Bugelski, B. R.

English

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Buffalo Law Review Volume 16 Number 2 Article 3 1-1-1967 Changing Values in Criminal Law—Comments on Professor Hall's Paper B. R. Bugelski University at Buffalo Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Criminal Law Commons Recommended Citation B. R. Bugelski, Changing Values in Criminal Law—Comments on Professor Hall's Paper, 16 Buff. L. Rev. 360 (1967). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol16/iss2/3 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. CHANGING VALUES IN CRIMINAL LAW-COMMENTS ONPROFESSOR HALL'S PAPERB. R. BUGELSXI*D R. Hall is concerned over the erosion of criminal law because of the develop-ment of views and practices in society on behalf of defendants thateditors sometimes describe in the statement "make everyone guilty except thecriminal." He wants to preserve the law which he perceives as a time honoredvalue of a rational society from further erosion. He does admit some irrationalelements in the law, but finds it basically a logical product of centuries ofthought and experience. He sees eroding operations on many sides and men-tions, among others, the adjustments the law has made for the insane (tem-porary or otherwise), the alcoholic, the mistaken, the coerced, the tired, confused,and the young. There are also the common practices of probation, suspendedsentence, waivers of felony charges, "the copping of pleas," paroles, etc.I am not so sure that the law described by Professor Hall as "the precisedefinition of criminal conduct, prescription of the maximum sentence, and,of course, the ban on retroactivity,"' is a value of our culture. The currentvalues of society seem to have changed into a concern over civil rights, includingthose of criminals, rather than a concern over guilt and punishment. Allegedcriminals are frequently discharged by the courts because of the illegal mannerin which the evidence against them was "obtained, and not because of a findingof innocence. There has also come into the picture a disillusionment over therole of punishment. We no longer seek revenge, yet prisons are not reallyexpected to reform felons. The law is perhaps more correctly seen as an ex-pression of the culture, a set of protective devices for the dominant segment ofsociety and frequently for the benefit of certain individuals in the culture whomanage to get laws enacted for their own benefit, while they violate sanctionsdeveloped to protect the interests of others. Some of the pillars of our societycheat on their income tax returns. The law is a reflection of current interpreta-tions of the nature of man. It changes as the views of society about the natureof man change. The law is not an unchanging reality in itself, although wemight agree that the "principle of law" might be. How the principle is imple-mented would vary from time to time, and with different segments of society.In any event, the law is not a sufficiently serious value for those who violate it,and it is with these violators, the criminals, that we are concerned.Dr. Hall indicated that he was not inclined to endorse a deterministicprinciple in his approach to criminology. This is unpleasant, ignoble, andincongruous to him, and he would prefer people to be rational and somehow* Professor of Psychology; Chairman, Dep't of Psychology, State University of NewYork at Buffalo.1. Hall, Psychiatric Criminology: Is it a Valid Marriage? The Legal View, suprap. 350.CHANGING VALUES IN CRIMINAL LAWlook for better solutions than their pasts would predict. I rather doubt thatanyone is really capable of finding a better solution to his problems than hishistory provides, even though we may not be at the stage of development ofbehavioral science to make these predictions for the problem solver. I alsodoubt that the question of determinism can be resolved here, and am glad toby-pass it in favor of some other comments. We should note, however, thatstrong social pressures, including those arising from Freudian views, are currentlyactive to relieve everyone of responsibility. Today the criminal is generallyviewed as someone who could not help himself, a victim of unconscious forces,faulty rearing, the bad environment, the broken home, the working mother, etc.But let us forget "unconscious forces" and accept the fact that a criminal,say a purse-snatcher, "knows" what he is doing, namely, snatching purses. Thelaw (i.e., courts, juries, prosecutors) also wants him to recognize (appreciate,know) that this is wrong. He may well know that it is illegal-that is, that someother people have passed laws saying that purse-snatching is bad, evil, sinful,etc.-but it is obvious that the purse-snatcher does not agree. For him it maybe "dangerous" but it is not necessarily wrong. It may even be right and good,especially if the purse is fat. What I am describing is a case of dissocial re-action or of a sociopath, a member of a class psychiatrists once called psycho-paths. Such individuals are "outlaws" and live in their own culture, with theirown rules and laws; they are enemies of the dominant culture which passed therules that are in conflict with their own. Our national crime syndicates havetheir own legal system.How does the law treat the sociopath? Does it consider the rationality ofthe behavior from the criminal's viewpoint? If he is young and from a slum,or a drug addict, there may be some talk of "another chance," "faulty environ-ment," need for reform, rehabilitation (note the absurdity of rehabilitatingsomeone who has never been habilitated). Too great a concern over therationality of the criminal might require social reforms that are not too attractivefor the defenders of the status quo. If the criminal is