CAPITAL PUNISHMENT
AND
ITS ALTERNATIVES

by

David C. Hakim

Jurisprudence

Instructor:  Dr. Shuman

February 11, 1966

CONTENTS

INTRODUCTION                                                                                  

ANALYSIS OF ARGUMENTS ON THE DEATH PENALTY               

     A)  DETERRENCE THEORY                                                      

     B)  RELIGIOUS THEORY                                                            

JUSTICE IN THE CRIMINAL PROCESS                                      

AGGRESSION AND CRIME                                                           

ALTERNATIVES TO CAPITAL PUNISHMENT                           

     A)  THE PREVENTION OF CRIME                                           

            1)  GENERALLY                                                                    

            2)  THE POTENTIAL DELINQUENT                                 

            3)  NECESSITY OF THE PATIENT-

                  PSYCHOTHERAPIST PRIVILEGE                             

     B)  TREATMENT OF THE CRIMINAL                                     

CONCLUDING COMMENTS                                                         

“There but for the Grace of God go I.”[1]

INTRODUCTION

Murder, which is punishable by death, yet is only one of the crimes with death being possible as punishment in most of the world,[2] is defined in a variety of ways, but generally it is the killing of a person by one who forms an intention prior to the act of killing, done without justification (such as self-defense[3] or defense of wife, husband, child, or servant[4]) and without provocation, and such act is accomplished with the reasonable certainty that the act would be fulfilled.[5]  Also, one is held guilty of first degree homicide if in the course of a felony he is committing someone is killed as a proximate result of the commission of the felony.[6] 

Upon examination of the above, one sees certain relations of man and the law.  The law does not inquire deeply into condition of the murderer.[7]  In fact, the usually recognized legal test for insanity,[8] the M’Naghten Rule,[9] is largely a redefinition of homicide, and since few can qualify under it’s limited terms, many mentally ill are executed.9a.  Significant sections from M’Naghten’s case (with the Rule therein) are: 

That the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.[10] 

It should be obvious that the law still considers men in general to be free, moral agents, that man has within himself the capacity to do no evil if he so desires.  It is no wonder that the test “has long been under attack on the ground that it adopts and enforces as a matter of law outmoded and erroneous psychological theories, and that it tends to limit or distort expert psychiatric testimony.[11]  Nevertheless, when one breaks the law, society appears shocked, takes away his rights, treats him as if he were filth, and punishes him ever after to make him wish he had not transgressed. 

Man has not reformed his system of crime and punishment much beyond that of primitive society: 

An infraction of the laws of taboo was considered a crime and brought automatic punishment.  Their attitude made an investigation of the crime and the criminal superfluous.  Primitive society was not concerned with the motivation ehind a criminal act; its only interest was to punish the culprit so that the people would obtain satisfaction for the vengeful feelings.[12] 

Beyond the fact of scientific investigation of crime, and this essentially to determine whether the crime falls within the definitions of homice (i.e. motive, which is sought after so earnestly by prosecutors, is used to determine intent, a primary ingredient of the crime of homicide[13]), the quotation above is applicable to most of the U.S. today.  Evidence really supporting this view is that one need not commit murder to be executed.  He need only commit rape (even statutory rape), kidnapping, treason, and other crimes, and he forfeits his life in certain jurisdictions.  Anywhere from thirty-three to sixty-seven crimes, depending on how they are classified and counted still carry a death penalty.[14] 

However, modern man tends to rationalize his aggression or vengeance, which is his true motive for capital and other types of punishment, with the use of religious authority and other arguments, principally that of “deterrence.”  There used to be a time when one could argue validly on the deterrence effects, but now, due to the fact that civilized man has learned the use of keeping records, such argument is invalid.  One attribute of the modern method of punishment is that of confinement.  However, this writer and others[15] sanction such use only where the prisoner is dangerous, for confinement per se fails.  Something more than mere confinement is needed, for it is known that most who are released from prison will commit another crime, some being of a more serious nature.[16]  Yet few murderers commit another murder again, or even another crime, the rate being less than one percent.[17]  In fact, the Royal Commission on Capital Punishment came to the conclusion that “cases of murder committed by persons pardoned from the death penalty are rare if not almost unknown.”[18]  But as noted previously, most ex-convicts commit more crimes, some more serious than before.  One type of such more serious crime committed by ex-convicts is murder, at a rate which far exceeds the rate for former murderers.[19]  It is ironic that a murderer who is unlikely to commit another crime19a. is executed and those who are likely to do so are soon released to society, hardened, embittered, and more dangerous than before.

