch as a question has been raised 2 as to how much the comparatively poor results recorded were attributable to poor administration of probation rather than to any inherent weakness in the system. A study in 1924 of the cases of 383 men placed on probation in Massachusetts 3 showed that 59 per cent "made satisfactory response during the probation period," while 18 per cent made "less satisfactory" response and only 9 per cent " s o far failed as to be surrendered by the probation officer to the court and committed by the court to institutions" ; 13 per cent "disappeared." "Judged further by commitments to institutions subsequent to probation, only 12 per cent are known to have been committed." The evidence as to the measure of success achieved by probation on the basis of the behavior of persons after they have been released from probation is very meager. It has been said: A number of studies have been attempted. Some were abandoned, others were not published, as it was felt that probation as a system should not be judged by them, as they were based on probation administration that was decidedly deficient. A f t e r studies have been opposed because they involve the risk of revealing to friends or neighbors a man's past life which he has lived down. 4

In Erie County, New Y o r k , a study made in 1920 6 of 200 former probationers showed that i n (72 per cent) of those discharged as Quarterly Bulletin, September 30, 1926, pp. 9, 10. Y o r k Crime Commission, 1927 Report, p. 270. s M a s s . Senate Document No. 431, Report of the Commission on Probation (1924), p. 27. 4 N e w Y o r k Crime Commission, op. cit., pp. 269-270. 0 State Probation Commission, Annual Report, 1920, p. 31. 1

2New

468

CRIME AND THE COMMUNITY

improved had continued to show improvement. This estimate represents not only absence of arrests but improved economic and social adjustments. The Baltimore study referred to above showed only n per cent of those released from probation as "successful" to have been problems afterwards to the social agencies, and only 29 per cent to have been convicted later. In the Special Sessions study in New York City covering the period from 1 9 1 2 to 1 9 1 9 , 1 in a group of 125 persons it was found that probation had been "satisfactory" in 65 per cent of the cases where fingerprint records permitted subsequent identification of probationers. "Satisfactory" in these cases meant satisfactory as shown by the probation record during probation and without subsequent records in the files of the police department, magistrates' courts, department of correction, state prison department, or United States Federal Bureau of Criminal Identification. In the Massachusetts study referred to above it was found that there was no subsequent court record as to 65 per cent of those placed on probation and no subsequent institutional record as to 88 per cent. A study in 1926 in Wisconsin of 65 cases discharged from probation in 1922 showed that of the 52 that could be found only 6 had been subsequently arrested for serious offenses. As to 33 there was "satisfactory evidence of good conduct and living conditions." That the courts of New York feel increasing confidence in probation as a method of correction is shown by the consistent increase in the total and relative number of cases placed on probation. Since 1908 the New York courts have placed 357,559 adults on probation. In 1907 there were 1672 prisoners on probation, as against 12,053 penal institutions. In 1927 the number on probation had increased approximately fourteen times to 23,302, while the number in correctional institutions had increased only by about 50 per cent to 1 8 , 1 1 0 . Between 1 9 1 8 and 1927 there were for each year more persons on probation than in correctional institutions. This is evidence that the courts are putting more and more faith in probation as a method of control and supervision. There has been a marked increase also in the number on probation from the Federal courts. There were 30,976 cases under supervision at the end of 1933, and the act authorizing Federal judges to use probation was not passed until 1925. The most striking evidence of the success of probation is supplied by the courts of Massachusetts. It should be remembered that this commonwealth has had more than fifty years of experience with proJ

N e w Y o r k County, Court of Special Sessions, Annual Report, 1925, p. 29.

469

PROBATION bation.

Between the years of

1900 and 1929 the number

released

annually on probation increased approximately five times, from 6201 in 1900 to 32,809 in 1929. D u r i n g this same period, when the number placed on probation increased

fivefold,

commitments to institutions

actually decreased from 27,809 to 19,650. D u r i n g this same period we see that the actual number of persons on probation almost tripled and that the proportion of the probations to all dispositions b y the courts rose from 9.4 per cent to 22.4 per cent. T h i s increase is the more significant as an estimate of the value of probation when w e note that in spite of the rapid increase in both actual and relative numbers released b y the courts on probation there has been no decrease in the percentage of successes in probation. In 1900 the satisfactory cases stood at 75 per cent of all released; b y 1930 they stood at 80 per cent of all cases. T h i s is especially significant because experience must h a v e led to higher standards of judgment. T h e s e figures show that an increase in the relative number of probation cases is not necessarily accompanied b y a decrease in the efficiency of probation. A t least in the cases under discussion it w a s possible to triple the number on probation without lowering the ratio of successful cases. T h e r e is further evidence that the confidence of the M a s s a chusetts courts in the efficacy of probation w a s justified.

W h i l e the

number of persons placed on probation was increasing and the number of prisoners in penal institutions was decreasing, the total number of serious crimes against the person and against property w a s decreasing in spite of an increase in population.

If the crime of robbery is taken

as a typical offense, in 1933 there were 46.7 such offenses per 100,000 population known to the police in the South Atlantic States, 89.5 in the E a s t N o r t h Central States, 10.4 in Massachusetts, and 9.2 in N e w Y o r k . A comparison of the homicide rates of cities of the United States 1 shows that while the highest for a n y city was 69.8 per hundred thousand population, N e w Y o r k had 6.7, C h i c a g o approximately 15, Minneapolis 8.9, and Boston (which has the highest rate in any city in M a s s a c h u setts) only 3.4.

In 1904 there were for the country as a whole 68.5

persons in prisons and reformatories per hundred thousand population ; b y 1928 this number had risen to 85.3. F o r Massachusetts during the same period the number of prisoners actually fell.

It w a s 64.5 per

hundred thousand in 1904 and 43.7 in 1928. For the country as a whole the prison population of State prisons and reformatories increased 16.8 ' S e e report of speech of the Hon. S a n f o r d W . Bates, published in Indiana Law Observance

and Enforcement,

Indianapolis, 1929, p. 100.

Conference

on

470

C R I M E AND T H E COMMUNITY

per hundred thousand population during this period, 1 while in Massachusetts it decreased 20.2 per hundred thousand. This raises the question whether it is possible to assume that probation might still further be increased with a continuous rise in satisfactory outcome. On the present evidence there is no reason to assume the contrary. On purely theoretical grounds success in probation is determined not by the number of cases but by the care with which they are chosen and by the character of the supervision which they receive after release. It would be perfectly possible to have a large percentage of failures with a small group of probationers if they were poorly chosen and badly supervised. It must be remembered also that many of those most competent to judge believe that there are many men in prison who would have made good probation cases. In Massachusetts even courts of the same type and of the same jurisdiction, courts in similar cities and under comparable social environments, differ widely in the frequency with which they make use of probation as a method of disposition of the cases before them. It is clear that such differences are accidental and incidental, reflecting the personal attitudes of the courts in question. It may be true that some of these courts make too ready a use of probation; but it is true also that many of the courts could largely increase the number of men they release on probation without seriously threatening the efficiency of the probation procedure.

10. Failures in Probation A failure in probation results either from failure in a court's judgment of the risk represented by the individual in question (a failure which may be due in part to the insufficiency of the information made available to the court) or from the inadequacy of the supervision provided. There is fair reason to believe from the evidence cited above that some 70 per cent of all probation cases are finally readjusted to the community without further conflict with the law. This is a much higher percentage than any would claim for imprisonment, and at much less cost; but, even so, failure in 30 per cent of the cases must be considered high. It is here that the most careful study is needed: why do the 30 per cent fail? Of course the answer in each case would be different. But it is fair to argue that a part—and perhaps the greater part—is • F r o m 55,429 to 98,795. U. S. Bureau of the Census, Prisoners, 1927, Table 2, p. 4. Washington, 1928.

PROBATION

471

due to lack of adequate supervision. One officer bluntly states that lack of supervision was at the root of much violation of probation. The particular probation officer may not have been the most adequate choice for that particular case. Perhaps the case needed much more attention than was given it by the probation service, or it may have needed a treatment which the service was not cognizant of or did not seek to provide. It might be argued that every failure which is not due to the faulty exercise of judgment by the court is a failure, not of the individual to adjust, but of the probation service to supply the directed supervision which would have made adjustment possible. The failure reflects not so much upon the individual; he has already failed once. This is certainly true when it is possible for mature judgment upon one of the large city probation organizations to assert: The probation department of the men's criminal division is a probation department in name only. The work being done by that division at the present time can not be dignified by the name of probation. The writer was unable to learn what the officers do with their time, or what are the real activities of the chief of the division.

