Evening star., 1956-03-11

If the moral Judgment Of the
criminal is left to Heaven even
then we need fear no loss of NOR
ality, since moral judgments are
embodied in the laws themselves.
II this should mean we must aban-
don determining criminal respon-
sibility along with moral Judgment
of the individual we would then
seem to find ourselves on hook,
deprived of something essential to
the judicial process. We still feel o
need for distinguishing between
mentally i'll and normal criminals
in administering the law.
Why We're Puzzled
The reason for our puzzlement is
that the concept of criminal re-
sponsibility is a complex idea. Al
though criteria for determining
criminal responsibility have changed
through the years this concept has
remained essentially unchanged
and unanalyzed since our ancestors
first formulated it. Three separate
and unrelated factors are involved:
/. Moral responsibility Of the
criminal;
2. Adequacy Cor, one might say.
efficiency of the criminal as
deterrent example before the law;
8. Efficiency Of punishment as 0
means of rehabilitating the GRIM
inal.
As mentioned previously, moral re-
sponsibility has been well known as
factor in criminal responsibility.
If we abandon this factor, as ad-
vocated here, we are left not with
nothing, but with the other two
factors. deterrent efficiency point
q and efficient punishability point
81. Using these two factors, we
can administer the law just as ef-
fectively as with all three; more
effectively, in fact, since deterrent
efficiency and efficient punishability
are both ideas about facts of per-
sonality which science can deal with,
while moral responsibility involves
realm about which science can say
nothing.
In effect, we are now revising
the concept of criminal responsi.
bility to include just two factors.
Administering criminal law in
wolves striking a balance among
these three general efforts to pro-
tect society from criminals:
/. Preventing further malfeas-
ance by the criminal.
2. Deterring others from com.
mitting criminal acts.
8. Maintaining humane means Of
administering the law consistent
with the humane purpose of the law.
One way to prevent further NAL
feasance is to isolate the criminal
from society through imprison-
ment, disqualification or execution.
Another is to rehabilitate him into
a good citizen, either through psy-
chiatric treatment in or out Of
hospitals, or by punishment, in or
out of prison. Punishment as q
method of rehabilitation is given
in the same educative spirit as in
punlShing a child.
Deterring others from criminal
acts is accomplished by creating
examples through punishment of
convicted criminals as a warning to
potential offenders.
HumanenelS toward criminals Is
guaranteed by inf1icting no I'M
punishment upon the
criminal. Necessary" punishment
is the minimum sufficient either
to rehabilitate the criminal by
teaching him lesson, or sufficient
adequately to deter others from
violating the law, or sufficient to
accomplish both aims at once. The
advantage of imprisonment is that
it can provide punishment sufficient
for both rehabilitation and deter
ment while also isolating the crimi-
nal from society.
The lnsone Criminal
But not all criminals can be
rehabilitated by punishment.
This is the case with the insane
criminal. Consequently it is in
efficient, unnecessary and inhumane
to punish the insane for purposes Of
rehabilitation. Furthermore, in
sane criminals do not make good
deterrent examples before the law
because they seem so different from
the rest of us. The crucial rule of
thumb is this:
The best deterrent examples are
those most like ourselves.
Moreover, the insane criminal
does not make a good deterrent
example for other insane persons
because these persons are too lost
within themselves to be influenced
by examples of any kind.
Therefore, in our endeavors to
be humane we hesitate to inflict
punishment on insane criminals,
knowing that such punishment
serves neither to rehabilitate them
nor to create an efficient warning
to others.
1t now becomes clear that when
we try to distinguish between
mentally Ill and normal criminals,
ostensibly to determine whether or
not they are morally responsible,
we are really trying to decide (r)
whether the criminal is sufficiently
normal-enough like most of us
to serve as an efficient deterrent
example before the law and (2)
whether he is normal enough to
mend his ways II taught a lesson
by punishment.
In cases of temporary insanity"
brought on by adequate provoca-
tion," it is the circumstances sur
rounding the crime rather than
the personality of the criminal that
are too unusual to require deter
rent of repetition by either the
criminal or others.
There is much more to be said
about all this. but I shall break
off here with one last comment.
On framework such as I have
the role of the psychia-