ANALYSIS OF ARGUMENTS ON THE DEATH PENALTY

1. DETERRENCE THEORY

The retentionist argues that life is regarded by man as a precious possession which he wishes to preserve more eagerly, perhaps, than anything else.  He would therefore act in such a manner to avoid death by any means, including that of capital execution.  The fear of death, brought vividly to man’s attention by the retention of capital punishment, is sufficiently forceful to enable rational man not to kill.  In applying this argument, the retentionist would say that murders would be less frequent proportionately in states that have the death penalty than in those that have abolished it.  He would also say that murders would increase when the death penalty is abolished and should decline when it is restored.  The deterrent effect should be greatest and should therefore affect murder rates most powerfully in these communities where the crime occurred and its consequences are strongly brought home to the population.  And finally, law enforcement officers would be safer from murderous attacks in those states that have the death penalty than in those without it. 

The retentionist might also analogize his argument to that of having the people of different states given a polio vaccine and the comparison of them with those in other state who are not given this vaccine.  He would say that the incidence of polio (or murders) would be less in states where the people have been vaccinated (or have retained capital punishment). 

To rebut the above, one might view the research of Thorstein Sellin.[20]  The data examined covered the period from 1920 to 1958, showing the murder rates in fifteen retentionist states and six abolitionist states.[21]  Comparisons of these states were made among states that were alike as possible in other respects – character of population social and economic conditions, and so forth, in order not to introduce factors known to influence murder rates in a serious manner but present in only one of these states.  The data examined revealed that 

1.       The level of the homicide death rates varies in different groups of states.  It is the lowest in the New England areas,and in the Northern states of the middle west and somewhat higher in Michigan, Indiana, and Ohio.
2.  Within each group of states having similar social and economic conditions and populations, it is impossible to distinguish the abolition state from the other…[22] 

Therefore, the “inevitable conclusion is that executions have no discernable effect on homicide death rates…”[23]  Other s have done similar studies.  Leonard C. Savitz studied the murder rate eight weeks before and after the execution of four “felony-murderers”[24] in Philadelphia.  His conclusion was that there was no significant decrease or increase in the murder rate following the imposition of the death penalty.[25]  In fact, Donal E. J. MacNamara states that

 …the existence of the death penalty may in itself contribute to the commission of the very crime it is designed to deter, or to the difficulty of securing convictions in capital cases.  The murderer who has killed once (or committed one of the more than thirty other capital crimes) and whose life is already forfeit if he is caught will find little deterrent weight in the prospect of execution for a third capital crime – particularly if his victim were to be a police officer attempting to take him into custody for the original capital offense.  The suicidal, guilt-haunted psychotic might well kill (or confess falsely to a killing) to provoke the state into imposing upon him the punishment which in his tortured mind he merits, but is unable to inflict upon himself.[26]

2. RELIGIOUS THEORY

Another frequent reason advanced for the retention of capital punishment is that the Almighty has decreed that he who kills another should himself forfeit his life.[27]  For support of such a position, they advance the following biblical quotations: 

Whoever sheds the blood of man, by man shall his blood be shed...[28] 

 Whoever strikes a man so that he dies shall be put to death…[29] 

If a woman approaches any beast and lies with it, you shall kill the woman and the beast…[30] 

Eye for eye, tooth for tooth…[31] 

... If anyone slays with the sword, with the sword must he be slain…[32] 

Abolitionists, however, also cite the Bible, saying that capital punishment is wrong: 

Cain said “…whoever finds me shall slay me.”  Then the Lord said to him, “not so:  If anyone slays Cain, vengeance shall be taken on him sevenfold…”[33]

Judge not, that you be not judged.[34] 

You have heard that it was said, ‘an eye for an eye, and a tooth for a tooth.’  But I say to you, do not resist one who is evil.  But if anyone strikes you on the right cheek, turn to him the other also…[35] 

“Let him who is without sin among you be the first to throw a stone at her.”[36] 

Repay no one evil for evil, but take thought for what is noble in the sight of all…[37] 

Beloved, never avenge yourselves, but leave it to the wrath of God…[38] 