11.

The Cost of

Probation

It has been estimated that in New York imprisonment costs about nineteen times as much as probation. The institutional cost of confinement was estimated in 1926 at $555.75 per inmate, as against $29.34 for probation supervision per case. In Ohio for the same year probation cost $32 as against $236 for imprisonment. In Massachusetts the cost is $35 for probation and $350 for incarceration. In Indiana the cost of these two methods of treatment has been estimated at $18 for probation against $300 for imprisonment. This cost comparison, though striking, is only partial. It does not include the state's investment of millions of dollars in the land, buildings, and equipment of the original prisons. An example of the possible initial cost of housing per inmate is indicated by the following: Attica Prison in New Y o r k State provides adequately for 2,000 inmates, at the cost per inmate of approximately $5,000. But even an inclusion of the original investment in prison construction would still leave the comparison of costs between probation and imprisonment incomplete. T o it would have to be added that under probation the man not only supports himself but maintains his family and keeps them from becoming dependent upon public charity, as fre-

472

C R I M E

A N D

T H E

C O M M U N I T Y

quently happens under imprisonment. T o this important factor another should be added. T h e probation officers, as part of their duty, collect large sums of money, representing payments on fines imposed, costs taxed, restitutions ordered, etc. In Massachusetts in 1926 probation officers collected $1,828,111.28. T h e collections were $1,339,673 more than the cost of service. In New Y o r k State, where the entire estimated cost from public funds for the probation system in 1927 was $792,636.17, the probation officers collected $3,971,799.17. In any account in terms of cost, therefore, the expenditure for probation as against imprisonment per individual is so much lower as to make imprisonment, when it can possibly be avoided without injury to society, an unwarranted waste of public funds. It must be clear that only when we have taken the means and the effort, have spent as much money upon probation supervision in our most difficult cases as we spend on an average on all prison cases, and have had as many failures as it is generally admitted must be charged to the prison, may we admit that with equal expense and effort both methods are equally ineffective in those specific instances which are known to be most refractory. Not until we have done that can we assume, and much less assert, that probation is as ineffective in the recalcitrant cases as we know institutional treatment has proved.

BIBLIOGRAPHY

The Annals of the American Academy of Political and Social Science. "Prisons of Tomorrow," Vol. 157 (September, 1931). Baltimore Criminal Justice Commission. Quarterly Bulletin, September 30, 1926. Cook County (Illinois) Adult Probation Department. Sixteenth Annual Report for the Y e a r Ending September 30, 1927. COOLEY, EDWARD J. Probation and Delinquency. Published by the author, 447 Madison Ave., New Y o r k , 1927. GLUECK, SHELDON, editor. Probation and Criminal Justice. The Macmillan Company, 1933. Illinois. The Committee on the Study of the Workings of the Indeterminate Sentence Law and of Parole in the State of Illinois, The Workings of the Indeterminate Sentence Law and the Parole System in Illinois. A report by A. W. Bruce, E. W. Burgess, A. J. Harno. and J. Landesco. Chicago, 1928. Indiana Conference on Law Observance and Enforcement. Indianapolis. 1920. Especially speech of the Hon. Sanford W. Bates, p. 100. Massachusetts. Report of the Commission on Probation. Senate Document No. 431 1924. MONACHESI, ELIO D . Prediction neapolis, Minn., 1932.

Factors

in Probation.

Sociological Press, Min-

PROBATION"

473

National Probation Association. The Year Book (annual >. New Jersey. Essex County Probation Department. Twenty-sixth Annual Repoit IQ2Q.

New York State. Commission to Investigate Prison Administration and Construction (Lewisohn Commission). Probation in New York State. Special Report . . . presented to the Legislature . . . February, 1933. New York State. Court of Special Sessions of New York County, Annual Report. 1925. New York State Department of Correction, Division of Probation. Twenty-First Annual Report, 1927. New York State. Reports of the Crime Commission. Legislative documents. Especially 1927. New York State. State Probation Commission, Annual Report, 1920. Report of the Advisory Committee on Penal Institutions, Probation and Parole. In National Commission on Law Observance and Enforcement, Report on Penal Institutions, Probation and Parole, No. 9, pp. 179-207. Sentence, ProbaT H O M A S , GEORGE, and J E N S E N , A. L. A Study of the Indeterminate tion, and Parole in Utah. University of Utah, Bulletin, Vol. 21, Xo. 7, 1931. T R O U G H T , T . W . Probation in Europe. Blackwell, Oxford, England, 1927.

CHAPTER X X

• What of the Future?

The discussion in this book leaves unanswered the problem of an alternative policy in dealing with the criminal. No one who accepts its analysis of criminal organization and behavior as one way of reading the pattern of American social life can remain content with the specific institutions that have been developed to repress crime and to punish or rehabilitate the criminal. If the criminal is a product of the totality of influences that pervade our social structure, it does not follow that society must remain incapable of doing anything with him. The criminal is a product of the community, and his own criminal gang is part of the whole community, natural and logical to it; but it is only a part of it. In that lies the hope that the rest of the community can do something with the gang as such. It would probably be too much to expect that we can do a great deal to the criminal groups in our society without doing a considerable amount to the other elements in our social organism. We cannot seriously change the incidence of crime in American life without changing our police, our politics, our morals, our values. But the process of doin^ something with the criminal is one way of doing something to the rest of the social organism. There is no reason to assume that in dealing with the criminal we are dealing with something extraneous. We are really dealing with all of society even when we begin dealing with the problem of crime. What is true of the pattern of criminal life is true also of the various social and political agencies that have grown up around the attempt to deal with the problem of crime. They too are part of the whole, and an attempt to revise them involves by indirection an attempt to revise all the social and political agencies, because in one way or another they all affect the judicial and the penal institutions. This book as it stands is largely negative so far as offering an alternative way of dealing with the problems raised in the discussion is concerned. One thing is clear, that what we do now is wrong, perhaps completely wrong. We have failed to reform the criminal. In plain honesty we ought to admit that in what we have been doing we have missed our ends. The criminal career, once set upon, has apparently defied our efforts to redirect its energies into more social paths. This has been clear for a long time to all persons really concerned with the

W H A T OF T H E F U T U R E ?

475

problem in its deeper significance. We have long known that arrest, trial, and imprisonment have had little bearing upon turning a criminal into a law-abiding citizen. W e have recently been taught that even in the case of children, and even with such a sympathetic and intelligent social agency as the Boston Juvenile Court, the effort to redirect the way of life has broken down. Y e t it cannot be that human intelligence and sympathy must surrender in the face of a pattern of life that is antagonistic to it. T h e trouble lies perhaps in a wrong analysis of the problem itself and therefore in a wrong way of dealing with it. It is, I think, no exaggeration to say that our entire punitive and rehabilitative efforts have gone wrong because they mis-stated their problem. The assumptions both of those who would reform and of those who would punish have been these: i. T h a t the criminal is an individual and can be dealt with as an individual. If anything is clear in this analysis, it is that the criminal is a member of a group and that the group and not the individual is the source of the problem. T h e only way to reach the criminal is to reach his group. It is the group that sets the pattern, provides the stimulus, gives the rewards in glory and companionship, offers the protection and loyalty, and, most of all, gives the criminal life its ethical content without which it cannot persist. T o offer to reform a criminal by tearing him out of his own value-giving environment, depriving him of those elements of life that give him a sense of security as well as personal moral status, without making him part of another group which provides an equally genuine essential base of existence, and one which he recognizes and is capable of responding to, is to attempt the impossible. All such efforts have broken down and must continue to break down. If the criminal is to change the pattern of his ways, then the group from whom he takes the content of meaning for his activities and from whom he expects and receives recognition must change its expectancies from him. The day when the group expects a different way of life from the criminal and offers rewards for a different pattern of behavior, that day will the criminal begin responding to the new stimuli and begin gradually even if unconsciously forging a new habit pattern. But all this, even if true, does not lead to a positive suggestion. Perhaps not. B u t it is enough to say that in the future our attack must be not upon the individual but upon the scheme of values of the group that provides the individual with his moral support for his career of crime. W e need a new set of techniques here.

