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discharge employees for being members of a labor union, have thus been annulled by the courts. In 1917 the Supreme Court went even further, and declared that a Labor Union has no right, against an employer's wish, to urge his workmen to join the union. The New York State Supreme Court declared the workman's compensation law unconstitutional, and it required a constitutional amendment to make it operative.
At the same time that the Courts have thus been annulling laws passed in the interest of the weaker members of society, they have been sustaining the powers of the great Corporations, and making possible the prodigious profit-takings of the past few decades. It is no wonder, then, that not only the representatives of the laboring classes, but many members of the professional classes, have felt that the Courts were essentially a class-institution. A distinguished student of public affairs wrote with some bitterness, in 1919, “Within the last year the case of the United States against the Standard Oil Company for violation of the statutes directed against rebates was dismissed by the courts, while the officers of the American Federation of Labor were committed to jail for alleged violation of a court order.”
It is useless to expect, of course, that prejudice will not enter into judicial decisions. All men are full of prejudices; lawyers and judges are no exception. The fact that there are precedents available for almost any possible decision, and that judges differ upon almost every disputed case, means that the element of unconscious bias must be a considerable factor. What is essential, then, is that judges should be drawn from all classes of cociety, subject to all the conflicting prejudices, and that decisions of importance should be made only by a two-thirds vote, or even perhaps a unanimous vote, of a panel of judges representing all schools of thought.
It is also important that the law should be conceived not merely as a mass of precedents, a binding grip of the past upon the present, but that fresh interpretations shall keep our laws in touch with changing conditions. It is necessary that judges be men “who have a large comprehension of our country's needs, wide conceptions of social justice, and who have creative minds—who can make legal interpretations contribute to the structure of our government." To this end the law schools should teach their students and the legal profession should inculcate among its members the realization that their ultimate aim must be to serve the welfare of the country.
But justice must go farther than to treat the rich and poor alike, and to rate human needs above property interests. It must take account of the influences that lead certain people almost irresistibly into crime; it must seek to give them a fair chance by counteracting as far as possible these evil forces. It must see to it that the punishment inflicted for crime is not of such a nature as to brutalize and make a hardened criminal out of a first offender. It must see to it that a man who has fallen once has every possible opportunity to recover his self-respect and the respect of society. In these aspects of what we might call the Broader Justice, we must confess that we are only at the beginning of imperative reforms. Our penology may compare favorably with that of some other countries. But nothing should content America but the best. And our present penal system is far short of what it ought to be.
It is an axiom of modern criminology that most crime is preventable. In the phrase that has become familiar, “All men are possible criminals, and all criminals possible men.” The number of convicts released for war-service who won commissions and medals, and the greater number who made good in less spectacular ways, should convince the most reluctant of the needless injustice in branding a man as a criminal for life because of one offence. It should also show that what a man becomes depends largely upon the nature of his environment and opportunities. We have been too slow to discriminate between the pathological, hopeless criminal, and the man whom we might call a chance offender, a victim of circumstances. Toward the latter we need the humbler and more generous attitude expressed in the words attributed to various godly lips, “There but for the Grace of God go I!”
Perhaps a third of the inmates of our prisons showed signs in childhood or youth of abnormality. They should have been carefully watched by the school medical examiners and either given a special corrective treatment or education, or, if necessary, removed from the pressure of an environment in which they were practically sure to go wrong. Most of these defectives and abnormal individuals could be kept from crime and made into self-supporting citizens by proper precautions. The more hopeless ones should have been put where they could never have been dangerous to society, without waiting for the harm to be done and the stigma of "criminal” to attach to them.
As to the other two-thirds of our criminals, probably more than half would have kept clear of crime but for the pressure of poverty, of over-hard and unpleasant work, of crowded, noisy, unsanitary, uncomfortable homes. The provision of adequate housing accommodations and decently pleasant working conditions, with reasonable hours and wages; and the securing of education for everyone, so that all can earn an honest living and have resources for their leisure hours,—these are the minimum requirements of our American ideal of justice for all.
There will still be those who will yield to passion or seductive temptation and commit anti-social acts. With these our aim should be not revenge but reformation. Most of these offenders, if treated kindly and trained in social co-operation, would come to regret their mistake and would emerge from their imprisonment with a resolve never to return. But this is a matter for expert treatment, as far removed as A from Z from the incredibly stupid treatment that prisoners now sometimes receive. Many of our prisons are scandalously unhygienic; the wardens are often men without special training for their office, if, indeed, they are not coarse and of a lower moral grade than some of their charges. Little is done usually to train the unskilled prisoners in any vocation; in many cases they are even required to pass their days in idleness. Often young offenders are allowed to associate freely with men who are hardened and who take pleasure in teaching them criminal ways. Little is done, if anything, to remedy the defect of character which caused their fall. They are kept under restraint for a period of unhappiness and brooding, and then turned loose upon society again.
There is no need to labor the point that we are not fair to our criminals. Many of them have never had a fair chance to become reputable citizens; many others who have abused their opportunities could also, by proper training and environment, be made over into men of use to society. Some will, no doubt, prove hopeless. But a more discriminating treatment would salvage most of the human wreckage that now disgraces our civilization.
As a scientific penology proved the possibility of restoring most offenders to normal citizenship, the people at large would become less wary of accepting the services of those who had served prison terms, and there would be a mitigation, at least, of that cruel suspiciousness which makes it all but impossible now for a man who has once fallen to regain the respect of his fellows and build for himself again a respectable life. Another chance for everybody, should be our demand. If our prisons were all scientifically managed our faith in their efficiency as reformschools would be justified, and the professionally criminal class would lose the many recruits that join it out of desperation at the attitude toward them of society.
Human life can never be made to offer equal opportunities to all. We shall be to the end different in brains, in good looks, in health, in a thousand things that contribute to the determination of our conduct. But if we sincerely cherish our ideal of Justice to all, we must realize that far more is necessary for its attainment than the judicial and penal systems that we as yet possess.
Frank Parsons, Legal Doctrine and Social Progress, Chap. VIII.