A Christian theoretically accepts the words of Christ as reported in the New Testament, yet many are retentionists.  It would be logical that, since the new Testament represents the latest word from God, that for the Christian there should be no capital punishment.  However, the mysteriousness of death, the uncertainty of its effect on the living if reparation is not made, and the desire for revenge in man makes some cling to the Old Testament for support.  This is seen from the following quote, given by a proponent of the death penalty: 

You shall not thus pollute the land in which you live; for blood pollutes the land, and no expiation can be made for the land, for the blood that is shed in it, except by the blood of him who shed it.[39] 

The sacrificial element, above, was also present in primitive societies[40] (which this writer alleges is further support for his statement that modern man has not advanced much further in the treatment of the criminal than did his primitive forbearer).  But even more can be said about the retentionist who uses the Bible as source for his aggressive, superstitious tendencies.  By use of it in such manner, he is justifying the killing of “witches” in Scotland, done with the support of the Bible.[41]  He is also justifying, as did Sir Edward Coke, death for one who commits treason (or murder) by either hanging, cutting out the heart while alive, disemboweling, beheading, and then cutting off the limbs for all to see.[42]  It is possible but improbable that he will also attempt to justify death for one who strikes his father or mother,[43] or curses them.[44]  It should be obvious to the reader that this writer is merely saying, as do others,[45] that the Bible must be read with criticism and in light of the history of the time it was written.  According to Rev. Phillip A. Smith, a Unitarian minister, the “eye for eye, tooth for tooth”[46] phrase was intended to lessen the retributive wrath of the Jews which was

much worse before such command.[47]  It is no wonder, with such possible interpretations of the Bible, that the Catholic Church has set herself (as to Catholics) as being the only lawful interpreter of the Bible.[48]  For example, a proponent of capital punishment used Matthew 5:21-22 for support of his position.[49]  Some might say such verse lends no support to his position, especially since in Matthew 5:38-39 (quoted previously), are the famous verses explicitly compelling man to be charitable to one who injures him, accepted as strong support for the position of the abolitionists; 

JUSTICE IN THE CRIMINAL PROCESS

Unjust death sentences, in the sense of a death sentence resulting from an unfair trial, are not unusual… Between 1936 and 1961, the united States Supreme Court reversed convictions in sixteen capital cases, solely on the grounds of coerced confessions.[50]  For these excesses, the police are largely responsible.  But withholding evidence from the defense, subordination to perjury, and inflammatory practices by overzealous prosecutors… occur…[51] 

The practice of excusing from jury duty those who will not send a man to the chair may provide a panel predominated by the aggressive who, because they feel guilty about their own tendencies may be compelled to be vocal, due to a mechanism called reaction-formation,[52] and try to sway the jury to their way of thinking, even though the evidence may indicate the innocence of the suspect.  The evidence used to convict a man for murder is usually circumstantial,[53] which is recognized as having its limitations (even the use of eye witnesses has its failings[54]).  Usually one the Negro is executed in the South,[55] and stands a likelier chance than the Caucasian of being executed in the North.[56]  Even the Supreme Court Swain v. State of Alabama[57] sustained a conviction of a Negro for rape (with the sentence being death) even though there were no Negroes on the jury.  It is known that the Southerners and others have a bitter antipathy towards intermixture of the races, and this writer suspects that at least in one case[58] a Negro was executed when he had sexual relations with an adult Caucasian whose act was voluntary.  Generally, Negroes do not desire to intermarry with the Caucasians.[59]  Nevertheless, even sexual relations between Caucasian and negro are taboo (although the Supreme Court did recently reverse a conviction for such an offense[60]).

 Usually only the poor go to prison,[61] or are executed,[62] although crime is prevalent among all classes in society.[63]  Newspapers make money by appealing to the emotions, the aggressiveness of man, thereby trying the defendant on paper, precluding a fair trial.[64]  For the preceding reasons alone, the abolition of capital punishment would seem warranted, for it is known that innocent men have been executed.[65]  In fact, it is usually the emotion aroused by the execution of innocent men that hs caused certain states to abolish the death penalty.[66]  One can be set free if he is merely imprisoned, but once he is executed for a crime he did not commit because of the inherent limitations of our legal system, the error is irredeemable.

