87th YEAR OF CONTINUOUS PUBLICATION
by JUDGE JOHN F. PERKINS
SOME years ago George Agassiz found the answer to the age-old conundrum, “What would happen if an irresistible force met an immovable body?” “The answer,” he said, “is perfectly clear. The result would be an inconceivable disturbance.”
To most people, this would suggest the ultimate in general confusion, but after twelve years as a juvenile judge I am not sure it is. I believe the ultimate confusion already exists and that it is in the field of law enforcement. I believe there should be a systematic and critical re-examination of certain assumptions which are accepted as fundamental by “advanced” thinkers and have been built into a kind of patter — a social worker’s pidgin English — which is used at conventions of social workers and probation officers, is taught in schools of social work, and constantly appears in articles in the magazines. From our experience at the Boston Juvenile Court we believe that these assumptions are not true: they are half-truths. We believe that the social philosophy which has been built on them is aggravating the evils it purports to remedy, and that not only does it demoralize the individuals to whom it is applied, but it also constitutes an insidious attack on our fundamental liberties.
In this article I shall discuss the assumption which is perhaps the most widely accepted. It may be called the Doctrine of Individual Treatment.
This doctrine is the prevailing creed of social workers. It is also widely held by probation officers, it is accepted by many judges, and it has influenced the decisions of some of our highest courts. At the present time a powerful drive is being made to secure its adoption as the principle which shall govern the law enforcement of the whole country.
A model statute embodying the doctrine has been prepared by the American Law Institute, an organization of the highest standing, and one with great influence. This statute is called “The Youth Correction Authority Act.” The proposal is that every state shall adopt it. Although as drawn the statute is limited to adolescents, to youths between juvenile court age and twenty-one, the Institute frankly says that this limitation is inserted from motives of expediency, to make the passage of the Act more acceptable to the legislatures, and that as soon as feasible an effort will be made to extend the application to all criminals.
A high-pressure organizer has been hired to “put the law across.” Already California has passed it. In many other states, large sums of money have been raised and powerful groups have been organized to secure its adoption.
From our experience at the Boston Juvenile Court we believe the doctrine is fundamentally bad, that it is a poisonous concoction brewed from a false analogy to medicine and a misconception of the nature of teaching.
This is the doctrine of individual treatment:—
Copyright 1944, by The Atlantic Monthly Company, Boston, if Mass. All rights reserved.
1. Each offender should receive individual treatment based on his personal characteristics and not on his misconduct. His misconduct is merely a symptom of disorder, and has been caused by his personal qualities. Therefore, the measure to be used in determining what discipline to impose is his personal characteristics, not what he has done; and the discipline should be determined solely by its probable effectiveness in correcting his faults.
2. Because each person is an individual and different from anyone else, the discipline imposed on one person should not be influenced by the discipline imposed on another.
3. Correction should be the sole criterion of the discipline used. Nothing should be done to the offender which is not designed to correct his faults. Any discipline which does not contribute to this end is useless; for the sole purpose sought is the correction of the offender’s evil tendencies and his return to society as a good citizen at the earliest possible moment. Any discipline which hampers the cure and makes it more difficult is worse than useless: it is definitely harmful. Punishment has proved ineffectual as a corrective and also as a deterrent. It is revenge, and it should be replaced by corrective treatment. However, punishment may be necessary for therapeutic purposes.
WHAT does this doctrine really mean? How far can it be applied? Is it possible to detach a person from the other people in the community, as the doctrine suggests, and, so to speak, to deal with him in a test tube? Can this be done without creating serious difficulties and complications which will more than offset any benefits which may accrue?
From the many experiences which raised these questions, I have selected a few in the hope that by describing them I can convey some idea of the difficulties and problems we have encountered.
Shortly after my appointment as Juvenile Judge, I had lunch with two distinguished penologists, both of whom held high positions in the state service. At this time I had heard only vaguely of the doctrine of individual treatment as applied to offenders and I was curious to find out about it.
“I understand that you don’t believe in punishment,” I said.
“No,” one replied, “we believe in individual treatment.”
To cover my ignorance, I asked, “Do you use it on the prison guards?”
To my amazement, both of my companions struck the table with their hands and exclaimed in one voice: “Ah, there’s the trouble! There’s the trouble! ”
“They present a major problem,” one went on. “They are indifferent about carrying out orders; it is difficult to find any method of disciplining them; and if you fire one of them, you find a swarm of politicians round your head.”
