Hentig, Hans V.

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Journal of Criminal Law and CriminologyVolume 24Issue 6 March-April Article 7Spring 1934Clinical Method in Teaching Criminal Law, TheHans V. HentigFollow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclcPart of the Criminal Law Commons, Criminology Commons, and the Criminology and CriminalJustice CommonsThis Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted forinclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons.Recommended CitationHans V. Hentig, Clinical Method in Teaching Criminal Law, The, 24 Am. Inst. Crim. L. & Criminology 1081 (1933-1934)THE CLINICAL METHOD IN TEACHINGCRIMINAL LAW'HANS V. HENTIG2A number of elements in effective crime repression are foundoutside the specific content of the law. Unfortunately, the laymen,frequently represented by the visible or invisible legislator, limit theirefforts to the verbal formulation of penal law paragraphs. Whenthis has been done, they believe they have seized the reality of crime,shattered its structure and changed it effectively, according to thestrength or weakness of the dose of punishment they have applied.We know that reality does not correspond to this simplified-onemay well say, naive causal view. And therefore, we see failureseverywhere where the treatment of social missteps exclusively fol-lows the fetish of the law.The social order of a people has no specific value. It is onlyone form of self-expression and development. The social order maybe felt as a distinct aid in living, if it lies lightly and protectively onthe animate, restlessly developing organism of a people. It may, how-ever, be felt as a hindrance in development when it becomes rigidand interferes with the expiration and building up of vital forces.The criminal law is the most obvious element in every socialorder. No social regulation penetrates deeper and with less considera-tion into human existence. Criminal law and its application does notfor a moment disengage our attention and our imagination. In thecriminal law-formulated as a defense and a threat-we are con-fronted hourly by the wisdom or imperfection, narrow-mindednessor liberality of our social organization. And we apportion the ex-tent of our cooperation in the enforcement of the law according tothe degree of inner assent or refusal which we feel for a wise or un-wise law.This ethical connection between the written law and-the citizenalone determines whether a threat of punishment will receive thatthousand-fold reenforcement which elevates it to a real force. Be-side the law stands the judge. He cannot burst the framework in'Translated by Regina Gottfried, Bureau of Social Hygiene, New Yorkcity.2Professor of Criminal Law and Criminology, University of Kiel; Co-editor, Monatsschrift ffir Kriminalpsychologie und Strafrechtsreform.[10811HANS V. HENTIGwhich the law places him. However, he has allotted to him by lawa wide margin for the exercise of judgment. He is able to effect anegative decision by suspension of proceedings or by acquittal, thusnullifying the law in this or that case. The people see the judge,and not the law. The judge-his mode of administering the law, theconfidence which he enjoys, or the distrust which is accorded him-is, therefore, a principal factor in effective law administration. Forthe cooperation of the people is accorded not only to the perfectlaw, but perhaps still more to the perfect judge. Every great reformin criminal law ought to begin with the personality of the judge.It was an entirely clear and correct view which, in the legends ofantiquity, envisaged the gods and kings-perfect beings-as placedin the seats of judges. The wise judge engenders loyalty to the law.By creating an inner bond of confidence and by mobilizing coopera-tive forces, the upright judge instills real life into the bloodlessshadow of the law.HI.When I have lectured to my students on criminal procedure orcriminal law, and spread before them, well separated, the screws,valves, pistons, and rollers of this complicated machine, I have oftenfelt that the university ought not be content to treat only the technicalside of this question. Legal practice his its own laws. The experi-ence which the young lawyer acquires in court is one-sided, falselydirected, and soiled by the innate cynicism of the struggle for repu-tation and wealth. After leaving the university, the personality ofa young lawyer begins to crystallize. With few exceptions, he be-comes insensible to influence.I have, therefore, attempted to teach the future judge not onlythe historical fundamentals of criminal law and criminal procedure,and the complicated interplay of rules of legal systems, as has beencustomary since ancient times. I have told myself that the judge hasa two-fold duty to fulfill, and must be prepared for it: first, thepurely logical, juridical function of defining certain events in termsof the criminal law; second, deciding on the question of the realityof the events-an empirical, psychological procedure which extendsfar into the explanation and evaluation of legal facts. Universityinstruction accomplishes the first duty; the second duty is not onlyneglected, but entirely overlooked. There were various possibilitiesfor an introduction to such study. Famous criminal cases offeredmaterial for discussion of complicated cases. The scene of the crimeTEACHING CRIMINAL LAW 1083and the personality of the criminal could be made alive by means ofphotographs. But all these methods seem to me to be too removedfrom