 Recent decisions worthy of note, however, have shown that we are slowly evolving to a state where the aggressive instinct as an outlet in the criminal process is less blatant.66a.  In some opinions the Supreme Court has stated that it is a denial of due process not to hold a separate proceeding to determine the issue of voluntariness of a confession aside from the determination of guilt itself,[67] and the record must show a clear-cut decision by the trial judge that the confession is voluntary.[68]  (A confession is determined to be involuntary if it were achieved through the use of coercion, i.e. through the use of force, prolonged questioning, or drugs[69]).  It is also a violation of due process to deny the defendant counsel beginning at his interrogation,69a. to allow witnesses for the prosecution to intermingle with the jury,[70] to allow the prosecution or judge to comment on the failure of the accused to take the witness stand,[71] to deny the defendant the right to confront the witnesses against him,71a. and to allow television of the trial where it is of widespread public interest.[72]  Such decisions are but a beginning, but they do not solve the problem of crime and the present injustice of criminal procedure, where designed to further the vengeance of and provide an aggressive outlet for man. 

AGGRESSION AND CRIME

There is one universal truth to the nature of man which is in all probability the key to the retention of capital punishment.  Man is by nature aggressive.  He has, what has been labeled by Freud, Menninger, and many others, an aggressive instinct.[73]  This instinct is undoubtedly a substantial factor in the retention on punishment for crime. 

The criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite.[74] 

And capital punishment, as well as an unjust war, is “the epitome of aggression in a civilized society.”[75] 

One may argue that he is not aggressive, for he does not act in such a manner towards others.  However, it is recognized that one released aggressive tendencies unconsciously many times throughout the day.[76]  This discharge takes many forms, such as taking part in our competitive society,[77] disciplining one’s children severely,[78] arguing with one’s spouse, or watching a football game[79] or boxing match: 

The time the crowd comes alive is when a man is hit hard over the heart or head, when blood squirts out of his nose or eyes, when he wobbles under the attack and his pursuer continues to smash at him with pole-ax impact.[80] 

There is no rightness or wrongness to having aggressive tendencies per se.  Perhaps the human race would not have endured to this day without such an instinct.  And of course, we should not feel guilty about the expression of such an instinct,[81] although most of us do.  By the tolerable expression of such instinct, one does himself justice, as well as society, for it is believed that the internalization of aggression accounts for mental illness,[82] which may cause crime (the release of pent up aggression is achieved an consequently mental illness is prevented, mitigated, or ended, through anti-social, largely unconscious, environmentally induced, act.[83]). 

The afflictions of mankind flow not from the frustration of his sexual drive… but from man’s ineradicable aggressiveness, his destructiveness, his persistent Malevolence.  Aggression manifests itself when not sufficiently cloaked or fused with those loving and constructive tendencies which also motivate us… The sexual life, the erotic feelings, the love of human beings for one another and for their children, homes, pets and hobbies and possessions are manifestations of a fundamental constructive force, opposed by driving impulses toward a radically different goal, destructiveness.[84]

 This destructive force is also surcharged by man’s basic insecurity and inferiority.  It is conceivable that competitive society is an outgrowth of the attempt to control this force, and is maintained in its highly competitive state for the same reason.[85]  Nevertheless, the overpowering effect of the aggfressive instinct, which lacks discrimination and judgement, exhibits itself when we are self-defensive, vindictive, righteous, and self-assertive.[86]  “These impulses rush forth, threatening to elude even the emergency controls.”[87]  The real need for such bursts of aggression is very rare.[88]  “The aim is apt to be poor, the weapons inappropriate, the justification questionable, the consequences disastrious,”[89] with the worst consequence being mental illness where the universal murderous fantasies achieve realization.[90] 

Mental illness is the inability of man to respond to his environment in a favorable manner,[91] and  

All people have mental illness of different degrees at different times,… that sometimes some are much worse, or better.[92] 

Over fifty percent of our big city population presently is most likely mildly to moderately mentally ill, displaying a neurosis (a mild to moderate inability to cope with one’s environment[93]).  Some (approximately 25%[94]) are markedly mentally ill, sometimes displaying hysteria (a physical malfunctioning of some organ of the body in response to stress[95]), and some approach or achieve a state of psychosis (a marked inability to cope with one’s environment, in which one attempts to reject it altogether[96]).  One must realize that all mental illness is but the expression of on “disease” which goes from bad to worse.[97]  To call it many different names is treating it fictitiously.[98]  It is but an attempt to alleviate aggression and prevent further aggression from being directed internally, and perhaps in the taking of one’s own life or the lives of others.[99]  However, some of us become misers, braggarts, bullies, sissies, liars, criminals, and so forth, in an attempt to cope with it.[100]  The propelling force, or precipitating causes, can be increments of responsibility, pain, reaction to loss, frustration (perhaps in not having a normal upbringing, where love was present), disappointment, or accident.[101]  Such forces cause some to step out of pace with others, making them unable to compete effectively in our fast-moving society, thereby causing a more sever mental illness.  That such rovces are more manifest in our poorest neighborhoods, producing the greatest percentage of mentally ill as compared with those of any higher socio-economic status,[102] should not be surprising, and it should be no less surprising that the areas of the greatest homicide rate and other manifestations of criminality are in such neighborhoods also.[103]

