New Trends In Criminology

S. Sheldon Glueck, of the Bar of the State of New York; Instructor, Criminology and Penology, Department of Social Ethics, Harvard University, Cambridge

A Presentation from the Proceedings Of The National Conference Of Social Work Formerly National Conference of Charities and Correction At The Fifty-First Annual Session Held In Toronto, Ontario June 25-July 2, 1924 (p. 196)

Ed. Note: In the history of the criminal justice system of the United States there is considerable evidence that social welfare reformers and progressives helped improve the conditions of local jails, reformatories and prisons and the treatment of prisoners. For example, presentations and reports of standing committees at the annual meetings of the National Conference of Charities and Correction during the late 19th century reveal that social welfare leaders and progressives were actively involved in efforts to reform the nation’s criminal justice system.  It was at these annual meetings where leaders of state boards and experts in penology gave presentations and reports describing conditions in prisons and jails and offering proposals for improving them.

The founding fathers of the National Conference of Charities and Correction (1874 – 1898) were governor-appointed secretaries or executives of a State Board of Charities, and therefor responsible for oversight and reporting on the conditions of public institutions, including prisons. As a result, conditions of state and local correctional facilities and the treatment of both juvenile and adult felons were among some of the most important topics presented at the early meetings of the National Conference. This presentation from the Conference held in 1924 is an example.

Modern principles of criminal law and procedure are largely traceable to the eighteenth-century humanitarian movement and to the philosophers who gave voice to that ethical renaissance. These first great strides in the humanizing of criminal law and procedure had as their theoretical, philosophical basis the “social contract” theory of Rousseau.

The speculations of eighteenth-century philosophers became crystallized in the penal codes of the nineteenth century, through the activities of the socalled classical school of criminology. The stressing of the rights and liberties of the free-willing individual was its chief characteristic. It made little or no attempt to distinguish between different individuals, since it attributed all conduct to free choices made by men all of whom had the capacity for such conduct. Consequently it treated crime objectively. Crime became a juridical abstraction; an invariable penalty, carefully measured out in advance for each type of crime and inflicted uniformly, was the ideal. Thus far penal codes were the reflection of purely speculative conceptions of the nature of manman in the abstract. The neo-classical school arose as the result of the growing recognition of the fact that the theoretically unimpeachable principles of the classical school, derived by pure reason, would not hold water in certain very obvious cases. Manifestly, infants and the violently insane or hopelessly idiotic could not be considered on a parity with the so-called normal man.

The meaning of punishment up to this stage of development was merely the merciless collection of a debt due to society and that its prompt and uniform infliction would have a strongly deterrent effect. Here and there, as among the early Quakers of Pennsylvania, it was recognized that once the prisoner was in the custody of the agencies of the state, corrective and reformative work might profitably be done with him, both for the good of his soul and for the prevention of future socially injurious relapses on his part. The abstract, speculative conception of man, however, led not to a practicable program of individualized reformation and reconstruction based upon an understanding of the individual delinquent, but to such experiments as the Pennsylvania solitary confinement system of the Quakers.

While the classical school attempted to keep itself alive by modifying its principles in accordance with the advancing biological and social sciences, this process of modification resulted in internal inconsistency, for it meant the shifting of emphasis from the determination of appropriate penal treatment by the type of crime, to individualized treatment based upon careful study of each criminal.

The so-called positive school, founded by Lombroso, attempted a more consistent approach by insisting primarily upon study of the individual offender as a prerequisite both to general legislation and individualized treatment. It, and contemporary reformers in criminology, sought to escape the neo-classical dilemma of individualism versus the need for scientific social control by such compromise devices as the so-called indeterminate sentence. This sentence is, however, indeterminate only within minimum and maximum fixed limits, the object being to allow expression both to fixed legislative rule prescribed in advance and uniformly applicable to all cases, and judicial discretion to be exercised in the individual case.

With the advent of the work of Healy and others, individualized study and treatment have been carried as far as modern biological and social sciences will permit. Emphasis has at the same time been placed upon the importance of organized and intelligent effort directed to the prevention of the development of delinquent careers.

The preventive and rehabilitative work of such agencies as the Judge Baker Foundation of Boston and the Bureau of Children’s Guidance of New York initiates a new era in the social attack on criminality; namely, the regime of clinical study of the processes of development of anti-social careers, and the conscious endeavor to evolve a workable technique for the successful heading off of such development. The new method of attack is sufficiently known to this gathering to permit me merely to refer to it as one of the really significant trends in the modern attack on the problem of criminality.

We must content ourselves with but passing reference, also, to such preventive and constructive social measures as the community organization movement, the programs for the constructive use of leisure time, the mental hygiene movement, habit clinics for children of preschool age, the Scout and Big Brother movements, and similar vehicles of attack on the problems of personality development and prevention of anti-social conduct.

Some attempts have recently been made to evaluate existing criminal law and procedure by means of such enterprises as the monumental Cleveland Survey of Criminal Justice, with the view of at least bringing some order out of the chaos of overlapping agencies and authorities and putting them into harmony with modern social and industrial conditions in metropolitan centers.

