IS LEGAL RECOGNITION OF GRADUATED RESPONSIBILITY PRACTICABLE? By A. B. Richardson, M. D., I believe I am correct in asserting that the basis upon which all legislative effort to regulate human conduct in civilized countries rests, is, that for a given offense a certain penalty shall be inflicted. Arbitrary classification has been made of what are considered deflections from good conduct, giving numerous degrees of offense, each with a definite penalty attached. An offense of a certain kind and a certain degree has a corresponding kind and degree of punishment. The law can only approximately determine degrees of guilt and recognizes in most cases that extenuating or aggravating circumstances may vary the degree of offensiveness in any given act, so that much latitude is ordinarily allowed the judicial authority charged with rating criminal conduct in fixing the penalty. At the same time I believe it is true that this latitude is always for the purpose of fixing as accurately as possible the grade of the individual offense and of making its penalty to correspond rather than recognition of any variation in the responsibility of different individuals for an act of the same character under precisely similar circumstances. The variation recognized by the law is a variation in grade of criminal conduct-a variation in the degree of divergence from right conduct. It is true that as administered by the courts the presiding judge does sometimes attempt to include among the extenuating circumstances the capacity of the particular mental organization which is found in the offender. The penalty inflicted is sometimes modified because of a belief that full capacity does not exist. The law, however, takes no cognizance of this limited capacity except when it is held to exist in such degree as to carry entire irresponsibility. As far as the law is concerned, an offender is entirely responsible and amenable equally with all other citizens for his acts, or wholly irresponsible and relieved by its provisions of all penalty for criminal offenses. Even as recognized by the courts, in their attempt to meet the requirements of justice by conceding individual variation in capacity among citizens of a community, the only solution of the problem is a variation in the degree of penalty inflicted. The kind is seldom 'changed. If it is a fine, it is for a lesser amount. If imprisonment, it is for a shorter period. This, I believe, we are safe in assuming, is the only manner in which graduated responsibility is recognized by the courts. The present inquiry will be directed to the following considerations: First, is the recognition of graduated responsibility before the law necessary or advisable? Second, if so, is it practicable, and if practicable, how shall it be recognized? As we find humanity exemplified in individual form, it will require but little investigation to determine that great variations exist in mental capacity and in the degrees of development of moral sense, short of entire incapacity and moral idiocy. A study of offenders, in particular, discloses frequent instances of deficiency in both mental and moral capacity where we should hesitate to attach entire irresponsibility before the law. Let us concede, then, the fact, and say that such graduated responsibility does actually exist among human beings. This being the case, it must follow as a logical deduction, if justice is to be administered with approximate equality, that the recognition of this graduated responsibility by the law is at least advisable, and, we may fairly say, necessary. The question remaining, therefore, is, first, can the law-making power safely establish any basis upon which this graduated responsibility may be recognized, and second, in what manner can it be practically carried into effect? Here comes the rub. Here lies the chief intricacy of the problem. All men differ, we will concede, both in mental and moral capacity. Many show evident defect in one or both of these directions without entire incapacity, and this we also concede. We admit, too, the desirability of having the law recognize these facts, and for each individual there should be measured just such responsibility before the law as his relative capacity warrants. In the adjustment of penalties it is easy to say, all on this side of the line are equally responsible and wholly so. We may know that there exists among individuals the great and the small, the strong and the weak, passing from the one extreme to the other by infinite gradations, but as long as we are required only to separate the goats from the sheep, we do not encounter much difficulty. It is when we come to classify these goats among themselves that the task becomes well nigh insurmountable. Before undertaking to answer these questions, let us for a moment undertake the always easier task of pointing out wherein the present attempts of the courts to meet the requirements of a recognition of graduated responsibility do not accomplish the desired end. The ultimate object of all attempts to inflict penalties for wrong-doing is to prevent the recurrence of similar acts, either in the individual himself or in others. In persons of limited mental capacity, or defective development of the moral sense, the danger of repetition of a similar offense, under similar conditions, is greater than in the fully developed or entirely healthy individual. In such cases a shorter period of restraint, or lesser fine, only leaves the person the more opportunity to return to the same environment, or to resume the same relations that resulted in the first offense. The penalty, too, even if of equal degree of severity, has, in such a case, less retarding influence. It is certainly illogical to attempt to secure for the person a