ALTERNATIVES TO CAPITAL PUNISHMENT

1. THE PREVENTION OF CRIME

1)     GENERALLY

One cannot escape coming to the conclusion that elimination of poverty is the means to the virtual elimination of murder and other crime, since, as mentioned in the prior section, most serious crime is committed by the poor.  This program must be accomplished by a concerted effort of our governments, since obviously the cost in dollars will be high.  However, in time this writer believes that the money that otherwise would be spent in costly trials, penal institutions, and in the support of the family of the convict, will not be greater than the cost of the program.  It is said that the cost of the trial and appeal alone of a murderer is more than enough to support him in a fancy hotel for the rest of his life.[104] 

It is almost exclusively the totality of the environment, not the heredity of the individual (even the feeble-minded can internalize the necessary rules in order to have safe society[105]) that produces the mentally ill who commit crime.[106]  Therefore, suitable shelter, health, food, educational, recreational, and psychiatric facilities should be provided to all without such.  Education is needed, for without the means to keep a job, the poor will remain poor, or we will remain supporting them and their descendants.  Psychiatric treatment (which can be provided by psychologists working under a psychiatrist in a clinic) is necessary, for otherwise most of the poor will most likely be unable to adjust adequately to pursue their education and employment, for the majority of the poor are at least moderately mentally ill.[107]  Patience by all will be needed before any substantial improvement in the total environment of the poor will be observable (remember, it took ages of abuse and neglect to create the slums in our cities). 

…Unless and until there is a concerted effort to preserve good families and reconstruct those that are not good, we are going to see crime permeate every social level.107a. 

Therefore, since the incidence of severe mental illness is inversely proportional to the degree of socioeconomic status of the individual (the lower his socioeconomic status the more probable will he be severely mentally ill[108]), all those who cannot afford to see a psychologist should not be charged for such care, with the government footing the bill, as it does here in Detroit at the Herman Keifer Clinic.  Even a large percentage of the middle class are moderately mentally ill and most cannot afford regular psychiatric care for one person, much less for two.[109]  Unfortunately, even now many in our largest cities in need of mental care and finding themselves unable to afford it, must wait at least one to two years before it is available.[110]  It is also not hard to realize that many of those with a need of treatment do not even realize such treatment is available.  (This society is very competitive and in need of the guiding and helping intellect.  Our most intelligent are most prone to be mentally ill, and if so, they in all probability will be washed out in this rat race to get ahead, and some will most likely turn criminal, and instead of the greater intellect, the lesser intellect will be guiding and helping us, more possibly to oblivion.[111]).

2. THE POTENTIAL DELINQUENT

Potentially delinquent children, who in all probability have been the objects of the hatred[112] of mentally disturbed adults,[113] deserves special attention, since obviously many delinquent children become delinquent adults.  Since “children who are likely to become juvenile delinquents can be spotted when they are only two to three years old… And it is hopeful that identification… can eventually be pushed back beyond even the two to three year level,”[114] parents should at the minimum be encouraged to take their children to mental health clinics prior to nursery school age, since it is much easier to cure mentally ill children than adults[115] (there would also be a good opportunity at the clinic to encourage the parent to undergo therapy himself, if such is needed).  The potential delinquent or the mentally disturbed child could be diagnosed by a confidential psychological examination or the Glueck Social Prediction Table[116], and if the test is positive, the child should be given psychotherapy[117] on an outpatient or inpatient basis (group psychotherapy should not be ignored).  But if the potential delinquent is not diagnosed until he reaches nursery or elementary school (where the psychological testing should be compulsory for all and the confidentiality retained), he should be provided with treatment then (it would be convenient, and depending upon the number undergoing therapy, more or less costly, to have the therapy at the school, but due to the superstitious social stigma that would possibly attach to the child[118] (if such has not by that time been eliminated by the knowledge that all have the potential for mental illness or have been at one time or another at least slightly mentally ill) such treatment should be conducted at a separate institution. 

