The New Psychology

The sentencing by Judge John Richard Caverly of Leopold and Loeb to the penitentiary for life is the end, so far as court records are concerned, of what has been called "the greatest murder trial of all times." It has resulted, however, in giving a preferred position before the bar of public opinion to the case against capital punishment. In the past, the subject of capital punishment has been approached, mainly, from what may be called the "sentimental viewpoint." Its opponents have stressed "long lists of mistaken verdicts." Its advocates have sometimes been dangerously close to the theory of personal vengeance in their reliance upon the doctrine of "a life for a life." Henceforth, however, the part which the death penalty should take in an enlightened system of law will be discussed in the light of "new psychology." Said Dr. George W. Kirchwey, formerly Dean of the Columbia Law School (1901-1910), and Warden of Sing Sing Prison (1915-16) : "Judge Caverly met the issue presented to him like a man of the modern world. He may not have known much about the new phychology --few of us do--but he was not, like the State's Attorney, content to repose in the wisdom of the 19th Century. He at least was willing to learn, so he admitted the evidence. He seemed unconscious of the fact of which he cannot have been wholly unconscious, that in so doing he was opening the steel-barred doors of the criminal courts of this country, and the world, to a new concept of responsibility for crime." Said Judge Caverly (in his opinion) : "It is beyond the province of this court, as it is beyond the capacity of human science in its present state of development, to predicate ultimate responsibility for human acts." This, however, is exactly what the modern psychiatrist does attempt to do. One Leonard Blumgart, in an article in last week's Nation, stated that Leopold is the victim of a neurosis and Loeb of a psychosis. In speaking of Leopold, he said: "Yet very few persons understand why he developed this intellectual power--to suppress and repress his own perverse processes. Were the public ready, it could hear of as tragic a perversion of normal instincts, as hopeless and tremendous a struggle against them as was ever made. But no, the psychiatrists had to lower their voices, and even then they were prevented from telling all they knew. . . . The mental and emotional processes by which we first come to recognize the difference between our current standards of right and wrong, and then act upon that knowledge, are shrouded in complete darkness." Lawyers as a body are not, at any rate as yet, very sympathetic to this explanation of human conduct as determining human responsibilities. Cooperation, they argue, is a condition of life in civilized communities. When a person fails to conform to the standards of society and gives the minimum amount of cooperation, as required by the criminal law, the community for its own protection, must impose the prescribed penalties, if such a nonconformist has the mentality to understand what Society expects of him. Definitions of legal insanity are designed to state the lack of mental capacity which one must display before not being held fully responsible for criminal behavior. What is the social value of mental tests, applied after the commission of a crime, which show a person to be ir- responsible so far as criminal acts are concerned, though otherwise responsible and even brilliant in understanding his environment and making the best of it? If this knowledge is to be of much service to Society, will it not be necessary for these tests to be applied before opportunities to commit crimes arise, and must not those in whom dangerous psychopathic traits are discovered, be, as it were, "sentenced in advance"? And, even if the discovery of these psychopathic traits be scientifically possible, is such a procedure administratively practical, and, if administratively practical, can it be carried out with regard to the constitutional guarantees of life and liberty which, in Anglo-Saxon countries, have been relied upon so long and, on the whole, with such good results?

"The rule of the road," says Bernard Shaw, "is simply a device to let you know what the other fellow is going to do. The purpose in part of all law is, for that matter, to let one person know what another is going to do, to permit the realization of reasonable expectations."

The new theory of criminal responsibilities may be "true" just as Einstein's theory of relativity may be "true." And yet, it may be well for the criminal law to retain the seasoned conceptions of human accountability just as it may be well for the Pennsylvania Railroad Co. to continue to rely upon the principles of Newtonian physics in the operation of its trains.