Saving Communities

Bringing prosperity through freedom, equality, local autonomy and respect for the commons.

The Ethics of Democracy

by Louis F. Post

Part 6, Democratic Government
Chapter 3, Crime and Criminals

WHAT to do with the criminal classes is an ever-recurring problem of democracy. It is usually treated as if these classes were composed of brutes, and it were supplementary to the problem of what to do with hawks, or rats, or foxes, or wolves or other beasts and birds of prey that pester mankind. At best it is treated as if the members of the criminal classes were a different kind of creature from ourselves, having not only a different environment, but different heredity and radically different moral impulses.

Until that attitude is changed for one more considerate, the problem will not be solved. All the whipping-posts that can be erected, all the novel methods of legalized homicide that can be invented, all the perfunctory red-tape kindness that professional penal reformers can devise, all the learning of "scientific" penology, will not in the least degree advance the solution of the criminal problem until the criminal classes are sincerely and intelligently considered as men like other men.

The first point for consideration along that line is motive. In itself criminal motive is nobody's concern but the criminal's. It does, indeed, go deeper than criminal action. It is, indeed, the essence of crime. When fostered it does build up criminal character. But criminal motive in itself injures no one but him in whom it exists. It is distinctly an individual affair, an evil to be reformed by the individual in response to his own choice and in his own way. Organized society has no function regarding it.

For the reformation of motives, we may teach and preach and admonish; but we must do so as individuals to individuals. We have no right to put men's motives into moral strait-jackets by force. And we could not if we would. The individual mind and the individual conscience are things which cannot be controlled by external force either for good or for evil. The great Architect of the universe, personification of all wisdom and all good, appreciates the importance of intellectual and moral freedom, even if the best and wisest among us will not. He has made it impossible for men by force to regulate the motives of other men.

Criminal motive not embodied in action harmful to others, raises a spiritual question alone. There is no social problem, no question for the penologist, no right in organized society to resort to force, until criminal motive translates itself into criminal conduct.

Nor is this a special plea for the criminal classes. It is simply a recognition of a universal right. Criminal motives are not confined to the criminal classes. They exist in greater or less degree in all classes and in all individuals. The best among us is not wholly free from crime, in so far as motive constitutes crime. For what is criminal motive at bottom but selfish desire? Whoever wishes for what in justice belongs to another, whoever aspires to dominion over others, even "for their own good," whoever prizes privileges for himself above the rights of others - all such harbor criminal motives. And it makes no difference whether their selfish desires are confined within legal limitations or not. A wrong is none the less a wrong for having legal sanction. We may change its name by law, but we cannot thereby change its character. It is still essentially a crime, and the desire for its advantages is still a criminal motive. In criminal motive, then, the race is at one with itself. Within that realm there are no distinctly criminal classes, for all classes are criminal.

But when criminal motive does translate itself into harmful action, then a criminal class is distinguishable and the power of organized society is challenged.

Social order - not disorder, but order; both the degree of order that now exists and all possibilities of attaining to higher degrees - depends upon social peace. There must be peace that orderliness may develop unto perfection. And peace there cannot be so long as criminal motives generate criminal actions, unless society, with the superior power of general organization, maintains peace by protecting individuals from aggression.

Now there is a universally recognized class with which aggression is habitual. It is the class that includes pick-pockets, highwaymen, confidence men, forgers, and incidentally murderers - a predatory class. With that class criminal motive embodied in criminal action constitutes an aggression upon individual rights and consequently an infraction of the social peace. It thereby raises up a plain social duty. The duty of society is clear enough to prevent such depredations as far as possible, and if necessary for that purpose to punish depredators when detected. It is at least clear that men of that kind should be forcibly restrained.

Thus far the most conservative reader will doubtless agree. If he finds any fault it will probably be that this is not severe enough. For the class referred to is what is commonly distinguished as the criminal class, and that is a class with which your conservative, especially if he is a churchman of the pious variety, has little patience. He may be humane, and have theories about reforming this criminal class. Possibly he may be addicted to the reformatory theory of an enforced hygienic diet. Or he may prefer forcible kindness. If old-fashioned he may have confidence in religious tracts; if new-fashioned he may come out strong on heredity, and favor physical dismemberment or at least prohibition of marriages among criminals. But he is more likely to indulge the conviction that the only reformed criminals are dead criminals.

