Revival: The Psychology of the Criminal (1933)

Maurice Hamblin Smith

• Publisher: Taylor & Francis
• Year: 2018
• Print ISBN: 9781138555679
• eBook ISBN: 9781351340083
• Edition: 2
• Topic: Psychology
• Subtopic: History & Theory in Psychology
• Index: Psychology

This book is based upon twenty-three years experience in local and convict prisons, and more particularly upon the work done, during the past three years, with offenders from Courts in Birmingham and the adjacent districts.

The main object is to demonstrate how important is the throrough examination of the individual offender, especially in regard to his mentality. It is only by a great extension of this line of investigation that we can hope to solve the problems which criminality presents.

A considerable part of the book is devoted to that new development of psychology which is known as psycho-analysis, and to the possible applications thereof to the investigation and treatment of offenders. The book includes a brief description of the theory and technique of psycho-analysis, so that the reader may not have to look elsewhere for an explanation of technical terms.

THE PSYCHOLOGY OF THE CRIMINAL

CHAPTER I

INTRODUCTORY: THE PROBLEM STATED

I. WHAT WE MEAN BY “CRIMES” AND “CRIMINALS”

THE proper subject of mankind’s study is enshrined in an old and trite saying. And yet students of every science which bears in any way upon man have an apparently irresistible tendency to wander from this, their proper goal. It would be impossible to enumerate all the examples of this tendency. But nowhere is it more strongly marked than in the study of offenders. What should be done to offenders has been the subject of much consideration by the makers and administrators of laws from time immemorial. But the fact that they were dealing with individuals seems to have been practically overlooked, until comparatively recent times. Mediaeval theories on this subject are not much in point at the present day, for they were permeated by the predominance of the idea of “free-will” in its most extreme form. It has been well said that the old idea assumed the offender to be in the position of a fig tree which had wilfully and of malice aforethought decided to produce, not figs, but thistles, and that for this most outrageous conduct he naturally deserved condign “punishment”. There is, however, even at the present time, so much diversity of opinion on the subject of the treatment of offenders that it is necessary to devote a short space to a consideration of what an offender is and of what we mean by “crime”.

Halsbury defines a crime as “an unlawful act or default which is an offence against the public, and which renders the perpetrator of the act or default liable to legal punishment.”¹ (Default is, of course, only defect of action or conduct.) The definition of crime in the legal systems of other countries is practically the same as that just given. Some countries have distinctions between different classes of offences. In this country we distinguish between felonies and misdemeanours, and the French code distinguishes between crime and délit. But with these legal distinctions we are not here concerned.

So crimes are, from the legal point of view, acts which, in the opinion of a particular society, at a particular time, are considered to deserve punishment by that society. Many authorities, Hamon² for example, have, of course, used the term in a sense which goes far beyond this. But we are using the term crime (or offence or delinquency) purely in this legal sense. And it follows that, in this sense, a crime is an act which is legally wrong, and which is, essentially, an infringement of the criminal law. The question as to whether the act is “morally” wrong does not come in. Much confusion has been caused by the use of the word “wrong” without explanation of the sense in which it is used. And the single point common to all criminals is that they have committed acts which are considered to deserve punishment by the society in which they live. This fact alone is enough to make us reject, once and for all, the idea that there is anything which can be called a “criminal type”.