476

CRIME AND THE COMMUNITY

2. We have all assumed, for a long time, that removing the individual criminal and congregating him with a lot of other criminals in some institution—reformatory, penitentiary, prison—to reform or punish, was a way of changing the pattern of his life. T h a t assumption in itself had its assumptions: that education came from the outside; that in some way the judgment of the larger world uttered in authoritative terms and enforced with iron and steel would be strong enough to overcome the inner urge, the inner values, the ingrained habits of criminal life, which rested upon long experience. That too has broken down. And we have known for a long time that it has broken down. We have done little if anything about it, however, because the alternative techniques are not clear, and probation and parole are alternatives that we have developed in a small and halting fashion. The real difficulty with the procedure of imprisonment is that it congregates a lot of criminals whose entire web of emotional and social life together, in so far as they have such a life, is in terms of their careers as criminals. It would be difficult to invent a more effective method for conditioning the criminal in his career than imprisoning him with some hundreds of other prisoners, each of whom has a tale of adventure, of pride, of success and of failure, of ends and plans, all in terms of the past career as a criminal and in terms of a future career in the same field. It is only opaqueness on the part of educators that could make such a technique possible. The way to confirm the criminal in his career is to throw him with other criminals for a long enough time for him to become thoroughly saturated with all their emotional and ethical insights into the ways of the world, and long enough for him to share, vicariously at least, in the criminal experiences of all his new-found friends in prison. It is only a queer assumption that human nature is changed at will, by mere formal and external pressure, that has made possible the invention or the continuance of the method. Here again we need a new set of techniques. What these techniques ought to be is another question. It may even be that no completely satisfactory substitute can be devised. But probation and parole are indications of new attempts. Others are probably feasible. Anyway, we ought to agree that what we are doing by imprisonment is making sure that the criminal continue his career by providing him with an intensified stimulus and heightened experience. 3. There is also implicit in the technique that we have developed the idea that public condemnation is effective condemnation. This is involved in the entire court procedure. What we have missed is that the judgment of the world at large is of minor importance. What is im-

WHAT OF THE FUTURE?

477

portant is the judgment of the group, the professional group, the faceto-face group, the limited universe that really gives meaning to the life the person lives. All the judgment of the outside world is generally irrelevant, and is often important only as giving added prestige to the criminal under condemnation. The attempt to carry out public judgment has one very serious consequence. The very processes of arrest, trial, and conviction have a dramatic quality which in effect tends to distort the personality of the criminal in the direction the drama takes. The very emphasis upon the evil tends to make the evil greater and the evil-doer more self-conscious as an evil-doer. If we wished to make a criminal out of anyone, no better method could be devised than to dramatize and herald his activities in the way we are doing. It not only conditions him towards an estimate of himself; it sets the attitude of his fellows and forms on the part of the world at large a basis of judgment that makes change on his part proportionately more difficult. This is especially true in the early days of the career. No more self-defeating device could be discovered than the one society has developed in dealing with the criminal. It proclaims his career in such loud and dramatic forms that both he and the community accept the judgment as a fixed description. He becomes conscious of himself as a criminal, and the community expects him to live up to his reputation, and will not credit him if he does not live up to it. Here again we need some new techniques, or rather a complete reconsideration. The very court procedure is involved. 4. Our judicial and penal process is saturated with the assumptions not merely that crime is individual but also that it is evidence of an evil nature. The criminal law has at its base the assumption of deliberate choice to do evil by a being who knows better. It further assumes that the extent of the evil can be measured. The entire classification of crimes and punishments derives from these assumptions. The process breaks down if we repudiate the individualistic base of crime. It further breaks down if the criminal fails to recognize his ways as e v i l — f o r sufficient conditioning makes it impossible for him to agree in the public judgment—and accepts the punishment as one of the risks of the life he lives. What the alternative here is, in the matter of procedure, is again a question for consideration. But to go on as we have for all these years formulating artificial definitions of types of crime and then setting up artificial balancing negative judgments—certain numbers of years in prison—is to continue in a social procedure that has little to be said for it. It is merely a furthering of the career that we would change.

478

C R I M E AND T H E COMMUNITY

Certain recent modifications in court procedure—expert witnesses, friends of the court, probation officers making reports before judgment — a r e new departures; but we need a complete challenging of the very method of definition and judgment. Here again new techniques are required. But before we can think of devising them, we must first find the basis upon which they are to be devised. 5- As part of the technique of definition and adjudication of the criminal act, we have blithely assumed that punishment for evil has a good outcome. Somewhere there is the assumption that by doing evil to evildoers we shall achieve good ends in the person so treated. Every experience in American prisons and with American prisoners proves the opposite. There is not a shred of evidence that punishment—severe or mild, with good intentions or bad ones—has beneficial effects on the future lives of the men punished. If experience proves anything, it proves the opposite. It proves that evil, even when done in a good cause, has evil consequences. All that we know about prisons indicates that punishment merely confirms the criminal in his career. There is implicit in our procedure, of course, the old Benthamite assumption that pain and pleasure can be balanced off at some equitable point. The assumption is false and is derived from a false reading of human nature. Punishment does not reform. It does not alter the criminal who is already formed, nor does it act as a deterrent upon others who are thrown in the way of crime by the subtle incidence of companionship, habit, appetite, judgment, and opportunity. If we have learned nothing else from our experience, we have learned that to send a criminal to prison is almost to make certain that we shall have the task of sending him again, after his release. The why and how of this effect we have analyzed in another part of this book. What then is the alternative ? That remains a question for analysis and study. The present method of punishment is an empty and expensive exercise in futility, ending only in chagrin and bitterness and further crime and further punishment. We need an alternative to punishment. In a measure this is true also of the attempts to reform; for in so far as the person to be reformed is set off from the doer of the good deed, to that extent does the latter fail to bridge the gap between the criminal and himself. The problem is subtle and complex. We cannot do good to the evil-doer either by doing evil or by merely doing good.

INDEX OF A U T H O R S

ABBOTT, E D I T H , 49, 2 6 g , 287 ADAMIC, LOUIS, 39, 4 9 ADAMS, JAMES T R U S L O W , 4 9 , 1 5 6 , 1 7 2 •\DLER, MORTIMER J . , 2 1 8 A H E A R N , D A N N Y , 99, 1 0 1 , 126, 134, 1 6 3 , 1 7 2 , 184, 1 8 7 , 188, 190, 192, 194 A l a b a m a State Board of Administration, 382, 384 ALGER, G . W . , 4 5 0 A L L E N , FREDERIC C . , 3 2 9 A L L E N , TREVOR, 1 9 4 ALLPORT, FLOYD H . , 4 9 American Eugenics Society, 7 A m e r i c a n L a w I n s t i t u t e , 267, 285, 287 American Medical Association, Journal o f , 213 ASBURY, HERBERT, 1 2 6 A T K I N S , WILLARD E . , 4 9 BAKER, N E W M A N F . , 256, 258, 268 BALDWIN, D . E . , 267 Baltimore Criminal Justice Commission, 467 BARNES, H . E . , 3 2 1 BATES, SANFORD, 4 4 8 , 4 5 3 , 4 6 9 BEATTIE, RONALD H . , 268 BECCARIA, CESARE, 4, 23 BEELEY, A R T H U R LAW TON, 2 7 1 , 280, 287 BEESLEY, T H O M A S Q . , 127 B E N N E T T , JAMES V . , 300, 3 2 1 , 400 BERG, L O U I S , 4 4 5 , 4 5 3 B E R K M A N , ALEXANDER, 343 BERMAN, L O U I S , 23 BEST, HARRY M . , 267 B E T T M A N , 2 6 1 , 262, 263, 267, 274, 2 7 9 , 284, 285 BLACK, J A C K , 1 7 4 , 1 8 3 , 1 8 8 , 1 9 4 , 343 BLANCHARD, P H Y L L I S , 2 1 0 B L I T C H , J . S . , 309 BOETTIGER, J O H N , 1 2 7 BOGARDUS, EMORY S . , 81 BOOTH, E R N E S T , 1 9 4 BOTEIN, B . , 23 BRAMER, J O H N P . , 4 5 3 BRANHAM, V . C., 363 BREWSTER, S . W . , 3 0 9 BRIDGES, K A T H E R I N E M . B . , 8 1 BROCKWAY, Z . R . , 3 2 1 , 3 4 3 BRONNER, AUGUSTA, 6 5 , 7 1 BROOKS, ROBERT C . , 4 9 BROWN, L . G . , 404, 406