Over the question of severity in the treatment of the criminal class, it is not necessary here to raise any issue with conservatives. On the contrary, we may go as far as they in demanding that crime be prevented; and as far as they can justify their demands on principles of prevention, in also demanding the punishment of criminals. If it could be demonstrated that the death penalty is a necessary and effective deterrent, and not more injurious to those who inflict than to those who suffer it, even the death penalty for the restraint of criminals might be stubbornly insisted upon. It is of vital importance to society that society repress crime.

But we must not look for criminals in the so-called criminal classes alone. Nor yet among those only whose crimes are denounced by the criminal law. All crimes are not enumerated in the criminal law; neither are the worst crimes enumerated there, for the worst crimes of modern society are legally sanctioned by society itself. And while we may not characterize beneficiaries of these crimes as criminal in any conventional sense, no one can deny that most of them are criminal essentially. For with most of them - not only among the rich, but also among the comparatively poor - a wrongful motive (desire to appropriate what of right belongs to others) and a wrongful action (use of influence to perpetuate the sanctioning by society of such appropriations) do coincide, and in that coincidence is the perfection of crime.

Those are the criminals who are chiefly responsible for the existence of a so-called criminal class. They set a pernicious example of getting incomes without doing useful work. If such as they may do this with the sanction of a criminal law the sanctions of which they control, why may not persons less advantageously situated do it in defiance of that law? This inquiry may not play a conscious part in the development of the ethics of the disreputable criminal class; but if one of their ethical experts should lay it before a moralist of the respectable criminal class, what plausible answer could he make without begging the question? We must remember, too, in this connection, that conscious influences for evil are never the most potent. It is the unconscious influence of an evil example, the influence that is not recognized and could not be explained if it were, that has possibilities of incalculable harm. Such influences are the familiar phenomena of legalized theft, which manifest themselves in the great unearned fortunes that distinguish the age in which we live.

Nor is it by pernicious example alone that the reputable criminal class produces and fosters the disreputable. It does it also and chiefly by forcing abnormal individual development into a mould of disorderly social development.

What, for illustration, could contribute more effectively to the creation and propagation of a disreputable criminal class than a law denying to everyoody except a few and their assigns the right to live? Since only these few and their favorites, and purchasers from them of life rights, could live without committing legal depredations, a class would inevitably grow up which would prey upon all other classes. Even though they might buy the right to live, and buy it cheap, yet it is conceivable that under the influence of environment - and heredity, if you insist upon it - the members of this predatory class would prefer a precarious but strenuous life of disreputable crime to a reputable existence at the price of legalized blackmail. The old "free traders," who would now be known as "smugglers," were examples of this disposition to become lawless criminals rather than submit to the exactions of lawful criminals.

But it is not necessary to imagine an institution which makes of the natural right to live a legal privilege. The right to live necessitates the right to a place on the earth to live upon, and the right to live the social life necessitates the right to live on the earth at places where social opportunities cluster. To deny the latter right is to deny social life; to deny the former is to deny life altogether. Yet the law denies both. Except to a favored few and their assigns, the right to a place upon the earth is denied. Babies are born by the hundreds of thousands every year, who have no legal right upon this planet. It is true that they may buy a right from babies whose ancestors were successful in the game of grab. But they must buy it by supporting in greater or less degree those other babies with their labor, as both classes grow up. It is true, too, that they may buy some places for very little. But if they would buy where social opportunities cluster they must pay dear. Some of these places are so rich in social opportunities that even a few square feet could not be bought with all the earnings of a day laborer accumulated since the birth of his Elder Brother. But whether the price be high or low, it is a price for the right to live - for the bare right to live if low; for the right to live the social life if high. In either case it is legalized crime, whereby some of the people are forced either to support others in idleness by reputable labor or to prey as a criminal class upon the community.

While that phase of the problem of dealing with the criminal classes remains unnoticed by criminologists, the possibility that those "scientists" will solve the problem is hopeless.