I was completely taken aback. Here were two high-minded people almost violent in their desire to punish the guards for failure to do their duty acceptably. They showed no interest whatever in their welfare. The guards must meet the conditions required by their job, “or else,” and that was all there was to it. And the guards were still citizens in good standing. But for criminals the rule was different. For them the penalty for failure to meet the very moderate conditions required for citizenship should be adjusted for their benefit.
Many questions rushed into my mind. Suppose a guard lost his temper with a prisoner, struck and killed him, would he be considered a criminal at once, and be immediately entitled to individual treatment, specially designed to correct his weaknesses, or would he have to be tried, convicted, and sentenced to prison before he could qualify? Why should the rest of us have to take the consequences of our failures and criminals be exempted if the consequences of their acts are prejudicial to their interest?
One morning before court opened a psychiatric social worker came to see me. “I wish to speak to you about a case coming before you this morning,” she said. “It is the case of a boy who is in our care. He was placed there by the—Court. The doctor feels that his conduct is due to a deep-seated emotional disturbance which needs careful treatment to remove. Excellent rapport has been established between the doctor and the boy, and the boy has been placed in a foster home which he likes very much. Dr. X thinks that if the present situation is disturbed, it is likely to upset the boy and to crystallize his emotional disturbance so that it may become impossible t o remove.”
“What did the boy do?” I asked.
“He stole a car, and was arrested on the Worcester Turnpike.”
“ What did he do before, at the time he was placed in your care? ”
“He stole a car. Before that he stoic two bicycles. His disturbance takes the form of wishing to go fast.”
“How fast was he going this last time?”
“About seventy miles an hour.”
“How fast the time before?”
“I believe it was about the same.”
“And what you would like me to do is to disregard this incident entirely?”
“Oh,” she said, “I suppose you will have to make a finding of delinquency, but we hope that nothing will be done to disturb his treatment or make him leave his present foster home.”
“In other words you believe coming to court should be the only consequence of his stealing the car. How old is the boy?”
“I am sorry,” I said, “but I can’t do what you ask. You are asking me to leave a fourteen-year-old boy, who likes to steal cars and drive at seventy miles an hour, in a position where he can do it whenever the impulse seizes him. I can’t permit it. It is my job to protect the community.”
“But you may make it impossible ever to cure him,” she exclaimed.
“Even so,” said I, “the community comes first.”
“But I thought the whole idea of the juvenile court was the good of the individual.”
“Which individual?” I asked. “The individual who breaks the law in reckless disregard of other people’s safety, or the individual who is behaving himself as he should and is entitled to protection? If this boy goes on, he is almost sure to kill somebody. There is nothing more dangerous than a fourteen-year-old boy who drives at seventy miles an hour on the road.”
“But what can we do for the boy?” she said.
“If you can get someone to pay his tuition,” I replied, “I’ll let him go to the A. B. C. Republic. There is an excellent psychiatrist there. But I’ll give him a suspended order to the Lyman School (one of the Massachusetts Training Schools), and if he breaks down again he’ll have to go there.”
She obtained the money needed and the boy went to the Republic. The first Sunday he stole a car, drove to a near-by city, abandoned the car, stole another, and came roaring down the Worcester Turnpike at seventy miles an hour. He was picked up and brought to court.
“Well, Henry,” I said, “you have asked for it Now you’ll have to go to the Lyman School.”
“I’ll steal a car whenever I want to,” he said defiantly, “and nobody can slop me.”
I spoke to the Superintendent of the Lyman School: “Here is a boy who, according to the Clinic, is suffering from a deep emotional disturbance. That may well be true, But it is also true that each time he has done something he shouldn’t, someone has stepped in between him and any unpleasant consequence of his act. Each time he has won out. It gives him a great kick. And just as long as he can do what he wants and get away with it, he will have a sense of superiority and satisfaction and will not try to change his ways.”
At the Lyman School, for a time, the boy was sullen and antagonistic, but finally the Superintendent managed to arouse his interest. Satisfaction came with legitimate achievement and he turned into a friendly, well-behaved boy.
SOCIAL workers, instructors in schools of social work, and other so-called “ socially-minded ” people frequently come to visit our court, and in talking shop with them I make a practice of asking if they believe that the court should make the individual welfare of each delinquent the sole criterion of what action it should take, and that any action which does not serve this purpose is bad. Almost universally they answer unhesitatingly in the affirmative.