BROWN, R . M . , 3 2 2 , 4 0 1 BRUCE, ANDREW A . , 264, 308, 3 1 6 , 3 2 1 , 335, 372, 447, 4S3 BRUCE, C H A R L E S L . , 1 2 7 BURGESS, E . W . , 264, 308, 3 1 6 , 3 2 1 , 335, 372, 447, 453 B U R T , C Y R I L . 81 BUTLER, A . W . , 453 California State Board of Prison Directors, 4 1 1 CANTOR, N A T H A N I E L , 23 C H A F E E , Z . , 1 9 2 , 1 9 5 , 2 7 2 , 2 7 3 , 287 CHAMBERLAIN, RUDOLPH W . , 433 C h i c a g o C i t y C o u n c i l , C o m m i t t e e on C r i m e , 88, 99, 103, 1 2 7 , 1 5 1 , 1 5 7 , 162. 163, 266 C h i c a g o P o l i c e D e p a r t m e n t , 1 7 2 , 230, 252 Chicago Tribune, 104 C H U T E , C H A R L E S S., 4 6 0 Citizens' Police Committee, 1 1 5 , 1 2 7 , 1 5 5 , 1 5 6 , 160, 1 7 2 , 223, 228, 229, 238, 245, 2 4 7 , 249, 250 CLAGHORN, KATE H . , 4 g CLARK, CHARLES L . , i g s CLARK, DONALD H . , 1 5 1 CLARK, W I L L I A M LAWRENCE, 2 7 7 , 287 C l e v e l a n d F o u n d a t i o n , 243, 244, 253. 262, 267, 270, 2 7 7 , 287 C O L Q U H O U N , PATRICK, 1 2 7 C o m m i s s i o n of I n q u i r y on Public S e r v i c e P e r s o n n e l , 234, 239, 253 CONBOY, M A R T I N , 127 Cook County Adult Probation D e p a r t ment, 466 COOLEY, EDWARD J . , 4 7 2 COOPER, COURTNEY RYLEY, 446, 4 4 7 , 4 : 3 CRAPSEY, EDWARD, 1 5 1 CRAWFORD, F . MARION, 1 2 7 DAVIS, J A M E S J . , 3 7 1 DAVISON, ROBERT L . , 3 2 1 DEARBORN, WALTER F E N N O , 208 D E L O N G , EARL, 2 5 6 , 2 5 8 , 259, 267 D E QUIROS, B . , 23 D E W E Y , J O H N , 20, 22, 23 D I L N O T , GEORGE, 1 7 2 DOUGLAS, P A U L H . , 4 9 E L L I S , HAVELOCK, 5, 23 E s s e x C o u n t y P r o b a t i o n D e p a r t m e n t . 466 E U B A N K , EARLE E . , 1 9 5

480

CRIME

AND THE

187, 188, 190, 192, 19s, 262, 264, 268, 275, 276, 282, 303, 306, 308, 3 1 6 , 335,

FELSTEAD, SIDNEY T . , 1 2 7 , 268

FERRI, E., 23 FIELD, A N N E P . L., 3 4 3 FISCHER, GUSTAVE F . , 262 FISHMAN. JOSEPH F., 3 2 1 FLYNT, JOSIAH, 1 2 7 , 1 5 1 FORBUSH. WILLIAM B . , 8 1 FOSDICK. RAYMOND B . , 1 7 2 , 2 2 6 , 2 3 2 , 2 3 3 , 23S- 237, 243. 2 5 1 . 2 5 3 FRANKFURTER, FELIX, 4g FREEMAN, FRANK N . , 207 FRY, HENRY P., 49 FULD, LEONHARD F E L I X , 1 7 2 , 2 3 6 , 2 5 3 FURFEY, PAUL H., 8 1 GAROFALO. R A F F A E L E , 2 3 GARRETT, E A R L E W . , 1 3 4 , 1 5 3 , 1 5 4 ,

235,

236, 237, 238, 240 GAULT, ROBERT H . , 23 GIARDINI, GIOVANNI, 2 3 GILLIN, JOHN L., 23 GLOVER, F . , 1 7 2 G L U E C K , BERNARD, 2 1 0 , 2 1 1 , 2 1 3 , 2 1 8 G L U E C K , SHELDON a n d E L E A N O R T . , 7 1 ,

3 2 1 , 335, 336, 343. 447 GODDARD, H E N R Y H . , 6 , 2 3 , 2 0 5 , 2 1 8 GOLDMAN, M . C . , 2 6 7 , 2 6 8 GORING, C H A R L E S B . , 2 3 , 1 9 9 , 2 0 0 , 2 1 8 GOSNELL, H . F . , 1 5 1 GRAPER, E L M E R D . , 1 7 2 GRIMBERG, LEIZER E . , 23 GROOME, J O H N C . . 3 3 9 GROVES, E R N E S T R . , 2 1 0 , 2 1 8 G U E R I N , EDDIE, 1 9 5 HADLEY, HERBERT J . , 254 HALL, JEROME, 49, 8 1 . 1 2 7 , 1 5 1 . 1 7 2 , 268 HALPERN, IRVING, 23 HARNO, A . J . , 2 6 4 , 3 0 8 , 3 1 6 , 3 3 5 , 3 7 2 ,

447 HARRISON, LEONARD V . ,

172,

COMMUNITY

231,

232,

234, 239, 240, 244, 246, 248, 250, 2 5 1 , 253 HART, HASTINGS, 3 2 1 , 3 4 3 H A R T W E L L . S A M U E L WELLARD, 8 1 HEALY, JOHN J . , 262, 268, 275, 282 HEALY, WILLIAM, 65, 7 1 , 8 1 , 202. 2 1 8 HITCHCOCK, CURTICE N . , 49 HOOVER, J O H N EDGAR, 1 0 3 , 1 2 7 HOPKINS, ALFRED. 3 2 1 HOPKINS, ERNEST JEROME, 270, 2 7 1 , 287 H O S T E T T E R , GORDON, 1 2 7 HOWARD, P E N D L E T O N , 2 6 8

Illinois Association for Criminal Justice. 2 1 , 44, 49. 7g, 8 1 , 95, 96, 97, 98, 127. 1 3 1 , 132, 157, 158, 159, 172, 180, 185,

337, 3/2, 447, 453

Illinois Prison Inquiry Commission, 293, 296, 298, 3 0 1 , 304, 306, 307, 3 1 6 , 3 2 1 , 3 3 3 , 343, 345- 363, 4 ° 9

Indiana Conference on Observance and Enforcement of Law, 2 1 1 , 218, 258, 268, 469, 472 Institute of Public Administration, 251 Iowa State Penitentiary, 328 I V E S , GEORGE, 3 4 3 JACKSON, HARRY H . , 3 8 3 JENNINGS, A. J., 343 JENSEN, A. L., 438, 442, 453, 472 JOHNSEN. J . E . , 287 JOHNSON, GEORGE E . Q., 1 0 9 JUDGES, ARTHUR V . , 1 2 7

Kansas State Board of Administration, 349 KENYON, WILLIAM J., 1 3 3 K I R C H W E Y , GEORGE W . , 3 1 K L E I N , PHILIP, 332, 343, 363, 368, 4 0 1 KRETSCHMER, ERNEST, 2 0 2 , 2 1 8 K U R E L L A , H A N S , 5, 23 LAIDLER, HARRY W . , 39, 4 9 LANDESCO, J O H N , 9 5 , 96, 9 7 , 98, 1 3 1 ,

132,

158, 180, 185, 187, 188, 189, 190, 1 9 1 , 192, 193, 308, 3 1 6 , 335, 372, 447 LANE, WINTHROP, 447, 450, 4 5 3 LASHXY, ARTHUR V., 127 LAUCK, W. JETT, 3 9 1 LAVINE, EMANUEL, 1 5 1 LAWES, LEWIS E . , 1 1 7 , 1 2 7 , 343 LEE, WILLIAM L. M., 172 L E K K E R K E R K E R , E U G E N I A CORNELIA, 4 6 .

48,49,321 LEWIS, BURDETTE G., 3 7 2 , 3 8 7 L E W I S , LLOYD, 5 0 LEWIS, 0 . F., 343 L I C H T E N S T E I N . PERRY, 23 LIECK, ALBERT, 1 7 2 LIEPMANN, M.. 320, 3 2 1 , 343, 433 LINDSEY, E., 4 5 3 LIPPMANN, WALTER, 127 LLEWELLYN, KARL, 265. 268 LOMBROSO, C E S A R E , 2 3 , 1 9 8 , 2 1 8 LOWRIE, DONALD, 3 4 3 LYNCH, DENIS T „ 1 5 1 MCCON'AUCHY. JOHN, 1 2 7 MCCORD. CHARLES H.. ;O MACCORMICK, AUSTIN H., 3 1 0 . 3 1 1 ,

321. 4!6

31:.

