The Crime of Punishment
The Nixon Administration’s crime program, as it now appears, is thoroughly retrograde: “Mitchell’s Folly,” whether or not it is bought by the Congress and the Courts, has securely earned its author a position in the seventh circle of Hell:
(1) Increased penalties for selling and possessing marijuana and LSD.
(2) Easy mechanisms to deploy the same penalties against such other drugs as the Administration may wish to attack.
(3) A “no knock” law to give federal officers the power to invade the home.
(4) A “preventive detention” statute that is open to the broadest powers of abuse, as attested by the opposition not only of Whitney Young but also or perhaps one should say even of Senator Sam Ervin.
Mitchell is clearly unwilling to await Congressional action on his program. He has instructed his subordinates to launch an all-out attack on the Miranda doctrine and, worse yet, has claimed in the current Chicago conspiracy case that the government has plenary power to use wiretapping and eavesdropping against anyone who is thought to be attacking and subverting the Government, free of judicial supervision and without regard to the Fourth Amendment, which is to say, whenever and against whomever it strikes the Attorney General’s fancy to proceed.
Preventive detention, as readers of The New York Review know from Professor Dershowitz’s recent piece,1 is that doctrine which views the identification of “dangerousness” as a personal characteristic which should subject those who possess it to severe and prolonged periods of incapacitation. Its advocates are always ready, in spite of Professor Dershowitz’s strongly expressed reservations, to proclaim that “dangerousness” can be predicted and, whatever the occasion for its discovery, should be the basis for subjecting those who possess it to measures of incapacitation.
Among those who hold this view are what I have referred to as the “behaviorists” in the criminal law. They see the occurrence of a disturbing event that we call a crime as nothing more than an occasion among others calling for social intervention. They posit, among other things, the views (1) that free will is an illusion, since conduct is socially and psychologically determined by forces that one cannot control; (2) that blame cannot be ascribed for behavior that is conditioned; (3) human conduct, being causally determined, should and can be scientifically studied and controlled; (4) the only possible function for criminal law is to modify the personality of people who commit antisocial acts, or if that fails to restrain them through confinement. The erroneous assumptions of this view are first, that we have any real knowledge about how to rehabilitate people, and second, that we know how to predict those who exhibit traits that are dangerous. The inevitable end of the behavioral view is preventive detention.
The notion that addiction to the use of drugs offers a basis for the prediction of dangerousness, the use of preventive detention before trial, and the power to wiretap and eavesdrop ad libitum, all mark the Administration’s program as behavioral. It all comes down to the same simplistic view: the criminal law ought to be an instrument for dealing with “dangerous” people, whether they have committed an offense or not. This seems to be very strange doctrine for a “conservative” administration to promulgate. Karl Menninger’s latest book, hardly “conservative,” though it does not quite share the rhetoric of Attorney General Mitchell’s program, has the same effect.
I have to say that I don’t really know what Dr. Menninger’s The Crime of Punishment sets out to prove. It is an oddly invertebrate sort of book, which appears to have been patched together largely from newspaper clippings, presumably as uncovered by Dr. Menninger’s clipping service. While it attempts to state a theme, all that emerges is a kind of gargle that lawyers, the criminal law, and the prison system should all be junked. In their place…Dr. Menninger is never clear. Quantities of good will and the ministrations of psychiatrists, aided and abetted by some way of dealing with those social undesirables whom Dr. Menninger is unwilling to subject to what he terms “the crime of punishment. Not that Dr. Menninger ever uses the unpleasant term “preventive detention.” Yet the following quotation seems precisely to say just that:
Some individuals have to be protected against themselves, some have to be protected from other prisoners, some even from the community. Some mental patients must be detained for a time, even against their wishes, and the same is true of offenders. Offenders with propensities for impulsive and predatory aggression should not be permitted to live among us unrestrained by some kind of social control. But the great majority of offenders, even “criminals,” should never become prisoners, if we want to “cure” them. [p. 265]
Dr. Menninger’s use of words is, to put it mildly, Humpty-Dumptyish. When, for example, is an “offender” not a “criminal”? Nor is the term “cure” anywhere defined, although Dr. Menninger presumably would like to contrast it with “punishment.” He can’t bring himself to make this crucial distinction. Nor do I think that he very well could do so. When the people about whom he is talking are permitted to be restrained, he runs head-on into the difficulty that people who are deprived of their liberty are being punished, a condition unconcealed even by his kind of cant. His position, as the above quotation makes clear, is classic behavioral talk, and is typical of attempts to discuss restraining people without using the dirty word punishment. Deprivation of liberty, even when administered in the hope that reform may follow, still counts as punishment, if it is administered to an offender, involuntarily, as it inevitably is. An offender, I should have thought, is only someone who has been duly convicted of having committed a crime.