Law is a convention which we adopt for the convenience of what we consider to be a well-regulated society. Ultimately, law bases, as do all forms of government, upon force. And the history of the criminal law is the history of the gradual supersession of private vengeance by public vengeance. As courts of law gradually attained power to enforce their decisions, so they gradually took more of the process of vengeance from the private hands in which it had hitherto lain. By a conventional and quite arbitrary distinction, a line of demarcation has been drawn between crimes and “torts”, the latter being wrongs which render the perpetrator subject to the action of the civil, but not of the criminal, law. Our views as to what particular acts should be considered as crimes are constantly, though slowly, changing. Acts which were formerly crimes are so no longer. New crimes have been created by legislatures. The war caused a number of acts to be regarded as crimes, which in pre-war days were not so accounted. And this for the reason that these acts were, in time of war, considered to be prejudicial to the safety of society. And it is a matter of common knowledge, and sometimes of unfavourable comment, that an act may be a crime in one country and not in another. Attempts are sometimes made to avoid the admission that our selection of certain acts as crimes is arbitrary, by describing such acts as “immoral”, “unmoral”, or “non-moral”, or as being “contrary to the eternal principles of right and justice”. But, in reality, such phrases only “darken counsel by words without knowledge”. Eternal principles of right and justice may exist, but our limited intelligences are unable to discover what these principles are. Just as we can only define the position of a point by reference to some other point, so “right” and “wrong”, “moral” and “immoral”, are terms whose meaning depends upon some standard. Our standard of morality may be one which is set up by some external authority, or it may depend upon the body of tradition handed down from past generations, or it may be the general, average opinion of men of our own time, country, etc. But, however this may be, in any case morality depends upon law, and not law upon morality. And this dependence of morality upon law, upon some standard, requires to be kept in mind.

So much for crimes. And now, since crimes are acts which render their perpetrators liable to legal punishment, we have to consider what “punishment” is.

II. THE VARIOUS THEORIES OF PUNISHMENT

There are numerous theories of punishment. But, ultimately, they can all be reduced to three, Retaliatory, Deterrent, and Reformatory.

(a) Retaliatory punishment is the oldest. “You have hurt me, I will (if I can) hurt you in return” appears to be a fundamental attitude of human nature, and obviously arises from the instinct of self-preservation. In ancient days a man who had injured another man rendered himself liable to vengeance on the part of the injured man (or his family or tribe) if he or they were able to inflict this vengeance. It is most interesting to study the rules laid down for the exaction of vengeance in the Levitical Code. Gradually the conception arose that certain acts were harmful to society, in addition to the injury which they inflicted upon individuals. And the law courts began to take the onus of vengeance from individuals and to administer punishment. Still the idea of retribution was prominent. And this idea seems to be based upon a fundamental instinct of mankind. We have but to watch a child taking his revenge upon some inanimate object against which he has accidentally struck himself to see how primitive this attitude is, and traces of it are even recorded amongst animals and birds. A man has caused injury to society. And man’s sense of “justice” (this being a name for our attempts to rectify the inequalities found in nature) demands that the offender should, in his turn, suffer pain. This idea of retaliation is not popular to-day, and few people will openly admit it. But it is there all the same. And to evade it we are obliged to make “rationalizations”, we talk of upholding the majesty of the law, of maintaining the supremacy of society. But even if, as has been suggested, this idea of retaliation is merely a survival of exploded “animistic” doctrines, there is good reason to think that this theory of punishment will have to be reckoned with for many a year to come. Perhaps it may not be desirable that this view of punishment should be entirely overlooked. But there can be no doubt that the effects of this theory have been, and still are, in many ways, evil. To it we owe the determinate, fixed sentence, which still largely obtains, although in some countries matters are now better ordered in this respect. To release an habitual offender at the end of a fixed term, quite irrespective of the effect which his sentence may have produced upon him, can only be justified on this theory of retributive punishment. And the custom of dealing with “petty” offenders by small fines, mingled with occasional short sentences of imprisonment, can only be explained in the same way.

(b) The Deterrent Theory. Many people will say that this is the true object of punishment. A man has injured society. Means must be taken to prevent his doing this again, and to prevent others who might be so inclined from committing similar acts, by making an example of offenders who have been, or are being, punished. It is objected that, upon this theory, we punish a man for acting as he did act, although, according to deterministic doctrine, his action was the only possible action which could have occurred under the given circumstances. But this objection does not seem to be valid. The knowledge that he may be punished, that he has previously been punished, that other persons are being or have been punished, for doing a similar act, introduces a new circumstance into the case. The man is not in the same set of circumstances as he would have been had the act not involved the possibility of punishment. The expectation, or anticipation, or recollection of punishment may be sufficient to sway the greater inclination against the performance of some particular act. And so the deterrent theory seems quite compatible with the strictest determinism. We shall never be wholly rid of this theory. And what we have to consider is, not whether punishment may deter, but why it is that, under certain circumstances, it does not deter.