INDEX

OF

MCDOLCALL. ERNEST D., 127 MCGOORTY. J O H N P . , 1 0 4 M C K A Y . H E N R Y D . , 44, 54, 5 6 , 58, 5 9 , 60,

6 1 , 62, 63, 64, 65, 66, 69, 88, 90. 93, 1 2 3 - 1 2 5 , 1 8 1 , 183, 185. 189, 190 MCKELVEY, BLAKE, 321 MAXINOWSKI, BRONISLAW, 5 0

Massachusetts Commission on Probation, 172, 467, 472 Massachusetts Commissioner of Correction, 284, 287, 3 1 5 , 3 6 1 , 387, 389, 4 1 3 , 414, 4 1 5 Massachusetts Special Crime Commission, 245, 253, 255, 263, 268 Massachusetts State Reformatory, 330 MATHESON, DUNCAN, 249 MAYO, KATHERINE, 1 7 2 M E C K L I N . JOHN M . , 50 M E R R I A M , C H A R L E S EDWARD,

35,

50,

151 MICHAEL, JEROME, 2 1 8 MILLER, JUSTIN, 268

Missouri Association for tice, 238, 239, 248, 2 5 1 , 258, 262, 264, 268, 278, Missouri Department of tions, 337, 352

Criminal Jus253. 254, 257, 279, 287 Penal Institu-

M O L E Y , RAYMOND, 2 3 , 1 2 7 , 1 5 1 , 2 6 1 , 2 6 6 ,

267, 268, 272, 274, 276, 278, 279, 280, 282, 287

MONACHESI, E . D . , 4 7 2 MONROE, DAVID G . , 1 3 4 , 1 5 4 ,

155,

235,

236, 237, 238, 240 Montana State Crime Commission. 3 1 0 3 1 1 , 402, 403 MOORE, M . E . , 8 1 MORRIS, A L B E R T , 2 3 MORSE, W A Y N E L Y M A N , 2 6 8 MOWRER, E R N E S T R . , 5 0 MULROONEY, EDWARD P . , 1 0 4 M Y E R S , E A R L D . . 2 1 , 79 M Y E R S , GUSTAVUS, 1 5 1

National Commission on Law Observance and Enforcement. 5. 44, 54. 55, 56. 58, 59, 60, 61, 62, 63, 64, 65, 66. 6q. 88. 90, 93, 123, 133, 134, 154, 155, 159, 1 8 1 , 1 8 3 , 185, 188, 189, 190, 192, 196, 198, 201, 205, 206, 208, 209, 2 1 1 , 214, 2 1 5 , 2 1 6 , 217, 235, 236, 237, 238, 240, 260, 262, 263, 272, 273, 274, 282. 444, 453, 466 National Committee for Mental Hygiene, 2 1 1 , 2 1 3 . 219 National Crime Commission, 1 0 1 - 1 0 2 , 127 National Recovery Administration, 391

481

AUTHORS

National Society of Penal Information, 3 1 8 . 332. 333. 370, 374 NELSON, VICTOR, 1 9 5 , 3 4 3

Nevada State Prison, 329 New Castle County Workhouse, 341 New Jersey Prison Inquiry Commission, 309, 3 2 1 New Y o r k City Police Department, 43, 93, 1 1 7 . 172, 176, 248, 269 New Y o r k County Association of Grand Jurors, 127, 279, 287 New Y o r k County Court of Special Sessions, 468 New York Herald Tribune, 187 New Y o r k State Commission of Correction, 297, 3 1 3 New Y o r k State Commission to Investigate Prison Administration and Construction, 363, 4 1 6 New Y o r k State Crime Commission, 8. 9, 10, 13, 14, 16, 57, 58. 60, 67, 68, 70, 88, 1 1 8 , 120, 1 2 1 , 126, 227, 238, 243. 247, 2 5 1 , 255- 307, 3 1 0 , 326, 385, 386, 403, 467 New Y o r k State Department of Correction, Probation Division, 466, 467 New Y o r k State Legislature, Assembly Committee to Investigate the Causes of Crime, 1 6 1 New York State Prison Commission. 5 1 0 New Y o r k [State] Prison Survey Committee, 370, 378, 379, 383 New Y o r k State Probation Commission. 465 New York State Supreme Court, see Seabury, Samuel New York Times, 36, 42, 85, 86, 89. 01, 92, 95, 103, 104, 105, 108, 109, I i o l i 5, 1 1 7 , 120, 130, 134, 149, 155, 156, 176, 201, 3 1 5 , 4 5 1 Newark Evening News, 160 O'DARE. KAIN, 1 9 5 O ' H A R E , K A T E RICHARD, 3 2 2 , 3 4 3

Ohio Department of Public Welfare, 349, 352 OLSON, H A R R Y , 2 1 1 OREBAUGH, DAVID, 5 0 OSBORNE, T H O M A S MOTT, 3 2 2 , 3 4 3 , 4 3 3

Osborne Association, 298, 305, 307, 322. 3 3 3 , 343, 362, 401, 4 1 6 OWINGS, C H L O E , 1 7 3 PARSONS, P H I L I P ARCHIBALD, 5. 8. 23 P A S L E Y , FRED D . , 1 2 7 P E Y S E R . NATHAN, 3 1 3

Philadelphia

Public Ledger,

170

482

CRIME AND THE COMMUNITY

PLOSCOWE, M O R R I S , 5 , 2 3 , 1 9 6 , 1 9 8 , 2 0 1 , 205, 206, 208, 209, 2 I I , 2 1 4 , 2 1 5 , 2 1 9 POLLAK, W . H . , 1 9 2 , 2 7 2 , 2 7 3 POUND, ROSCOE, 4 , 2 4 , 3 ° , 3 3 , 4 5 - 4 8 , 5 ° , 1 3 3 , 1 3 8 , 1 5 1 , 268 PRATT, P . E . , IOI Prison Industries Reorganization Administration, 297, 298, 300, 3 0 2 , 3 1 0 , 3 1 7 , 3 2 1 , 3 5 1 , 3 7 5 , 3 8 1 , 3 8 3 , 3 8 7 , 4 ° i , 409, 412 RECTOR, F R A N K L . , 3 0 2 , 3 5 0 , 3 6 3 REID, IRA D E A . , 50 R E U T E R , EDWARD BYRON, 5 0 R I C H B E R G , DONALD R . , 3 6 RIPLEY, WILLIAM Z., 50 ROBERTS, T H E L M A , 1 9 5 ROBINSON, LOUIS N . , 3 8 4 , 4 0 1 ROOT, W I L L I A M T . , J R . , 7 S A L E I L L E S , RAYMOND, 2 4 SALTER, J . T . , 1 2 7 , 1 5 1 , 1 7 2 S C H L A P P , M . G . , 6, 2 3 , 2 0 1 , 2 0 2 , 2 1 9 SCHULMAN, HARRY, 4 4 5 SCOTT, WELLINGTON, 1 9 5 SEABURY, SAMUEL, 1 3 6 , 1 3 7 , 1 3 8 , 1 3 9 , 140, 1 4 1 , 143, 144, 145, 146, 147, 148, 1 4 9 , 1 5 0 , 1 6 2 , 1 7 1 , 266, 267, 279, 280, 2 8 1 , 287 SHALLOO. J E R E M I A H P . , 1 7 3 SHARPE, MAY CHURCHILL, 1 9 5 S H A W , CLIFFORD R . , 2 1 , 2 3 , 4 4 , 5 0 , 54, 5 5 , 5 6 , 5 8 , 5 9 , 6 0 , 6 1 , 6 2 , 6 3 , 64, 6 5 , 66, 6 9 , 7 2 , 7 3 , 78, 79, 8 1 , 88, 9 0 , 9 3 , 1 2 5 , 1 2 7 , 1 8 1 , 183, 185, 188, 189, 190, 195 S M I T H , ALFRED E . , 3 8 9 S M I T H , BRUCE, 1 7 3 , 2 2 3 , 224, 226, 237, 247 S M I T H , EDWARD H . , 6, 2 3 , 2 0 2 , 2 1 9 SMITH, H . S., 50 S M I T H , REGINALD H . , 2 6 7 , 2 6 8 STANISLAUS, J . , 23 STEINER, J E S S E F . , 3 2 2 , 4 0 1 STERN, C. S., 1 9 2 , 272, 2 7 3 STODDARD, LOTHROP, 1 5 2 SULLENGER, THOMAS E . , 8 1 S U L L I V A N , EDWARD D . , 1 2 7 , 1 5 2 SUTHERLAND, EDWIN H . , 2 3 , 2 1 0 , 3 6 8 , 369, 3 7 3