When I ask whether society should not be protected, the usual answer is that the aim of society should be the good of the individual. The head of one large organization which is in contact with the courts all over the country varied this formula slightly. When I asked him if the community should not be taken into account, he smiled cheerfully and said, “What is best for the individual is best for the community.”
So impressed was I by the widespread and complete acceptance of this idea that in speaking to a class in criminology at a women’s college I took occasion to suggest that the idea of giving the individual the right of way over everything was too sweeping. In substance this is what I said: —
“In any task we undertake, success depends on meeting certain conditions. If one wishes to play in an orchestra, he must play in tune and in time. If he does not do so, he fails to meet the essential conditions, and he will be excluded from the orchestra, It does not make any difference whether his exclusion is beneficial or harmful to him. The measure is his ability to meet the essential conditions, to play correctly — not whether it is good or bad for him to be in the orchestra or kept out of it.
“If a locomotive engineer is habitually late and disrupts the schedule of trains, or if he get s drunk, runs through a red light, and has a train wreck, he will be discharged. You can’t run a railroad properly if trains are constantly late, or if engineers get drunk and have train wrecks. And whether his discharge is harmful to him or not does not change the situation.
“Experience has shown that, in any group or community, violence and stealing impair orderly development and progress. Most crimes consist of a form of one or the other. So it has been made a condition of living in the community as a citizen that everyone must abstain from violence and stealing. If a person cannot meet this condition, he forfeits his freedom. Why he cannot meet this condition is not the immediate question.
“The welfare of the community requires that this condition shall be enforced and that he shall be placed under control. And whether this is good or bad for him is not at the moment important. The fact that he cannot meet the condition is the controlling consideration, He may be deliberately wicked; he may be simply ignorant and untrained; he may be insane or feeble-minded. But in any case he must be put under control and kept under control until he establishes his ability and intention to meet the conditions which society imposes for the good of all. To do anything else would put the interests of one individual ahead of the interests of all the other individuals in the community.
“We seek a just society, a society which will provide conditions favorable for us to live together happily and to develop our best qualities, favorable for our children to realize their latent abilities and to apply them to fine purposes. We want a society favorable for the individual, but not every individual can have conditions especially suited to his needs.
“If a person gets a contagious disease when away from home, is he allowed to travel home on a train or is he put in the contagious ward of a hospital — even if this treatment is distressing to him? If a desperado gets loose or a riot occurs, are we not all liable to be sworn in as special officers and required to risk our lives? Are not firemen and policemen required to perform duties which often result in their injury and death? And how about several million of our finest boys, now fighting for the country and being wounded, maimed, and killed?
“In short, we all know that it is not any particular individual that counts. We are working for a system, for conditions as favorable for the development of the individual as we can make them. We want liberty, equality under the law, equality of opportunity. We want a government of laws and not of men. We want to be treated fairly under a merit system in which we shall be rewarded according to our accomplishment. It is our way of life which is sacred. It is the duty of every one of us to defend it, if need be with his life; every one of us, except — so runs the argument — the criminal, the person who attacks it and attempts to destroy it. Nothing must be done to him which might prejudice his chances of rehabilitation.”
SOME years ago two boys were brought to court for committing a number of burglaries in the South End of Boston. They were given suspended orders to the Industrial School and sent to the Clinic for study. Before the report regarding them was received they were brought in again for fifteen more burglaries. I called up the Clinic. The report was just ready but had not been sent, and it was read to me. “Smith,” it said, “should be sent to the Industrial School. Brown should be placed in a foster home.”
“Why do you recommend that?” I asked. “There was no indication that either dominated the other.”
“Oh, no,” was the reply, “but Brown is better material than Smith.”
“Why not send Smith to a foster home too,” 1I said, “and treat both boys alike?”
“It’s not worth while sending Smith to a foster home. He is poor material, a typical Industrial School boy.”
“But I can’t discriminate that way,” I exclaimed. “How could I justify it to the boys? Both would think it utterly unfair. It would be just plain favoritism.”
“We need not worry about that,” was the answer. “The question is what is best for the individual boy.”
I sent both boys to the Industrial School. Later I saw one of the doctors from the Clinic and spoke to him about this case.
“I don’t see how the Clinic could have recommended such discrimination,” I said.