There is a strong objection in many quarters to the use of the word “punishment”. This objection seems valid if by that word we imply simply the infliction of retaliatory pain. But we must not be unduly bound by the tyranny of words. If a man’s liberty is in any way restricted by legal authority, against his will, and as a result of any anti-social action on his part, then, ultimately, that is punishment, by whatever name it may be called, or with whatever purpose it may have been inflicted.

(c) The Theory of Reformation. We are inclined, just now, to lay much stress upon this theoiy. And we have apparently decided that imprisonment is not, per se, reformatory. Yet it is an interesting fact that we continue to punish many offences by means of small fines, into which process the idea of reformation cannot possibly enter. It is often said that although punishment may be unpleasant, yet it is necessary that an offender should be punished for the good of society. This argument is really quite beyond the point. If punishment resulted in the good of society, if society were really improved by the punishment of offenders, then this argument would be unanswerable. But this is just the question at issue. Is society any better for the punishment of an offender, or of any number of offenders? The question is really a serious one. For if the individual is not improved by punishment, and if, at the same time, society is not improved, then the sum total is a loss. We are so accustomed to saying that it is necessary to punish, that we often make no inquiries as to the basis of our process or the results which we expect from it.

The idea of reformatory punishment is comparatively new. In days when the majority of offences were punished by death the notion of reformation could not, of course, come in. It is interesting to remark, in passing, that there was the same vigorous objection to the restriction of capital punishment as that which we hear now from certain sources with reference to modern suggestions of other reform. And the arguments used were practically identical with those of to-day. John Howard is generally regarded as the father of reformatory punishment. But this view seems not quite accurate. He was the father of prison reform, the originator of the modern clean and sanitary prison. But this is quite a different matter. Howard’s theory of punishment seems to have been based more on the deterrent idea. He appears to have aimed at preventing a man’s return to prison, by making prison a very uncomfortable place by means of silence, solitude, hard work, and absence of all luxuries. In this connexion we must always keep in mind that prison, like any other institution, can never be, at the best, more than a place in which it is possible to prepare for reform. The real test comes on release.

As we said just above, all attempts at reformation will really be punishment, in spite of the scorn which was poured by Mercier and others upon modern reformatory penal methods. Much attempt at reformation has been made lately, but it has not been as successful as was at one time expected and hoped. Why is this? The reason is that we have not fully investigated our individual offender. We have made but little attempt to probe into his mind. But in the investigation of the individual offender’s mind lies the hope of the future. Other plans have been tried and found wanting. This new plan is seen to be difficult, is seen to involve the abandonment of many cherished superstitions, and so has not been tried. The methods suggested for this most necessary investigation will be fully described and discussed in the next three chapters of this book. We have hitherto been inclined to lay far too much stress on what particular act a man has done, and not nearly enough stress upon what the man is. We shall point out later that conduct is the result of mental life. Any particular act is, at most, only a symptom, and may be quite an unimportant symptom. What we have to do is to discover why a man acts, or has acted, in a particular manner. This involves investigation, and to be of any real value this investigation must be of a thorough and searching character. It is objected by some that the process involved is too elaborate to be applied to small offences. To which we may be permitted to reply, “why small”? We have really no right to say that any one act is “smaller”, or of less importance than another. “Costs it more pains that what you call a great event should come to pass?” What is termed a small offence may contain indications of the very first importance.