life, and useful only in a subsidiary way.Therefore, in the summer of 1929, I decided to experiment withthe presentation of prisoners as a part of the instruction of criminallaw. At that time I was teaching at the University of Giessen, andI began these demonstrations in the Butzbach and Marienschlossprisons of Hesse. I used to visit the penitentiary with my students,and spend an entire Saturday afternoon there. Of course, it wouldhave been much more practical to gather and to present prisonersin the observation station of a criminological institute at the uni-versity. An institute of this kind had been discussed now and then,but the economic crisis had upset the plans.III.What is the preparation and the procedure for such a presenta-tion of prisoners? What knowledge have I gained by the use ofthis new method? I should like to stress the fact that perhaps, sincethe psychiatrist has for a long time made clinical instruction the basisof more advanced instruction, we may not here speak of a "new"method at all; we have merely applied to criminals the method al-ready in use with the insane.I prepare for the presentation of prisoners in the following -way:I select, in agreement with the director of the institution, a numberof cases which illustrate the theme which I have chosen for dis-cussion. For example, I present cases of the "genuine" criminal, theendogenous criminal, then of criminals who were overcome by strongenvironmental pressure, then, perhaps, the type of criminal who in-stigates crime, and the sort who is incited to commit crime, murderersof the various gradations, sex offenders, the intellectual criminal,various categories of recidivists, etc. I speak to all the prisoners tobe presented, and seek to understand their personality. I also en-deavor to make clear to them the purpose of the demonstration.No prisoner is compelled to appear; I must attempt to win their vol-untary cooperation. I do this by questioning them on their sentence.They usually complain that -the sentence was wholly or in part un-just. I then say to the prisoner that the young judge, exactly likethe young medical student, must see socially "ill" persons and be-come acquainted with the social conditions which cause such "ilInesP"before he can form a fairly just opinion of a criminal act and aguilty person. If he, the criminal, instead of scolding and complain-HANS V. HENTIGing, wishes to contribute to reform, he ought to let the future judgesee him and consider his case. Almost without exception, the pris-oners declare themselves ready to relate to the students the story oftheir life and the details of their crime, and to reply to my supple-mentary questioning.The demonstration is conducted in the following way: The manis brought in. I ask him to tell the story of his life. If he is em-barrassed or excited, I try to quiet him by a few divertive questions,and then lead up to the crime gradually. I always emphasize, inthis connection, that the offense is not the main thing, but that every-thing which preceded it is more important. I regularly ask the pris-oner what qualities must have been lacking in him and what traitsin his environment which, in his opinion, would have prevented thecrime. In this way, I try to direct the students, and also the crim-inal himself, to an etiological point of view. I also ask, withoutexception, what the prisoner thinks about his future after discharge;what he would do if, by some chance, he was discharged the follow-ing day; what is his position on the question of recidivism; whatpersons and situations will aid him during the first, difficult period,or which are likely to be of a dangerous nature.It is astonishing how openly many prisoners view the poor out-look in their position: the ineradicable nature of unfavorable quali-ties, especially of a certain lack of will power; and the socially up-rooting effect of repeated prison sentences. The fact that the lawthreatens or does not threaten with a specific penalty plays an alarm-ingly insignificant r6le. We see the criminal law dethroned from theheights where it alone ruled-it has become a single, comparativelynot so very significant causal factor within a sum of centripetaletiological forces. Of course, the questioning of the prisoner andhis own explanations is only one part of the procedure. The prisonerexaggerates. He makes excuses for his crime. He is engaged inthat transforming process whereby we extenuate all our failures andlook for a guilty person outside ourselves. After the prisoner hasleft the room, I therefore offer for comparison the prisoner's testi-mony at the trial and the conclusions reached in the judgment, ac-cording to the proceedings of the case which I have read in advance.As a rule, I purposely let the matter rest with this presentation, ofthe opposite side. The short acquaintance with the prisoner is notsufficient for an accurate opinion; moreover, I do not regard it asmy duty to check up on legal decisions, even if I have considerablemisgivings, but to introduce my students to the technique and psy-TEACHING CRIMINAL LAW 1085chology of judging the facts of a case. When the whole case islaid out before us, in a contradictory way as it were, I usually askthe director of the institution, who is present, the physician, and theparole-officer to give their opinion of the prisoner. Some of theofficials know the man better than I, and their prognosis is altogetherinstructive. Finally, I allow the students to ask questions, whichI answer, or ask one of the expert officials of