more equitable dispensation of justice merely by sooner returning him to that condition which will favor a repetition of the offense which will again call for a punishment. On the other hand, if it is recognized that the offender is of relatively limited mental or moral capacity, to inflict upon him a punishment of like kind and degree with that which a more fully developed person, with larger responsibility, would merit, would neither be just nor reasonable, because he does not merit it and because it would probably fail of accomplishing that for which all punishment is intended. Further, to mete out to such a person a punishment of like kind, but lesser degree, would still less effectively restrain him from a repetition of the offense. His relatively limited moral capacity renders him less amenable to such control and more likely to repeat the act under similar conditions. If he is to receive from the law strict justice on the one hand, and on the other to be so treated as to most effectually guard against a recurrence of the offense, some other form of penalty must be utilized. The troublesome question is to determine what this shall be and what, if any, rules the law can lay down for the guidance of the courts and juries in determining the form of punishment to be used and the manner in which it is to be applied. In different forms of crime I believe different methods of meeting the conditions will be necessary. Where homicidal tendencies exist in those of defective moral sense, who are yet controlled in their crime by more or less rational motives, and who cannot be wholly relieved from responsibility, there should be a considerable variation from the usual practice. It may well be questioned whether capital punishment in such a case would be justifiable either for its retarding influence on others of like organization, or because justice requires its infliction. Life imprisonment will effectually safeguard society, and probably exercise more of a retarding influence on others of like type than would a spectacular execution. On the other hand, when homicide has been committed by such a person, under circumstances which might, in one of higher mental and moral development justify a lesser grade of punishment, I believe greater care should be used in the scrutiny of the structure of the individual, and more caution exercised in turning him loose upon society. An extension of his term of sentence rather than its shortening will probably frequently be necessary, yet the practice of the courts is often the reverse. Let me illustrate by a case which lately came to my notice. A man of plainly limited mental capacity, who had shown evidence of easily aroused emotional outbursts during his life, which had sometimes taken the form of somewhat ridiculous attempts at suicide, but who had worked at common labor fairly well, after repeated solicitations of marriage to his landlady, a widow of somewhat higher intellectual organization, one night, when a further request had been refused, assaulted her with a small knife, making a few flesh wounds, and then stuck the knife in his own throat but without serious result. Now in a well-developed person, wholly responsible for his acts, this crime of assault with intent to kill would rightfully carry the penalty of a certain number of years in confinement, the length of term being determined by the presence or absence of extenuating circumstances, and, perhaps, the extent of the injury. In the person under consideration the fact of his defective capacity should not be such an extenuating circumstance as would shorten the term of confinement. On the contrary, the term should be lengthened. Such a person is unsafe ever to be at large. If he is so manifestly defective as to rightly belong to the unsound, he should be confined with them; if not so deficient as to be properly classified with these he should still be restrained, made a nearly as possible self-supporting, and society protected from a repetition of such offense against it. To some extent the same is true of all offenses which carry a penalty of imprisonment. If a limited moral capacity is present, more care should be exercised in permitting the person to return to the environment that produced the original act, and in all such cases the release, when it is necessary, should not be unconditional. There should still be such control as will admit of the person's immediate sequestration as soon as evidence is shown of any tendency toward a similar offense, without waiting for the occurrence of such an act as would ordinarily be required to permit the law to take charge of him. Whether this sequestration shall be in a special institution or a reformatory, or among the mentally disordered, is a minor consideration and to be determined by a study of the degree of deficiency present, and of the probable effect of this or that form of restraint. If there is comparatively little deficiency present, and if the person seems fairly capable of being impressed by the kind of punishment inflicted, it is much better not to send him to an insane hospital. He is out of place there, and neither will he himself be properly influenced by his restraint, nor will he exercise a wholesome influence on those by whom he is surrounded. All offenses against morality in those of relatively limited capacity should call for the same careful scrutiny of the perpetrator. I believe, too, that a single offense of this character in such a person should be taken more frequently to indicate a propensity from which society should be protected. Such offenses are becoming so frequent in individuals whose character and past acts have given ample warning of the propensity that it would certainly seem that the law should step in and try to an |