Dr. Menninger’s concept of the offender, whom he can’t decide how to define, is that of the behaviorists—that measures of incapacitation and/or rehabilitation should be used to protect the public against those who show “impulsive and predatory aggression” whenever and however those tendencies are manifested. Committing an offense is only an occasion, not the reason, for invoking these measures. Whenever we have some reason, other than the commission of an offense, to suppose that a person may harbor aggressive tendencies, we should lock him up.
The Nixon Administration believes just that about indicted criminals pending trial. That is clearly “preventive detention.” The possession and use of marijuana, which the Administration hopes to convert to federal crimes, would also impose severe measures of preventive detention. The Administration has not clothed itself in the language of behaviorism, but Mitchell is just as willing as the behaviorists to permit people to be locked up not because of what they have done but simply because of their “dangerousness.”
If Dr. Menninger thinks that he or any other psychiatrist can make the kind of prediction of dangerousness upon which the concept of preventive detention rests, he has managed successfully to conceal the evidence. Yet a number of judges have been at least as bemused as Dr. Menninger. The Advisory Council of Judges of the National Council on Crime and Delinquency have promulgated a Model Sentencing Act, which Dr. Menninger hails as “a definite breakthrough in correctional treatment and sentencing.” [p. 70]
Section 5. Dangerous Offenders
Except for the crime of murder in the first degree, the court may sentence a defendant convicted of a felony to a term of commitment of thirty years, or to a lesser term, if it finds that because of the dangerousness of the defendant, such period of confined correctional treatment or custody is required for the protection of the public, and if it further finds, as provided in section 6, that one or more of the following grounds exist:
(a) The defendant is being sentenced for a felony in which he inflicted or attempted to inflict serious bodily harm, and the court finds that he is suffering from a severe personality disorder indicating a propensity toward criminal activity. (b) The defendant is being sentenced for a crime which seriously endangered the life or safety of another, has been previously convicted of one or more felonies not related to the instant crime as a single criminal episode, and the court finds that he is suffering from a severe personality disorder indicating a propensity toward criminal activity. (c) The defendant is being sentenced for the crime of extortion, compulsory prostitution, selling or knowingly and unlawfully transporting narcotics, or other felony, committed as part of a continuing criminal activity in concert with one or more persons.
The findings required in this section shall be incorporated in the record. [italics added]
Aside from the kindly attentions of psychiatrists referred to in subsections (a) and (b), consider the fate of the narcotics seller referred to in subsection (c). Some breakthrough! What a fine prescription for preventive detention! I question whether Dr. Menninger has ever read or understands the nature of this “definite breakthrough” to which he has given his blessing. The same question might well be asked about the list of the judges who sponsored this model act, to whose names Dr. Menninger is at pains to devote two pages in his book, pages that might have been better employed in considering the possible impact of the statutory provision quoted above. Listing names, however, to provide proof that whatever he is talking about is “good” is more to Dr. Menninger’s liking than explanation.