TANNENBAUM,

FRANK,

193,

194,

391,

433 T E R R E T T , COURTENAY, 1 2 7 T H O M A S , GEORGE, 4 3 8 , 4 4 2 , 4 5 3 , 4 7 2 T H O M A S , W I L L I A M I . a n d DOROTHY S . . 5 3 , 66, 72, 77, 8 1 , 1 5 6 , 1 9 7 , 2 0 3 , 206, 2 0 7 , 208, 2 1 2 , 2 1 3 , 2 1 4 , 2 1 9 T H R A S H E R , FREDERIC M . , 9, 1 0 , 3 7 , 4 3 , S3, 58, 64, 68, 72, 84, 93 TIBBETS, CLARK, 454 TRAIN, ARTHUR CHENEY, 268 TROUGHT, T . W . , 4 7 3 ULMAN, JOSEPH N . , 3 9 0 United States Bureau of the Census, 454, 470 United States B u r e a u of F o r e i g n and Domestic Commerce, 401 U n i t e d S t a t e s B u r e a u of P r i s o n s , 3 5 8 , 4 0 1 , 406, 407, 408, 4 5 4 United States Commission on Industrial Relations, 38 VAN WATERS, MIRIAM, 50 V i r g i n i a S t a t e C o m m i s s i o n to Study Prison Sentences, 438, 454 VOLD, GEORGE B . , 4 4 7 , 4 5 4 VOLLMER, AUGUST, 1 3 4 , 1 5 2 , 1 5 3 , 1 5 4 , i 5 5 , i 5 7 , 1 5 8 , 159, 1 7 3 , 234, 235, 236, 2 3 7 , 238, 240, 253 W A L E S , B . ROGER, 2 8 0 WATSON, FREDERICK, 5 0 W h i t e - W i l l i a m s F o u n d a t i o n , 14, 23 W H I T I N , E . STAGG, 3 8 4 W I L C O X , CLAIR, 4 4 2 , 4 4 4 , 4 5 4 W I L L I A M S , J . HAROLD, 2 0 5 , 2 1 9 WILLOUGHBY, WILLIAM F., 282 W I L S O N , MARGARET, 3 4 3 WINNING, JAMES R . , 3 4 3 Wisconsin State Prison, 4 1 1 , 4 1 2 Wisconsin State R e f o r m a t o r y , 330 WOODS, A R T H U R , 1 7 3 YOUNG, KIMBALL, 2 1 9 YOUNGMAN, ANNA, 50 ZNANIECKI, F., 5 0 ZORBAUGH, HARVEY W . , 5 0

INDEX OF SUBJECTS

abnormality and crime, 6, 7 absolutism, 3, 7 age, of criminals, 1 1 6 - 1 1 7 , r 2 o ; of prisoners, 323 anthropology, criminal, 4, 5, 198-201, 202-203 areas of delinquency, 217 arrest, role o f , in delinquent career, 16, 1 7 ; psychological effects of, 19-20, 7 0 71, 475, 4 7 7 ; statistics on, 147, 269, 270; rules o f , 271 arson, 89 attiiudes of criminal, 66, 69, 82-87, 1 7 4 ; toward world, 1 7 1 , 179, 186; role of, in career, 1 7 6 - 1 7 8 ; toward police, 1 8 0 181, 1 9 2 - 1 9 3 ; on gang loyalty, 1 8 4 186, i g o - 1 9 2 ; toward law, 1 8 7 - 1 8 8 ; toward criminals, 1 8 8 - 1 8 9 ; and prison education, 405; see also philosophy of life of criminal; code (criminal) bail, 104; definition of, 277; administration of, 2 7 7 - 2 7 8 ; failure of, 279-281 bargaining, 263-264 behavior ( c r i m i n a l ) , 3 ; meaning o f , 8 1 1 ; origin o f , 9, 1 1 , 1 2 ; and suggestion, 20; explanation o f , 22, 218; pattern of, 102, 405, 406, 4 7 s ; underlying assumptions o f , 177, 178; studies of, 203-204; in prison, 325, 338, 356, 456-457 Bertillon, 251 bondsman, 103; and politics, 1 4 1 - 1 4 3 , 149; operations o f , 278-279, 280 career ( c r i m i n a l ) , 18; as normal w a y of life, 2 1 ; role of intermediary in, 51, 6 3 - 6 5 ; genesis o f , 5 3 - 5 4 ; development of, 5 4 - 6 2 ; role of group in, 5 7 ; as means of livelihood, 82, 86-87; habit in, 82-83, 126; arrest as interlude in, 85; influence of imprisonment on, 80, 476; description of, 1 1 6 - 1 2 6 ; role of philosophy of life in, 1 7 7 ; process of learning in, 2 1 8 - 2 1 9 cell, 2 9 4 - 2 9 6 ; effect on health of, 3 0 1 ; for punishment, 331, 333 church, 12 Civil Service, 237-239, 243-246, 249 Classical School, 4 classification, see prison population, classification of

c o d e ( c r i m i n a l ) , 172, 176, 1 9 3 - 1 9 4 ; in prison, 326 conduct, 11 ; see also behavior confinement, see imprisonment conflict, of criminals and society, 8—9, 66, 77, 1 9 2 ; in development of j u v e n i l e gang, 10, 1 5 - 1 6 , 66; in f a m i l y , 1 2 ; bet w e e n child and school, 14, 67 ; b e t w e e n child and c o m m u n i t y , 1 6 - 1 8 , 20, 6 1 62, 70; in A m e r i c a n civilization, 2 5 3 1 ; in urban c o m m u n i t y , 3 1 ; in industrial history, 3 6 - 4 2 ; in mores, 4 2 - 4 5 ; between immigrant parents and children, 4 4 ; in governmental administration, 4 7 - 4 9 ; role o f , in education f o r crime, 6 1 - 6 2 ; between prisoners and institutional authorities, 7 6 - 7 7 , 7 9 ; p s y c h o l o g y of, in criminal's philosophy of life, 179 conflict group, 9 contract system of prison labor, 366; hostility to, 367, 3 7 1 ; abuses under, 3 6 8 369, 3 7 1 - 3 7 2 ; statistics on, 3 6 9 - 3 7 1 ; w a g e s under, 373~375 conviction on plea of guilty, 262-264 corporal punishment, 332 corruption, in urban politics, 3 3 - 3 5 , 1 3 1 138; in law enforcement, 4 6 - 4 7 ; in state government, 1 2 8 - 1 3 0 ; of police, I53~I7ii 245; of parole authorities, 445-446 c o u n t y jails, 320-321 court, inferior, 2 7 3 - 2 7 7 ; and politics, 136-141, 143-146, 147-151 court clerks, appointment of, 1 3 9 - 1 4 0 ; p o w e r s o f , in arrests, 1 4 7 ; as instruments of political influence, 1 4 9 ; relation o f , to bondsmen, 278 crime, definition of, 8; as group phenomenon, 8 - 9 , 20-22, 57, 475 ; causation o f , 22, 49, 197, 1 9 7 - 2 1 8 ; as t y p i c a l of A m e r i c a n life, 25, 49, 128, 1 7 1 - 1 7 2 , 197, 4 7 4 ; genesis o f , in the U n i t e d States, 2 5 - 4 9 ; a n d immigrants, 4 3 - 4 5 ; as social enterprise, 5 7 ; as n o r m a l a c t i v i t y , 5 7 - 6 3 ; as a career, 1 1 6 - 1 2 6 ; and politics, 1 2 8 - 1 5 2 ; logic o f , 1 7 4 178; theories of, 1 9 7 - 2 1 9 crime prevention, 224 criminal (professional), demarcation o f , 3, 7, 1 9 - 2 0 ; characteristics o f , 5 - 6 , 9;