old, a member of a crimesyndicate, a two- or three-time loser, he is jailed when caught and the lawcloses its weary eyes to his rationality. The law does not want to hear Valachi'slogical reasons. The rational law, the law of sensible men (that is, the law-makers), then does not apply to sociopaths-they know what they are doing,they know that it is considered wrong by someone else (they make every effortto conceal their crimes or escape capture), but they do not consider theirbehavior at all irrational or wrong. Nor are they driven by forces any moreunconscious than those that drive the lawmakers. For the purse-snatcher thelogical thing to do when you need money is to snatch a purse. Criminal lawpresupposes that the criminal agrees to the wrongfulness of an act, whereashe obviously does not. He does not "know better" and, according to a rationallybased law, he should not be punished. He should be taught to really appreciatethe values of a society to which he does not really belong. Punitive sanctionsBUFFALO LAW REVIEWare not appropriate. They are used to get rid of a problem. Sociopathic criminalsare not punished so much as "caged." Punishment is not expected to changethem. They are locked up and given television sets. Valachi has onelBesides the sociopaths we have the neurotics and psychotics. Some psychoticsare brain-damaged, or otherwise physically diseased, and their crimes are clearlyexcusable. Others have lost touch with reality (not in the interpretation ofDr. Hall-some of their intellectual functions might be quite adequate); thetextbook paranoid can plan an involved scheme to destroy a family or a churchcongregation-he just doesn't realize his own nature or status. If he thinks heis an avenging angel he is out of touch with reality even though his IQ is 150.He too will be excused; this time by psychiatrists. In fact, the more people hemurders the more likely he is to escape legal sanctions. Even the public willsay "only an insane monster could perform such foul deeds." Dr. Hall assumesthat the capacity to think rationally and effectively is somehow "integrated"with the rest of an individual's personality or behavior. This does not mean, asDr. Hall apparently takes it, that an intelligent person cannot be psychotic.There is probably normal range of intelligence in state hospitals for the insane.They may be psychotic but not necessarily ignorant. Such integration as existscould incorporate anti-social motives, as well as noble ones.The neurotics provide the most difficult cases. The psychiatrists try toshow how they are victims of their anxieties and defenses. It is frequently saidthat they are "sick," although some maverick psychiatrists like Szasz call thissickness a myth. Here the law has its greatest problems. You should notpunish the sick, even if their sickness is not such as responds to pills, or canbe described in terms of fevers, chills, rashes, and aches or pains. Dr. Szaszargues that they must be treated as criminals if they break laws. Psychiatristsshould not attempt to plead their cases lest the dispensation of justice fall intothe hands of psychiatrists and not of lawyers. Recently a local judge indicatedthat he would like a psychiatric judgment before a trial. The psychiatristswould then determine if a trial was in order. This is complete capitulation ofthe judicial function to what even the practitioners admit is a shaky science.But Professor Mowrer,2 a psychologist of Illinois, argues paradoxicallythat neurotics are really criminals, sinners, doers of wrongs, who need punish-ment as therapy. To free them in courts of justice is to condemn them to anunrelieved pursuit of their neurotic patterns. According to Mowrer, the onlycure for neurotics is confession, restitution, and punishment. The neurotic isthe only appropriate person to bring before the bench. He has some conscience,i.e., recognition of the dominant mores (not enough to keep him from a crimeor crimes, but enough so that he is disturbed when he violates the ethical-moral-legal code of the dominant culture of which he is a somewhat unintegratedmember). Because he has some conscience he suffers in neurotic malaise. Hecannot help what he did-the irresistible impulse is a correct enough label for2. Mowrer, The New Group Therapy (1964).362CHANGING VALUES IN CRIMINAL LAWany crime committed (if it is committed it certainly wasn't resisted). Yet, forhis own good, he should not be excused. He should be tried and punished accord-ing to a law he grudgingly respects. No paroles, suspended sentences, or reduc-tions of pleas; these will not help him, but only perpetuate his condition.We come then to the conclusion if we go along with Mowrer, that the lawis required to treat neurotics. Normal people, by definition, do not commitcrimes. Professor Hall stated: "given normal intelligence, there will be normalcontrol of conduct."3 The law-making public wants protection against crime,yet psychotics and sociopaths are not to be punished by a rational legal system,they must be cured or reformed or reeducated, except that we do not have thefacilities, manpower, or skills to do the job. The only criminals for whom therational law is needed are irrational neurotics. They know right from wrong,but could not help what they did; yet, even so, they need trials, convictions,and punishment, not to satisfy the law, but to cure their neuroses. The lawmust be maintained for the good of neurotics, not because it is a rational valueto man.3. Hall, supra note 1, at 356.

Changing Values in Criminal Law—Comments on Professor Hall\u27s Paper

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Changing Values in Criminal Law—Comments on Professor Hall\u27s Paper

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