The Crime of Punishment is described on the title page as “The Isaac Ray Award Book.” This award is given by the American Psychiatric Association to support lectures by a psychiatrist or a jurist on medical-legal relationships. That, at any rate, is the ostensible purpose, although the history of the award indicates a preoccupation with the subject of the insanity defense and a concomitant preference for lecturers who can be counted on to attack such ideas as the insanity defense, or the concept of criminal responsibility. To this fire2 Dr. Menninger adds a few faggots. The list of previous Ray lecturers lacks any legal scholars who reject behaviorism as a governing postulate and who still see a role for the concept of responsibility in the criminal law. Herbert Wechsler, for example, the chief figure in academic criminal law, and the principal draftsman of the American Law Institute’s Model Penal Code, attacked by several of the Ray lecturers, has never held the lectureship. The Ray line is undeviating, whether given by psychiatrists or lawyers. One could easily add the names of other distinguished nonparty line types who might have been invited to provide some balance to the Isaac Ray lectureships. I need add to the list of the missing only the name of Professor Abraham S. Goldstein, author of The Insanity Defense, a monograph which is plainly the definitive book on its subject. It will be read by serious lawyers but not by feckless behaviorists or their camp followers.
Professor Goldstein canvasses with great care the principal issues that have been, at least since the Durham (1956) case, shaking the criminal law to its roots, by reformulating the insanity defense so as to permit testimony about the causal relation between the defendant’s psychiatric condition and his act. He sticks throughout to a closely reasoned examination of issues that are as complex as they are important. He shows, for example, that Durham has by no means liberated the psychiatrist and that the psychiatrist’s testimony is in truth no more responsive now to hard questions about the defendant’s mental condition and its relationship to his conduct than it is under what has always been possible under the old M’Naghten test, which turned on the defendant’s ability to tell right from wrong. He demonstrates that the noisy quarrel about the wording of the legal test for insanity is beside the point. Rather the point is what light the psychiatrist can shed, given especially the difficulties of presenting an effective defense in the face of the omnipresent problem of “indigent” defendant.
Professor Goldstein recognizes that the central problem of the insanity defense arises when, as inevitably occurs, the defense does not win release but rather confinement in a mental institution. Here the problem is epitomized by Goldstein’s chapter heading: “Acquittal as Preventive Detention: The Problem of Release.” In this chapter, he analyzes in detail the problem of predicting dangerousness and presents a carefully reasoned attack on the idea of “preventive detention.” In his view, in order to limit the scope of preventive detention as it arises from a successful invocation of the insanity defense one must limit the detention in mental institutions to the length of the jail sentence (or the punishment) to which the offender might have been subjected had the insanity defense failed.
Professor Goldstein answers the questions, posed by the behaviorists, whether it would not be preferable to eliminate the insanity defense as well as the concepts of blame and responsibility from the criminal law and substitute “preventive detention”:
So long as the prospects for “cure” in the mental hospital and in the prison are comparably poor, it is difficult to dispute the view that the balance of benevolence is at present against the medical approach—because it brings with it the specter of indeterminate commitment. Until that problem is solved, defendants will make every effort to avoid the insanity defense.
This problem of indeterminate detention may come in any one of several guises—either through an expanded insanity defense, or through avoiding the criminal law by more extensive use of civil commitment or through raising the maximum periods of detention under criminal statutes—but whatever the guise, it presents one of the central legal problems of our time. Before very long, we shall have to develop a core of meaning for concepts like treatability and potential danger, and then we shall have to face the question whether it is “fair” to hold indefinitely persons who cannot be treated successfully. The answer will depend upon how accurately we can predict dangerous behavior, rather than upon characterizations of individuals as psychopaths or defective delinquents or insane. Certainly, we cannot now make such predictions accurately in very many cases. Too many imponderables are involved, too many estimates of how often unfortunate personalities are likely to confront precipitating events. [p. 218]
So much for preventive detention. His reasons for not eliminating the insanity defense are equally persuasive:
…[E] liminating the insanity defense would remove from the criminal law and the public conscience the vitally important distinction between illness and evil, or would tuck it away in an administrative process. The man who wished to contest his responsibility before the public and his peers would no longer be able to do so. Instead, he would be approached entirely in social engineering terms: How has the human mechanism gone awry? What stresses does it place upon the society? How can the stresses be minimized and the mechanism put right?