484

CRIME AND THE COMMUNITY

as m e m b e r of group, 8 - 9 , 2 0 - 2 2 , 475; as p r o d u c t of c o m m u n i t y , 2 5 - 4 9 , 128, 171-172;

records

of, 83-86,

88,

8g;

life histories of, 1 2 0 - 1 2 6 ; philosophy of life of, 1 7 4 - 1 9 5 criminal identification, 2 5 0 - 2 5 2 criminal investigation, essentials of, 249; specialization in, 250; scientific m e t h ods of, 2 5 1 - 2 5 2 ; role of prosecutor in, 260-261

criminal j u s t i c e , a d m i n i s t r a t i o n o f , 4 7 - 4 8 ; see also criminal process criminal law, 4 ; p r o c e d u r e of, 2 6 9 - 2 8 7 ; a s s u m p t i o n s of, 477 criminal process, role of police in, 223; inefficiency of, 2 5 4 - 2 5 6 ; role of prosecutor in, 256, 258 ; stages in, 269-287 ; arrest, 2 6 9 - 2 7 1 ; p r e l i m i n a r y hearing, 273-274; grand j u r y , 2 8 1 - 2 8 3 ; j u r y trial, 2 8 3 - 2 8 7 criminal records, 83-86, n 7 - 1 2 0 , 1 2 1 - 1 2 5 criminology, absolutes in, 3 ; assumptions o f , 3, 1 9 7 - 1 9 8 , 4 7 5 - 4 7 8 ; i d e a s of p o s -

session in, 4 ; schools of, 4 - 5 ; scientific developments and, 5 - 8 ; theories of, on causation, 1 9 7 - 2 1 8 defense, counsel for, 2 6 5 - 2 6 7 , 287 delinquency ( j u v e n i l e ) , origin of, 9; dem a r c a t i o n of, 1 7 - 1 8 ; role of arrest in, 19, 7 0 - 7 1 ; as g r o u p p h e n o m e n o n , 2 0 2 1 ; and play, 5 3 - 5 4 ; training in, 59; role of c o m m u n i t y a p p r o v a l in, 6 0 - 6 1 ; life histories in, 1 2 3 - 1 2 5 detective work, 2 4 8 - 2 5 2 education f o r crime, 51 ; elements of, 5 2 5 3 ; role of gang in, 5 3 - 5 6 ; role of group s u p p o r t in, 5 7 - 6 2 ; role of conflict in, 6 1 - 6 2 ; role of i m p r i s o n m e n t in, 7 2 - 8 1 ; and prison discipline, 342; definition of, 402 education in prison, see prison education elections, 1 3 1 - 1 3 3 endocrinologists, theories of, on crime, 6, 2 0 1 - 2 0 2 ,

213

environment as cause of crime, 216, 218 escape as problem in prison discipline, 342, 347, 428, 431 eugenics, 6 family, 1 2 - 1 3 ; living conditions of, 1 4 1 5 ; breakdown of, 3 0 - 3 1 , 4 4 - 4 5

favors, political, 133, 1 3 6 - 1 3 9 , 1 4 7 ; see also politics feeblemindedness, 6, 2 0 4 - 2 0 5 ; statistics o n , 2 1 5 ; in p r i s o n , 3 5 ° - 3 5 i ,

355

ience, 5 1 - 5 2 , 63, 9 9 - 1 0 2

feuds, 180 fight situation, 76 fingerprinting, 251 fraud, insurance, 89

gambling, 95; protection of, 96-98, 147 gangs, genesis of, in play group, 9 - 1 0 ; activities of, 10, 5 7 - 5 8 , 62, 93; influence of, on child conduct, 11; as substitute f o r home, 12; and truancy, 1516; in conflict with c o m m u n i t y , 1 6 - 1 7 , 20; as social relationship, 17; and industrial disputes, 3 7 ; as racial groups, 4 3 - 4 4 ; and fence, 5 1 - 5 2 ; beginning of criminal career in, 53 ; development of career in, 66; role of conflict in, 68; influence of imprisonment on, 72; organization in, 9 3 ; m u r d e r s by, u s u ò ; as political instrument, 1 2 8 - 1 3 4 ; and elections, 1 3 1 - 1 3 2 . 1 3 4 ; revenues of, 1 3 3 ; as conflict groups, 1 7 9 - 1 8 1 ; loyalty in, 1 8 4 - 1 8 5 good time, definition of, 3 3 1 ; loss of, 334; and prison classification, 3 4 5 - 3 4 6 ; and release, 437 grand j u r y , 2 8 1 ; statistics on, 282; elimination of, 283 habeas corpus, 265 habit, 19; stimulus to, 20; definition of, 22, 405 ; operation of, 82-85 ; power of, 126; and criminal attitudes, 1 7 8 ; and causation of crime, 2 1 6 - 2 1 7 ; in prison education, 404-406; and reformation, 475 habit structure of criminal, 2 1 - 2 2 habit system in prison, 457 hard labor, 364 Hawes-Cooper Act, 367, 3 7 1 , 390, 3 9 2 393 idleness in prison, statistics on, 299; cons e q u e n c e s of, 2 9 9 - 3 0 0 , 388

immigration, 26, 2 8 - 3 1 ; influence on crime and politics, 3 4 - 3 5 ; and industrial disputes, 36 ; and law enforcement, 4 2 - 4 3 imprisonment, as stimulus to criminal career, 80, 476; effects of, 338-339, 434, 4 5 5 - 4 5 7 ; versus parole, 434, 4 4 1 ; see also institutions (juvenile) indeterminate sentence, 436, 4 3 9 - 4 4 1 industrialization, 29-32,

33-34

i n f o r m a t i o n as m e t h o d of initiating prosecution, 283 insane prisoners, segregation of, 346J

INDEX OF SUBJECTS classification of, 349-350; hospitals for, 350 insanity and crime, see mental defect institutions (juvenile), effect of experience in, 71-72, 76; sex perversion in. 73—75; attitude of professional criminal toward, 74; discipline in, 77—79 intelligence, and crime, 6; definition of, 207-208 intelligence tests, 203-210 intermediaries, see middlemen judges, see magistrates judicial process and political influence, 128 jury trial, extent of. 283-284; statistics on, 284, 285; waiver of, 284; inefficiency of, 285-286; role of judge in, 286-287 labor, see prison labor labor unions, 36; and prison labor, 387; see also strikes law, breakdown of. 27-28; growth of, 3133; moral code in, 45-46 law enforcement, and immigration, 42; and organized crime. 103. 109 lawyers (criminal), disbarment of, 103104; operations of, 149-150; of criminal gangs, activities of, 265-266 lease system of prison labor, 366 Long, Huey P., 128-130 McNeil Island, education at. 406-408 magistrates, appointment of, 136-138; and gangsters, 141-142; in vice cases, 143; and politicians, 147; role of, in jury trial. 286-287 mental defect as factor in crime, 203-210 migration. 26-27 middlemen, 51-52, 63; role of, in crime, 99-102 modus operandi. 252 morals, regulation of, 45-47 mores, of gang life, 20; in nineteenthcentury America, 28; in static community, 29; in immigrant life, 42, 44; conflicts in, 42-45; and gangs, 53; of young delinquents, 65-66; of large communities, 156 murder, 115 Mutual Welfare League, 424 narcotics, 354-355. 4 2 8 , 429, 4 3 i ; crimes involving, 85-86, 91-92; and prison discipline, 342; and prison classifications, 346

485

National Recovery Administration, 390401 nolle prosequi, 261-262 organized crime, 82; elements of, 87; description of, 87-88, 109-115; specialization in, 88-91 ; police and political connivance in, 95—97 ; ramifications of, 98-99; murder in, 115; youth in, 116-117; and political favoritism, 153156; social character of, 185-186; institutional character of, 196 Osborne, Thomas Mott, 417, 425, 432433 overcrowding in prisons, statistics on, 296; instances of, 297-298; consequences of, 298-299 pardon, 436, 437 parole, and classification by conduct, 345 ; objectives of, 434-435; definition of, 436, 438-441; alternatives to, 436437; as method of release, 437-438, 445-447, 449; administration of, 439440, 442-444; selection of subjects for, 442-444; and politics, 445-448; predictability of success on, 447-448; methods of supervision of, 449-450, 4 5 2 _ 4 5 3 ; administrative personnel of, 450-451 patrolman, function of, 251 penal system, 291-322; see also prison philosophy of life of criminal, 174; war psychosis in, 178, 186-187; fear as source of, 179; loyalty in, 184-185; moral values in, 188-189; conception of world as corrupt, 192-193; reconstruction of, 404 physical factors as cause of crime, 198201 pickpockets, 55-56, 89-90 piece-price system of prison labor, 373375 play group, 9-10; and conflict, 10; and crime, 53 police, 17, 19, 47; and juvenile delinquency, 70; connivance of, at crime, 95-97; chiefs of, 153, 154-155, 234236; corruption of, through political control, 153-172; collusion of, with criminals, 156-158; criminal activities of, 159-172; administration of, 223; functions of, 223-225, 246-252; organization and control of, 225-232; political control of, 226-229; proposed consolidation of, 231-232; personnel problems of, 232-239, 248-249; schools