Since some would force a needed surgical operation on a person to save his life, perhaps the mental treatment of the potential delinquent should also be forced upon the unwilling.  Is not crime as great a disease as any other that we seek with all our might to eradicate from within our midst?  And with the easier success of treatment with the juvenile than adult,[119] force should be used at least with him in the accomplishment of the program.  Did we not recently lose a beloved President who was allegedly assassinated by a youth who himself was detected much earlier as in need of psychotherapy?  Do not all of us lose as a result of crime, and will not the loss be much more if the crime rate spirals as predicted earlier?

3. NECESSITY OF THE PATIENT-PSYCHOTHERAPIST PRIVILEGE

Going to a psychotherapist voluntarily generally shows that one desires help with his problems.119a..  Yet many, especially the poor, are initially inclined not to trust the therapist and will act in a guarded manner.119b.  This may be compounded if the patient is forced to undergo treatment.  But even if one is forced to do so, it is very likely that in time, due to the perseverance, promise of non-disclosures, sincerity, and concern expressed by the psychotherapist towards the patient, the latter will tend to drop his initial reserve, distrust, and possible hatred, and the analysis, which is dependent upon disclosure of everything to the therapist,119c. will commence. 

The type of communication made to the therapist is much different from that made to members of other professions, including clergymen.  Expressions of hostility toward or sexual desire for parents or siblings, descriptions of dreams, fantasies, hallucinations, delusions, regressing actions, transference, acting out, etc., are but a few things which make even the most experienced therapist blush… Here ther is not only a breach of confidence, but a disgust with repetition and a humiliation for the patient whose relationship with friends and family might be forever altered because of these disclosures… The trier of fact cannot help but be irrationally influenced by such disclosures.119d. 

Such desires expressed above are universal,119e. and it is likely that due to the guilt feelings produced by the juryman’s identification with the defendant, the former may react in an emotional, hostile manner towards the latter and demand his guilt even though the evidence may indicate otherwise.

 Any breach of trust would in all likelihood end voluntary relationship, for it is known that one of the paramount attractions of the analysis is that a person can tell his troubles without fear of disclosure.119f.  (In fact, in many circles, particularly among the wealthier, educated class, psychotherapy is accepted wholeheartedly.  One is even accuses of being a status-seeker if he so much as hints at the fact that he is seeing a psychiatrist!119g.)  And if the relationship is forced upon the patient, the breach of trust or knowledge of other breaches will probably eliminate any chance of success.  If we consider the disclosure an impulse to commit a crime as a request to the therapist for help, the communications made to the therapist must be barred or privileged from disclosure, or obviously no such disclosure will be made.  The privilege is needed here more than in any other person-to-person relationship, for the treatment, cure, and the highly possible prevention of crime is dependent upon it.119h. 

The therapist should not even be permitted to disclose the identity of the patient, because of the taboo generally associated with psychotherapy.  However, upon the possible general enactment of the program of the writer, such disclosure of the patient’s identity only would or course be needed if the non-use of psychotherapy would itself be a crime which could cause commitment to an institution. 

Anyone involved directly in the rehabilitation and psychotherapeutic treatment of the individual (and this includes social workers) should be covered by the privilege, which is to be an absolute bar against the disclosure of such communications in court.  This should apply equally to third persons, whether or not they, themselves, were undergoing therapy, overheard the conversations.119i.  Any written records and intra- and extra-organizational disclosures involving third parties are also to be covered by the privilege. 

Even a convict undergoing therapy should be permitted the privilege, for even he is not generally beyond help.119j.  Under the program to be discussed shortly, this is paramount, for usually he is soon to be released. 

If it is any consolation to the reader, the crime that would be committed by the patient granted the privilege would in all likelihood not be murder or suicide, (in fact the thief  or other criminal stands a greater chance of losing his life committing crime than by being executed by the state119k, since most criminals nowadays undergo no psychotherapy at all and do not commit the latter offenses.119l.  Would not in any case the possible elimination of most crime be worth the “risks” involved? 

Unfortunately, as recently as 1962 only forty states privilege the psychiatrist-patient relationship, and none privilege communications to social workers or marriage counselors as such.119m.