This approach overlooks entirely the place of the concept of responsibility itself in keeping the mechanism in proper running order. That concept is more seriously threatened today than ever before. This is a time of anomie—of men separated from their faiths, their tribes, and their villages—and trying to achieve in a single generation what could not previously be achieved in several. Many achieve all they expect, but huge numbers do not; these vent their frustration in anger, in violence, and in theft. In an effort to patch and mend the tearing social fabric, the state is playing an increasingly paternal role, trying to help as many as possible to realize their expectations and to soothe and heal those who cannot. As this effort gains momentum, there is a very real risk it will bring with it a culture which will not make the individuals within it feel it is important to learn the discipline of moderation and conformity to communal norms.
In such a time, the insanity defense can play a part in reinforcing the sense of obligation or responsibility. Its emphasis on whether an offender is sick or bad helps to keep alive the almost forgotten drama of individual responsibility. Its weight is felt through the tremendous appeal it holds for the popular imagination, as that imagination is gripped by a dramatic trial and as the public at large identifies with the man in the dock. In this way, it becomes part of a complex of cultural forces that keep alive the moral lessons, and the myths, which are essential to the continued order of society. In short, even if we have misgivings about blaming a particular individual, because he has been shaped long ago by forces he may no longer by able to resist, the concept of “blame” may be necessary. [pp. 223-224]
Professor Goldstein has beautifully summed up not only the case for the insanity defense but also the danger inherent in the behavioral position and the concomitant danger of preventive detention. One could wish that the judges who lent their authority to the provision of the Model Sentencing Act permitting up to thirty years of indeterminate commitment for their idea of “dangerousness” as reinforced by the tenets of behaviorism had been able to stop, look, and listen to the warning voiced by Professor Goldstein. The provision of the Model Sentencing Act quoted above obviously contrasts with Professor Goldstein’s suggestion, a suggestion plainly animated, as he makes clear, by “the threat to liberty involved in indeterminate detention” (p. 176). It is too bad that the judges who endorsed the Model Sentencing Act were not alive to that threat.
Even Dr. Menninger might come down from the clouds and consider that punishment is, in a very real sense, always with us, and that calling it something else (“cure” or “rehabilitation” or any other euphemism that you like) not only fails to remove the problem but makes it all the more difficult to control and virtually impossible to limit the threat to liberty always involved. It seems strange, perhaps even paradoxical, that certain commentators on the Left (to take the behaviorists on their own terms) should now have met themselves coming back to the Right in the form of Attorney General Mitchell and the administration’s program against crime.
The trouble with the behaviorists is that they have never learned the lesson that the urge to “punish” may have a common source in some dark recess of the human psyche with the urge to “cure.” As for the newly resurgent Right, their instinct for vengeance is never recognized or satisfied, even when it takes the form of preventive detention.
There are no easy answers to the problem of crime and punishment. But the solution does not lie with Dr. Menninger nor, as I suppose is obvious, does it lie with Attorney General Mitchell. These are both enemies of promise and of progress. I maintain that we have it in our power to restore what can be a kind of humanism to the criminal justice system by shortening our lines. We must reduce our commitments to a level commensurate with our capacities. The criminal calendars must be reduced. All uses of the criminal sanction, of the institution of punishment, are not equal. We can never have a decent criminal system so long as it must deal with gamblers, narcotics addicts, drunkards, prostitutes, homosexuals, abortionists, and other producers and consumers of illegal goods and services. We must often recognize that other measures of social control reduce themselves to punishment thinly disguised. It may well be better to do nothing. To meet this abiding problem requires us to learn from countries that have been willing to de-criminalize. Whether this is possible for Americans to do remains uncertain.
New York Review, March 13, 1969.↩
Cf., for example, Roche, The Criminal Mind (1958); Weihofen, The Urge to Punish (1956).↩
Model Sentencing December 18, 1969