486

CRIME AND THE COMMUNITY

for, 240-242; disciplinary problems of, 242-244; promotion of, 244-246; practices of, in arrest, 2 7 0 - 2 7 1 ; and third degree, 2 7 1 - 2 7 3 politics, and immigration, 34-36; and police, 47, 1 5 3 - 1 7 2 , 226-227; and crime, 1 2 9 - 1 5 1 ; and trial judge, 1 3 6 141, 287; and prosecutor, 258-259; and prison personnel, 304-306; and parole, 445"447 Positive School, 4 - 5 preliminary hearing, functions of, 2 7 3 274; importance of, 274-275; courts of, 275-276 prison, problems of, 291, 323; function of, 292-293, 305, 402; age of, 293-294, 401; cell block in, 294-296; overcrowding in, 296-298; idleness in, 299300; physician in, 301-303, 353; education in, 3 1 0 - 3 1 1 , 402-415; disciplinary rules in, 323-324. 325, 3 2 8 330; as a community, 324-328, 4 1 2 414. 417-433; offenses in, 329-330, 3 3 5 - 3 3 7 ; classification in, 344-362; labor in, 364-401; occupational distribution in, 370-371; libraries in, 40S409; model, 416, 434; self-government in, 4 1 7 - 4 2 7 ; theft in, 432; release from, 434-438, 458 prison architecture, types of, 293-294, 3 5 7 - 3 6 3 ; effects of, 325; and classification, 347-349, 356, 360; and problem of custody, 357-363; history of, 3 5 7 359; psychological importance of, 362 prison camps, 358-359, 384 prison community, 324; isolation of, 325; equalitarianism in, 326; loyalty in, 327; and warden, 327-328, 338; and labor problem, 378 prison discipline, and youth of inmates, 323, 324-326; breakdown of, 323-324, 337-340, 428-429; role of guard in, 327-328; rules on, 329-330, 340-342; enforcement of. 3 3 1 - 3 3 5 ; infractions of, 3 3 5 - 3 3 7 ; severity of, 338-339; reform of, 340-342; and problem of narcotics, 342, 354, 429; and problem of escape, 342, 427; and violence, 342, 428; and immorality, 342, 428-429; and release, 347; and feeblemindedness, 3 5 1 ; and labor, 378; and selfgovernment, 421-427, 430 prison education, inadequacy of program of, 3 1 0 - 3 1 2 ; and discipline, 342; objectives of, 404-407; at McNeil Island, 406-408; role of libraries in. 408-409; resources for, 409-410; at San Quentin,

4 1 0 - 4 1 1 ; at Waupon, Wisconsin, 4114 1 2 ; at Norfolk, Mass., 4 1 3 - 4 1 4 ; role of group activities in, 4 1 4 - 4 1 6 ; and parole, 441 prison guards, pivotal position of, 306; working conditions, 306-308 ; relations with prisoners, 324, 3 2 7 - 3 2 8 ; and discipline, 336 prison industry, relations with private industry, 371, 373, 376; financial failure of, 377; types of, 387; see also prison labor prison labor, as punitive instrument, 364 ; ideal scheme of, 365; bases for judging systems of, 365-366; lease system 3 6 6, 377; contract system of, 366373; and competition with free labor, 372-373, 376, 387, 39I-3Q2; public account system of, 3 7 5 - 3 7 7 ; public works system of, 3 7 7 - 3 7 8 ; financial failure of, 377-378; relation to classification of prison population, 378, 380383; agricultural, 382-383; state-use system of, 383, 385-389, 397-398, 400; market for, 388-389; program for, 390-401 Prison Labor Compact, 395-396 prison-made goods, opposition to, 364, 391 prison population (classification of), 344345; by work assignment, 345, 371 ; by conduct, 345-346, 347; by health, 346; receiving buildings for, 347-348; the insane in, 349-350; the feebleminded in, 3 5 0 - 3 5 1 ; the tubercular in, 351352; the venereally diseased in, 3 5 2 353; the sex pervert in, 353-354', the narcotic addict in, 3 5 4 - 3 5 5 ; the aged and crippled in, 355; custody as basis of, 356, 357-358, 359-362; social rehabilitation as basis of, 356; program for, 363; and labor, 378-382; by occupational distribution, 380-382 prisoners, numbers of, 292, 296; age of, 323; classification of, 345-363; occupations of, 369-370 probation, as extension of court supervision, 455 ; as alternative to prison, 455-456, 458-459; origin of, 460; laws on, 460-461; selection of subjects for, 462-464 ; officers of, 464-465 ; measure of success in, 466-471 ; failures in, 470471 ; cost of, 471-472 profit motive in crime, 46-47, 62-63, 82 prohibition, 46-47 prosecutor, powers and duties of, 256257; political subservience of, 258-

INDEX OF 259; lack of supervision over, 259-260; in criminal investigation, 260-261; at trial, 261-262; and plea of guilty, 262264; at preliminary hearing, 276-277; and grand jury, 281-283 psychiatry and crime, 6, 22, 210-216 psychopathy, 203, 211-213, 215 public account system of prison labor, 375-377 public defender, 267 public enemies, 255 public works system of prison labor, 377— 378 punishment, theory of, 4, 339, 478; as retribution, 21; labor as instrument of, 364; as means of reformation, 404 punishments in prison, deprivation of good time, 331, 334; dark cells, 331; isolation, 331, 335; lack of relation to offense, 332, 335; procedure of, 334335; solitary confinement, 335; frequency of, 335-336; and contract labor system, 368

SUBJECTS

487

self-government, 417-427 sex perversion, see sodomy social control, 30 social forces, 25-49 social process, 217 social sciences, 7 sociologists, 217-218 sodomy, in juvenile institutions, 73-74; in prisons, 342, 346, 353-354, 4*9 state-use system of prison labor, 385-389 statistics, on law enforcement machinery, 254—255; o n pleas of guilty, 263; on arrest, 147, 269-270; on preliminary hearing, 274; on grand jury, 282; on jury trial, 284, 285; on prisoners, 292; on releases from prison, 437-438, 458 stealing, 54-56, 57, 58 stool pigeons, 142, 143 strait jacket, 331 strike-breakers, 36, 37, 38, 40-42 strikes, 36-37, 38, 39 success, philosophy of, 27-28, 48 suggestion, n , 20 summons, 270, 277 surgery, use of by criminals, 102

racial groups and crime, 42-43 racketeers, 37, 40; in labor, 39; in gambling, 95 rackets, 58-59,190; definition of, 94; and law enforcement, 158; and police, 162 " r a t , " 185-186 rationalism, 4 recognizance, release on, 277 reforestation, 384-385 reformation of criminal, as purpose of prison, 292, 402, 403; obstacles to, 300; failure of, 312, 474; and prison labor, 365-366, 383, 402; and punishment, 404; and parole, 441 reformatory, failure of, 313, 476; routine of, criticized, 313-314; age-grouping in, 315; similarities to prison, 3 1 5 - 3 1 7 ; length of sentence in, 315; for women, 318-319; disciplinary rules in, 329330; frequency of punishment in, 335336 response to stimulus, theory of, 20 riots, 334, 337, 338 road building, 384-385 robbery, 55, 90-91, 92-93

values, 7-8; of young delinquent, 17, 18; role of, in development of personality, 53; change in, requisite to reformation, 475 vice, organized, 97, 133 vice squad and crime, 142-143, 159 violence, in American life, 36-42; fear of, in criminal trials, 105-106; fear of, in prisons, 323-324, 428 vocational education, 310, 3 1 1 ; and industry, 370, 377

Seabury investigation, of magistrates, 136-141; of court officers, 142-147, 1 4 7 - 1 5 1 ; of bondsmen and police, 1 6 1 162, 280-281; of criminal lawyers, 266-267 school system, 1 2 , 1 4 , 1 8 ; see also truancy screen cells, 331

warden, responsibilities of, 305; political selection of, 304; salaries of, 305; and prison discipline, 324, 338; and prison community, 327-328; and contract labor, 368-369; role of, in inmate self-government, 417, 421-424 witnesses, intimidation of, 104-109, 283

third degree, 271-273 truancy, as forerunner of delinquency, 9; causes of, 13-14, 1 5 ; activities during, 15, 69 trusties, 346 tubercular prisoners, 351-352, 355 unemployment, and crime, 216; in prison, 299-300, 388 unitary cause of crime, 197 urbanization, 29-31; effect of, 33