2. TREATMENT OF THE CRIMINAL

From what has been brought forth earlier, that punishment does not deter, that the criminal law is now basically an outlet for the aggressive instinct, that presently criminal justice has substantial defects, that religious justification for capital punishment is unfounded, that confinement alone fails and makes the criminal worse,[120] one may believe that reformation of our penal institutions is necessary, with primary emphasis on correction.  However, one need not rely only upon the above as reasons to abolish capital punishment and reform our penal institutions.  The present system of imprisonment is also destructive of human character[121] in that one who goes to prison is deprived of wholesome companionship, associates primarily with other prisoners, is not rehabilitated,[122] but deteriorates physically and mentally, is literally forced to become a homosexual due to the depravation of normal sexual relations,[123] and when he is finally released, he is not guided[124] and cured but set free, stamped with the social stigma of being a convict.  The resultant effect of the preceding is that “good” people do not associate with him, few trust him, and therefore he finds it hard to find suitable employment,[125] retains his old associates and consequently commits more crime.  Obviously society looks upon imprisonment solely as punishment and has wistful dreams that the criminal will reform.  Any curative means are looked upon as the state pampering of criminals.  Many believe punishment is all the criminal deserves, and even this is “too good for him.”  To believe such is to reinforce this writer’s thesis, that present day criminal law is virtually nothing but the institutionalization of aggressive instinct.  And because this writer sees no merit  to the prison system other than its means of control of those who need control, the reformation of it must be undertaken.  Life sentencing or other lengthy imprisonment of the murderer (or any other criminal) is not the solution.

 In a few words, the solution to the problem of crime committed is to understand the criminal, control one’s aggression (by focusing it upon other alleviating means), open one’s heart and extend one’s hand to him, forgiving him, and help him forgive himself[126] and to learn to conform to the rules but for which organized society could not survive.  

Punishment is not the solution, and anything resembling punishment must be discarded.[127]  It can only be done by the eventual realization of all that prisoners are mentally ill in that they are not able to or have not been given the chance to adequately adjust to their environment.  Others act substantially within the dictates of the law because they wish to do so and are able to do so, not because they fear punishment.[128]  The desire to conform becomes part of man, dbut due to the prior and subsequent environment of the criminal, he is not allowed to do so.  For him, there is no free choice, because he is robbed of any free choice to do good even if he desired to do so.  Psychologically he is no different from, and should be treated the same as, all the other mentally ill, with the exception that confinement for the dangerous criminal is needed, but such should be prescribed with the proper treatment.[129]

 As to the non-dangerous criminal, that of whom one can say that there is an equal chance that he will not jeopardize his own or others lives (and for whom confinement with treatment is not needed), he should be freed with the enforceable instruction that he must appear regularly for psychiatric treatment (as described earlier in the section on “The Prevention of Crime”).  By building upon whatever is good within him or instilling good by proper psychotherapy,[130] by aiding him in the securing of employment, by providing him with the means to acquire a suitable environment, and by not discriminating against him just because  he once transgressed, it is probable that soon he will become a law-abiding citizen.  Of course, confinement plus treatment, necessary in some cases of the mentally ill, may sometimes be, even for the non dangerous.  However, there should be periodic review of the confined criminal, so the confinement will not be indefinite.  He should be subject to discharge in the same manner as the mentally ill who have not committed an antisocial act.  The treatment itself must consist of 

…A careful, individualized study, treatment and training of offenders, using the knowledge and techniques of medicine, psychiatry, psychology, education, vocational guidance, and training, religious instruction, recreation, and every other discipline which contributes to the understanding and management of people…[131]

And as to the cost of the treatment:
…While individualized treatment is expensive initially, the great initial cost can be offset by the reduction in recidivism and the consequent reduction in crime.131a.