III. THE PROBLEM OF RESPONSIBILITY

We can make but little headway in our study of offenders unless we give some attention to this question of “responsibility”. An immense amount of controversy has gathered around this word. And all kinds of theories have been propounded on the subject. The old view, and it is still quite a usual conception, is based upon the metaphysical theory of the “freedom of the will”. It is held, practically, that there is an entity called the “will” which presides over the mind, and which is regarded as the ultimate director of conduct. And it is further held that a man must be required to exercise his will in accordance with certain defined ethical principles. And he is to be accounted as “responsible for his actions”, unless he is incapable (either from mental disease or from mental immaturity) of “knowing right from wrong”. Now this metaphysical theory, in the author’s opinion, has no place in any scientific scheme. We cannot, in such a scheme, recognize “will”, apart from individual volitions. The phenomena of volition, like all other natural phenomena, are subject to natural laws. And the phenomena of volition are always caused by their antecedents, heredity, education, and all the factors and influences of previous experiences and environment. (Of course, as we pointed out just now, the remembrance, or the prospect of the possibility, of punishment may be one of the factors in the case.) We cannot think, scientifically, of an uncaused psychical phenomenon, any more than we can think of an uncaused physical phenomenon. And any phenomenon, whether physical or psychical, is the only one which could have been produced by the circumstances of the case. We are therefore obliged to discard this particular theory of responsibility. And we cannot take part in the profitless discussion which has taken place as to what particular degree or kind of mental disease is to be regarded as preventing what Stephen¹ called the “free determination of the will”.

But there is a sense in which we may properly use the word “responsibility”, and in which we may take part in scientific discussion on this subject. If we reject the idea that responsibility is something intrinsic to the individual, we may still use the word as expressing the idea of the reaction of society to a given act. If society chooses to decide that under certain special circumstances its normal reaction to some act will be modified, it is, of course, at complete liberty to do so. And society may choose to adopt the rule that certain degrees of mental disease or defect shall materially alter its reaction to acts committed by persons who suffer from such mental disease or defect. We may properly lend our assistance to a Court in order to help it to decide (for the ultimate decision must always lie with the Court) whether such a degree of mental disease or defect exists in any particular case.¹

The present legal rule on this subject is contained in the answers given by the judges to certain questions put to them by the House of Lords after the trial of McNaughten in 1843. And the gist of this rule is as follows: “That in order to establish a defence on the ground of insanity it must be clearly proved that at the time of committing the act the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it [sic] that he did not know he was doing what was wrong.” Very many objections have been taken to this ruling. If the full answers given by the judges are considered, it has been pointed out that they apply to a class of insane persons who do not exist and never have existed. But there are great difficulties in laying down a better definition. Some years ago the Medico-Psychological Association appointed a committee to consider this definition, but this committee failed to produce any improved criterion for use in these cases. In this connexion, it must be remembered that at the time of this committee’s action the “newer psychology” was not yet in existence: nothing was known of psycho-analysis.¹ It may be that in a few years’ time it will be possible to produce some improved definition. Meanwhile other attempts have been made in this direction. Balfour Browne gave as a definition of responsibility: “A knowledge that certain acts are permitted by law and that certain acts are contrary to law, and combined with this knowledge the power to appreciate and be moved by the ordinary motives which influence the actions of mankind.” Sir James Stephen gave as his opinion that the law is as follows: “No act is a crime if the person who does it is at the time when it is done prevented [either by defective mental power or] by disease affecting his mind: (a) From knowing the nature and quality of his act, or (b) From know...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Original Copyright Page
• Table of Contents
• CHAPTER I. INTRODUCTORY: THE PROBLEM STATED
• CHAPTER II. THE PHYSICAL EXAMINATION OF THE OFFENDER AND THE INVESTIGATION OF THE OFFENDER’S CONSCIOUS MIND
• CHAPTER III. THE INVESTIGATION OF THE OFFENDER’S UNCONSCIOUS MIND
• CHAPTER IV. THE OFFENDER’S UNCONSCIOUS MIND (continued)
• CHAPTER V. THE VARIOUS CLASSES OF OFFENDERS
• CHAPTER VI. CONCLUSIONS
• APPENDIX
• INDEX