“Oh,” he answered, “that’s just your legalistic point of view.”
“Perhaps it is,” I replied. “But we used to call your point of view favoritism when we were in school, and the boys did not like it.”
“But people are different,” he said. “No doctor treats all his patients the same way.”
“This isn’t doctoring,” I answered. “This is imposing a discipline. A patient voluntarily accepts the doctor’s decision. He puts himself in the doctor’s hands. The doctor is his agent, acting for him. These boys did not accept voluntarily what was handed to them. Whether I had agreed with your recommendation and discriminated between them, or had treated them alike, as I did, they would have had a discipline imposed on them against their will. In either case they were being made to do something they did not want to do. You are using a false analogy.”
“But what we are after is the result,” said the doctor. “One boy was better than the other — had superior qualities. We ought to make the most of the material we have. The boys will forget about the discrimination.”
“ I don’t see how you or I have the right to decide which boy is superior. That is assuming the attitude of a despot. How about equality under the law?”
“There you go with your legalistic point of view again,” said he.
“I wonder,” I answered. “After all, what you call the legalistic point of view is the product of immense experience. Suppose the umpire in a football game saw two opposing tackles slugging each other. Think what would happen if he said to one, ‘You have an inferiority complex. That makes you aggressive, and if I put you out of the game, it would aggravate your sense of inferiority and make you more aggressive. So you may stay in.’ And to the other, ' You have a sadistic tendency. I noted a distinct expression of gratification on your face when you poked Smith in the nose. This tendency must be nipped in the bud. You must leave the game!’ Isn’t that just what you are advocating?”
“You are being extravagant,” was his reply.
I am still wondering. We are trying to get these boys to discipline themselves. We cannot give them self-control. They must get it by their own efforts. Correction is not doing something to a person like removing his appendix and permitting a process already established to resume its function. It calls for good teaching in the larger sense, and the purpose of teaching is to help — to help a person to see clearly what he should do and to encourage him to try his best to do it; to help him overcome his personal difficulties and realize his latent abilities; to help him develop an inner strength to face life with courage and hope, and to take it as it comes.
Of course, to give this help calls for intimate knowledge and sympathetic understanding of the most personal and individual character.
But what effect will unsupported discrimination have on the boys? Won’t it make the favored one think that he is superior, something special, and that conditions should be arranged to suit him? Will this help?
Won’t it make the other boy feel that he is regarded as intrinsically inferior? Will it not strike at his self-respect and create a bitter sense of humiliation and injustice? Will this help?
Will it help if we violate the law of cause and effect and, without any basis which the boys can see or are willing to accept, impose a more severe punishment on one than on the other?
I realize that the word punishment will not ho used. It: will be called treatment. But the boys consider it punishment. It is something unpleasant imposed on them by force for what they have done. The only explanation for treating them differently which they can grasp is favoritism by authority. Instead of giving the boys the idea that they must meet the same test, that what is sauce for the goose is sauce for the gander, that each must overcome his own weaknesses and make the grade, they will be taught that, regardless of what they do, they will be treated as authority sees fit.
Each day in reading the war news we are deeply stirred by stories of heroism — stories of boys acting with amazing effectiveness in the most desperate situations, bearing discomfort, pain, and illness with indomitable courage, determination, and cheer. And what stirs us is the spirit which animates these boys, the spirit of utter loyalty to their job and of complete disregard of self. It gives us a feeling of deepest reverence and humility, for we know — know beyond all questioning or argument— that this spirit is the central reality, the very core of life.
Shall we engender this spirit among our young people if we teach them that they themselves are the measure of life; that nothing should be done to them which does not favorably affect their personalities, and that what is done shall be determined by a public official? Will this make them devote themselves to noble purposes, or will it teach them that the favor of those in power is the true aim of life?
Stripped of all its elaborate wrappings, the doctrine of individual treatment may be expressed by one word — injustice. Its basic principle is arbitrary discrimination, discrimination unsupported by tangible evidence. Without reference to any standard of conduct, a public official will determine whether we are deserving or undeserving, as he sees fit. There is to be only one restriction. He is not allowed to be fair. He must base his decision on his estimate of our personal characteristics — and no two of us are alike. The word merit will become obsolete. All signs of a government of laws will disappear. We shall have a personal government. Equality under the law will go out the window, and with it all hope of equality of opportunity in the future.