CONCLUDING COMMENTS

Many in our society believe punishment deters, because that is the general prevailing theory.  Few are openly vindictive.  It is unfortunate that instead of focusing proper attention on the criminal, many still believe that crime will be lessened by increasing our present day antiquated methods of penology.  More policemen are desired by some, for they believe that will end crime.  This writer does not dispute the fact that it will end some crime,131b. or enable many more criminals to be caught in the act, but it will impose a virtual police state upon our society.  The murder and suicide rate may also increase significantly as a consequence.  Many jurisdictions are hiring more police officers because crime is being committed by members of all classes of society.[132]

But more policemen and stricter law enforcement is not the solution.  Since the population is increasing, and since severe mental illness is increasing (due to the unfortunate fact that a mentally ill person is more likely to get worse without the necessary care[133], and since many of the mentally ill cannot help but to act in an aggressive manner that is strongly contra to the mores of our society a point will be reached where society will possibly not be able to afford to confine without treatment.  It is also likely that having a police state will block off some criminally aggressive response, but it is also likely that the focus for the aggression may become (and is already in some cities) the police officer himself as representative of society.  In fact, in certain cities, there is no room for many juveniles and adults, and consequently the lesser offender is not imprisoned.[134]  (Perhaps as the “lesser” offense becomes increasingly greater in the magnitude of the offense, the fear of the population itself will cause enough concern to change our methods of reform.)

 It is also possible but unlikely (due to the “do-gooders” in our society) that some in our nation will regress temporarily and return openly to corporal punishment as a method of treatment (there is no implication here that such does not already exist).  However, it was found earlier in the history of the world that this did not suffice to end crime,[135] so even these may turn to an advanced method of reform and provide adequate preventive measures to deal with the problem. 

The method with the most promise in preventing criminal conduct is psychotherapy.  Many look upon such with suspicion, as belonging to the realm of the “headshrinkers.”  However, psychotherapy can be defined essentially as the process by which a relationship is established between patient and therapist, in which the patient recollects his past unpleasant or unfulfilled experiences (which unconsciously affect his present life) and as association is set up to such memories in which the concern (preferably love) expressed by the therapist mitigates, to a greater or lesser degree, the effect of experiences.[136]  The sooner the general population learns this, and adopts it’s use, overcoming the taboo associated with mental illness and mental hospitals, the better it will be for all. 

Unfortunately, there is a dire need for low cost psychotherapy, on an outpatient and inpatient basis,[137]

 Over 80% of the state hospitals of our country still fail to offer anything at all to the patients assigned to them and confined in them… Thousands of patients who undoubtedly could have been cured dragged out their weary lives in the dismal words of the state hospitals.  Many still do.[138]

 Perhaps the solution to the problem would be to have poly-disciplinary treatment staffs with a psychiatrist at the head.[139]  The needy should be provided free services, if necessary.  Only in this manner will the poor to middle class be able to help themselves.

 As to the epitome of aggression, capital punishment, perhaps the Supreme Court in the future will realize, that because of the failure of deterrence and the imperfections inherent in the criminal process, that usually only the poor or the Negro gets executed because they are not able to afford highly respected and highly priced counsel, capital punishment is a denial of due process.  The court may even invalidate it on the ground that it is cruel and unusual punishment (with “and” meaning “or”) as recommended by Gerald H. Gottlieb.[140]

 A few words must be said about “temporary insanity”.  Displaced aggression causes mental illness, and one can detect at least unconsciously one’s mounting inclination to such.  Therefore, a logical reaction would be to express such aggression overtly to maintain one’s sanity.  The insanity, depending upon its severity and the seriousness of the crime, can then be either mitigated or forestalled completely.[141]  This is probably why some criminals do not appear insane at the time of the trial.  For them, their insanity was indeed temporary.

 Hopefully Robinson v. California[142] will eventually do much to mitigate the tragic consequences incidental to the addiction to and possession of narcotics.  Much more however, will be achieved through the realization that narcotics addicts are not dangerous, but generally safer than alcoholics, whom we tolerate more readily.[143]  The drug fulfills a need, as does drinking and smoking, in that it tends to calm one’s nervousness and mitigates one’s depression, as recognized by narcotics widespread use in treating mental illness.[144]  Addiction to all three is only a possibility.  Of course, the taking of narcotics should be properly supervised by a physician, but to punish a peddler with death, as prescribed where the buyer is a minor, is atrocious.[145]  In fact, there is much merit to the eliminating of all punishment for the taking of drugs as well as for its peddling, especially considering the preceding facts; but, more important would be the consequent strengthening of the law by legalizing what is today one of its sorriest aspects, since the enforcement of the narcotics laws has probed to be almost impossible.[146] 

The end of the death penalty as punishment in itself will more than satisfy the objectives of this writer.  However, the greatest achievement would be the realization of mankind that he is aggressive, and cause him to seek more favorable outlets for the release of such aggression instead of venting it upon the unfortunate here or abroad.