But while readily conceding the need, and working for the reform and modernization of existing police, judicial, and penal machinery, we must give some heed to the beginnings of the demand for a recasting of fundamental notions in the criminal law. A new philosophy of the criminal law and new principles are being called for. There is a need for the introduction of more informality, more of the spirit and method of modern administrative law, into the inquisitorial, prosecutory, and condemnatory machinery of modern technical criminal law and procedure. They suggest, further, the extension of the principle of individualization to the case of adult offenders, and of the increased use by courts of scientific aid in the treatment of the individual offender. They suggest, too, a lessening of the revengeful, repressive element in the politically organized social reaction to crime, however much the spirit of revengefulness and vindictiveness may still move us as individuals and as social groups organized on other than political lines.

There is a conflict between the need to make the law specific, well defined, uniformly applicable, on the one hand, and the need for such greater latitude in treatment as is suggested by the work of Healy and others. This is the crux of the entire situation in our criminal law and procedure today. It is traceable, as we have seen, to eighteenth-century individualistic philosophy which was embraced in our constitutions. We are confronted with a fundamental dilemma. On the one hand we must strive to maintain the social interest in the individual life, in the individual freedom, in the opportunity for purposive self-expression; on the other, we must try to absorb into our legal structure that principle of individualized diagnosis and treatment that frequently is inconsistent with what the prisoner himself and the public at large regard as being to his best interest. Justice, to the popular mind and to the individual in the toils of the law, means simply a uniform penalty, uniformly prescribed in advance by the legislature, and uniformly applied in specified cases.

A simple illustration will serve to clarify my meaning. Recently I had occasion to make a study of a novel law in Massachusetts, a law which is an early expression of the new movement we referred to. This law provides for the routine mental examination of all persons accused of capital offenses and those known to have been indicted for any other offense more than once or to have been previously convicted of a felony. Obviously, this law is attempting to encroach upon the traditional legal methods of doing things in this field. There is, it is true, nothing compulsory about the law. It depends entirely upon the whole-hearted co-operation of prosecutors, counsel for the defense, judges, probation officers, and other social workers, in an attempt to avoid waste motion; in brief, to make a sensible disposition of the individual case to the appropriate penal, correctional, or curative institution, in accordance with the findings of modern psychology and psychopathology and with the technique of modern social work. But it is a beginning of the movement toward the scientific disposition of at least certain classes of offenders.

The fault is not so much with the men who administer our laws, men who frequently are openminded and willing to give trial to new suggestions, but with existing criminal law and procedure, with the legislative prescription, in advance, of the limits of definite, brief sentences, under the readily pierced disguise of “indeterminate sentences,” which, in practice, really amount to small fixed sentences; and this most important feature of our criminal codes is traceable to the classical idea of each crime causing a definite amount of disturbance of the balance of the social order, and requiring a definite dose of penalty to wipe out the stain on the body politic and to restore the harmonious balance.

Now it is easy to point to these weaknesses in modern criminal codes, but an attempt to eliminate them, when made in the light of inherent limitations in all justice according to law, meets veritably insuperable obstacles. We are confronted with the need for balancing the social interest in the individual life and liberty against the social interest in the security and welfare of the social order. Any suggestion that we enact a wholly and genuinely indeterminate sentence for consistent and habitual offenders immediately meets the objection that this is too harsh an interference with individual life and liberty. Yet what is the use of all our preventive, penal, and correctional machinery if it continues to aid in, or at least fails to prevent, the manufacture of dangerous and costly recidivists? But it is frequently and precisely those things under our very noses that we fail sufficiently to consider.

The condition of recidivism is, as you know, well-nigh universal. For example, of the 9,219 occupants of our county jails in Massachusetts in I922, 59 per cent had served on an average of six previous sentences. Similar percentages have been found for Sing Sing and other prisons. Recently a Massachusetts law was passed providing for the mental and physical examination of these inmates. Such laws are helpful; they are steps in the right direction. But they are not fundamental; they do not cut to the root of the evil. After mental and physical examination, what? We are up against the stone wall of tradition as crystallized in our penal codes. It is true that the Massachusetts jail survey will be useful in arousing the legislature to a consideration of the need of segregating the insane, feebleminded, and epileptic offenders in special institutions. But immediately we are back to the legal limitations, the time limits, of such special treatment as might be given these classified offenders.