the institutions to an-swer. Four to five cases are presented in this way during an afternoonThe time passes quickly, and the students are usually astonishedwhen the three-to-four hour clinic, which is interrupted only by ashort intermission for tea, is at its end.IV.I began these demonstrations in Hesse, in the prisons of Butz-bach and Marienschloss. I continued them, when I became professorof criminal law at the University of Kiel, in the central prison atNeumiinster, the men's penitentiary at Rendsburg, and the women'spenitentiary at Lilbeck. The prosecuting attorney of Kiel, as wellas the directors of these institutions, have supported my endeavorswith much understanding. Since I do not wish the number of stu-dents to exceed fifty, it has been necessary, as a rule, to refuse someapplicants. Perhaps, it would be better here to allow the studentsto express their opinion of the effect of these presentations. Onemay readily believe those who maintain that they have gained newinsight into the character of criminality, the function of the criminallaw, and the effectiveness of legislation directed toward crime pre-vention and repression. In the case of the majority of the studentsthese impressions will endure, I believe, in spite of the wearing-offprocess of practicing law. I should like to add that, as a matter ofprinciple, I take women students to the men's penitentiary and mento the women's penitentiary, for the male judge must later deal withwomen too, and the female judge with men. Difficulties have neverarisen; in a single instance, an exhibitionist asked that the womenstudents go out before he related his offense. I found the requestentirely reasonable, and fulfilled his wish immediately.In Germany, aside from the open-approval received from crimino-logical experts, objection has been raised that these demonstrations arcunpedagogical because they use the prisoner as object of the instruc-tion and wound his dignity. After three years' experience and care-ful self-criticism, I consider these doubts unfounded. It is preciselyhis dignity which the prisoner sees respected, and he dwells on the1U86 HANS V. HENTIGfact that university instructors are endeavoring to train a generationof judges who, in addition to knowledge of the theory of law, willpossess insight into the phenomena of life. I consider it right to gainthis experience not by experimentation on the accused person, the"living" object, which involves all sorts of errors; but to gain itfrom a study of the phantom, as it were-the prisoner. Withoutdoubt, the result will be improvement in the administration of jus-tice, greater confidence among the people who live under the law,and as a result, greater effectiveness of the law.What the student learns from such demonstration is not merelyinsight into the causal chain of every criminal act. and thought onpreventive possibilities. He also gets accustomed to ask himself thequestion as to what, in addition to the mere threat of punishment,is to be done with the prisoner, what readjustment of external livingconditions and mental influences is to be effected, in order to reinstatehim in society. With the sentence, the purely juridical considerationof a case is ended. No attention is paid to the most important sub-sequent problems. Furthermore, the student learns from these dem-onstrations, in a sort of play, what he never again forgets: thetechnique of questioning difficult people; quiet, objective dealingswith a criminal, without unnecessary brusqueness and severity; andreflection as to what in the prisoner's statements is credible and whatis not-something fixed rules can destroy. He learns to refrain fromfalse credulity or incredulity. The jurist acquires all these things inthe practice of law only after many small and major blunders.Sometimes he never develops these essential technical and psycho-logical methods. We have all made the acquaintance of such judges.V.The presentation of prisons represents, I believe, substantialprogress in juridical pedagagy, and should be tried out in othercountries too. In Germany, Graf Gleispach of Vienna and ProfessorExner of Leipzig have used similar methods, in somewhat differentform, to be sure. As far as I know, Gleispach and Exner do not useconvicts and women criminals because they do not visit the prisons,but draw on prisoners held for trial and available in Vienna andLeipzig respectively. Theoretically, the best solution would be tohave a criminological clinic in the university with two dozen cellswhich would draw material from the prisons as the need might arise.In such an institute the prisoners to be presented could be studiedwith much greater care, and the clinical instruction thereby greatly en-TEACHING CRIMINAL LAW 1087.hanced in value. In Germany, we can only make such plans, forthe present; we cannot carry them out.To supplement the presentation of prisoners, I present in Kiel,in a practicum on forensic psychiatry, mentally diseased or defectivecriminals. The course is given at the University Psychiatric Institute,in cooperation with the Director of the Clinic, Professor Stertz, andProfessor Wedemeyer, a teacher of civil law. During one semestermy students saw, in both courses, over sixty cases; instead of dead,always numerically increasing rules or paragraphs of law, they sawthe living person and the tremendous difficulty of correctly judgingand treating him. I believe that I am on the right road in this at-tempt to train a new type of judge.

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