An attempt to escape from the dilemma we are considering has, of course, been made by means of the so-called “habitual criminal acts” in operation in many states. I am not aware that anyone has made a careful study of the actual operation of these acts in the different states; but I venture to suggest that they are ineffective. The proper administration of such acts requires the co-ordinated functioning of efficient bureaus of criminal identification and statistics, and the whole-hearted co-operation of judges, prosecutors, and counsel for the defense. Moreover, the not uncommon practice of district attorneys bargaining with offenders as to the type and degree of offense they will plead guilty to is little calculated to induce the efficient operation of habitual criminal legislation. Further, the principle upon which these provisions usually proceed is wrong. We are again met here with the need for specific, legislative prescription of length of sentence in advance; for usually these acts provide for a definite increase in penalty if an offense is committed a second, third, or fourth  time. It may be far better, in individual cases, not to increase the penalty for a second offense, or even to reduce it, in the event that such treatment is indicated. In other words, the need for definiteness of legislative prescriptions in advance, automatizes and mechanizes the administration of the law not only in habitual criminal acts but in the suspended sentence and probation legislation, which quite typically and automatically requires that only first offenders (regardless of the individual make-up of the first offender under consideration) shall be granted these privileges. The automatizing and “lawyerizing ” processes to which habitual criminal acts have been subjected in a zealous guarding of “individual rights and liberties” is apparent to anyone who has analyzed some of the vast number of decisions which have clustered about various technical questions arising out of habitual criminal legislation. Our codes reflect not only the much-cited antithesis between the method of the physician, who does not prescribe in advance the length of the treatment, and that of the judge, who is compelled to say or guess in advance exactly when the sick patient will be cured or the “perverse” sufficiently punished or reformed; they reflect the more ridiculous situation of the physician not being informed by the nurse as to the progress of the patient toward recovery, not visiting the patient at intervals to note his improvement, not modifying the treatment from period to period, and, not infrequently, of not ever having been inside of a hospital.

These conditions make it clear that we must first deal with the traditional need for definite, legislative prescriptions in advance, of the length of service attached to each offense, so that the power to deprive of liberty may not be abused; and secondly, we have to deal with the associated problem of lack of co-ordination of effort between the courts, the penal institutions, the parole officers, and social agencies and workers.

I do not come with panaceas that will eliminate these evils which are of such importance in the whole judicio-penal philosophy and machinery. It is my hope merely to stimulate thought along the lines I have briefly and imperfectly discussed. This much, however, can be said about the problems raised: First, that the two difficulties, namely, the inherent inconsistency in the philosophy of criminal law and procedure, and the lack of co-ordination and unity of purpose that it leads to among the various public and private agencies concerned with criminality, are facts fundamental to any evaluation of modern trends in criminology, and must be dealt with in blazing the path for the new criminology; secondly, that as to the first problem of the conflict between rule and discretion-between the demand for safeguarding the individual rights on the one hand, and the need for a more individualized and scientific administration of criminal jurisprudence on the other-now is the time for constructive thought based upon careful research in this field, with a view to evolving a program and procedure that will sufficiently safeguard individual rights and liberties and yet make possible the application of modern scientific methods to the work of rehabilitation of the criminal and the decrease of recidivism. Perhaps a partial solution lies in the wholly indeterminate sentence, with provisions for automatic, periodical review by scientists attached to the courts of the progress of treatment in the individual case, and the subsequent defining by the court of the length of penal and parole treatment, based upon a series of such experts’ reports. This, like any other measure along these lines, would not wholly escape the dilemma we are considering; but with the guaranty of automatic, periodic judicial review of progress toward rehabilitation, individual liberty ought to be sufficiently safeguarded. It should be pointed out that the wholly indefinite period of incarceration ought to have a strongly deterrent, as well as reformative, effect. Perhaps special judges should be trained for this work, their education being a combination of law, psychiatry, and sociology, and comprising practice terms as prosecutors, public defenders, directors of prisons, and social investigators; their work offering gradually progressive promotion to the position of expert judge, with attractive salary and life tenure.

That the inherent inconsistency referred to must be dealt with in the application of modern devices of criminology, such as effective probation, reformative work, and psychiatric treatment within the institution, or even such experiments as the Mutual Welfare League and other inmate self-governing devices, must be apparent. In most cases the minimum limit of the so-called indeterminate sentence is imposed and time off is allowed for good behavior, which last usually means time off for not being positively bad. At any rate, the prisoner must automatically be released when his maximum limit of sentence is up, without practical regard of the very important consideration for which all this penal and correctional and supervisory machinery has been evolved-that is, his ability to lead a social and law-abiding life upon his release. His early return to the institution is not only probable, but is confidently expected; and, if he happens to be a good baseball pitcher, it is hopefully anticipated and gleefully and triumphantly consummated.

This brings us to the second problem–the means of closer co-operation today between courts, prosecuting machinery, and penal and correctional institutions. The most promising proposal that has been made is for the creation of a ministry of justice for each state. Such an agency would co-ordinate the efforts of all officers and institutions dealing with the criminal from the moment of his arrest to the time of his return to society. It would keep careful statistics of recidivism, maintain a social-psychiatric service, carefully supervise probation and parole, and study the effects of various types of treatment in the individual case. Instead of the police, prosecutor, judge, counsel for the defense, prison warden, probation and parole officers each regarding his job as an end in itself, unrelated to the ultimate objects of society as expressed in its laws, their efforts would be planfully co-ordinated. Incidentally, much efficiency could be introduced by this device in the mechanical work connected with the administration of the law.

Source: Proceedings Of The National Conference Of Social Work Formerly National Conference of Charities and Correction At The Fifty-First Annual Session Held In Toronto, Ontario June 25-July 2, 1924 (p. 196) —

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