Crime and Punishment

VTR: 12/22/1956
GUESTS: Florence Kelley, Dr. Gregory Zilboorg

ANNOUNCER: THE OPEN MIND, free to examine, to question, to disagree. Our subject today, Crime and Punishment. Your host on The Open Mind is Richard D. Heffner, author and historian.

MR. HEFFNER: Two weeks ago on The Open Mind we did a program on crime and punishment. The response to that program was very great and we’re coming back to the subject today. First, one of the guests from two weeks ago, Miss Florence Kelley, Chief of the Criminal Division of the Legal Aid Society. Our other guest is Dr. Gregory Zilboorg, New York psychoanalyst and author of “The Psychology of the Criminal Act and Punishment”. I think once again we ought to begin the program by having me put a question to one of our guests. And I think, Dr. Zilboorg, I’d like to put it to you first. The first question actually is the question I asked Professor Wechsler two weeks ago. And that is, what do you feel the purpose of punishment is?

DR. ZILBOORG: I don’t know. Because, In order to answer this question one ought to be certain that somebody invented punishment for a special purpose. Funithment existed long before its purpose was later on defined by lawyers.

MR. HEFFNER: Well, now, that puts me in the position of asking you what you think most people consider the purpose of punishment.

DR. ZILBOORG: Well, lawyers are better in answering that, and I am a psychiatrist. I think punishment serves little, if any, purpose. As a rule the lawyer wo uld come back at you and say that punishment helps a criminal to reform and helps others to avoid committing criminal acts because punishment has a deterrent effect. I don’t know whether anybody should ever deter anybody from doing anything. Not even running for electoral office.

MISS KELLEY: If I agree with part of that – and I do – I don’t think the kind of punishment we’re talking about in connection with a criminal prosecution has ever deterred anybody from anything. But I would like to ask Dr. Zilboorg whether he would think it were possible if we had a process, after you’ve apprehended and prosecuted a person that is commonly called a criminal, that could serve that person and to help him fit better into life that we need not call punishment?

DR. ZILBOORG: Well, this is a very intelligent and an extremely complicated question and doesn’t permit of any simple answer, but if you think of young criminals there is no doubt that punishing them only makes the thing worse and there are methods of what we call socializing their attitu des. There are certain colonies for younger men of which I know, for instance, the famous colony near Montreal, where they live in a community like a republic which is governed by the so-called criminals themselves. And statistically it’s very interesting that last Christmas a year ago, the boys up to the age twenty were all without exception permitted to go to their respective homes. They had to return. There is always a number that doesn’t return. Every single one returned to his post after the Christmas holiday. A sense of moral obligation to return to his open prison, if you wish. As a matter of dealing with criminals, let us say the incorrigible ones, we should have special places for them where we, who are looked upon with great suspicion by certain lawyers, we psychia¬trists, could study the criminals. We are asked questions and we cannot answer because the material which you have to study is usually taken away from us, either stuck away in some prisons and then inaccessible, or they’re executed. And, as I always said, dead men and absent men have no psychology.

MR. HEFFNER: You addressed this first question to Dr. Zilboorg, what would be your objective, Miss Kelley, in orienting ourselves toward such a system, not of punishment but of treatment?

MISS KELLEY: Well, I think anyone who works in the criminal law finally gets to the point of view that the one thing that you hope the whole process will accomplish is something in terms of the very people that you are prosecuting. In other words, you don’t want simply to see this person whom you’re going to call a criminal after he’s been convicted either treated or incarcerated in such a way that you think in terms of him as a human being at the end of the road or that you are limiting him, or taking away his potential as a human being. And I must stand up for the lawyers a little bit, as far as Dr. Zilboorg is con¬cerned. I don’t feel that all lawyers feel that everyone who is convicted should be sentenced to a penal institution.

DR. ZILBOORG: Some of my best friends are lawyers.

MISS KELLEY: But I think more and more the lawyers that represent persons charged with crime are thinking of what’s going to happen to the person after the criminal process is through. Always with an eye to the fact that he will return sometime to society and how will he be equipped to take his place at that time.

MR. HEFFNER: Both of you are putting your emphasis upon the individual who has committed the crime, but I note that in reading your little volume this week, “The Psychology of the Criminal Act and Punishment”, Dr. Zilboorg, you quote Oliver Wendell Holmes: “If I were having a philosophical talk with a man I was going to have hanged or electrocuted, I should say, ‘I don’t doubt that your act was inevitable for you, but to make it more avoidable by others we propose to sacrifice you for the common good. You may regard yourself as a soldier dying for your country, if you like, but the law must keep its promises;”‘ What about this thesis that you’re protecting society and have a lack of concern, admittedly, for the individual who has committed the crime but an overwhelming concern for preventing the repetition of this crime?

DR. ZILOORG: Well, you see, Oliver Wendell Holmes was a great judge and the son of a very great medical man who was also named Oliver Wendell Holmes. But what he said was casuistry of the worst order because society does not promise a man anything and the law does not promise to destroy or to execute a man for the sake of saving society. The issue is much simpler than that. From the standpoint of society, if we are brought up on a criminal code that feeds our revengeful spirit, just as if we were brought up on a criminal code that feeds all the time on war as a solution of social conflicts, if we were siding with this point of view we would demoralize our society. I think that punishment demoralizes the social concern for the individual. And therefore reduces the moral level of society. I believe that crime – the number of crimes – would be reduced if society, instead of demanding a debt to be paid, maybe twenty years in prison – would say, “Now, what happened to you? I can’t answer it; it’s a pity. You are not safe right now. Here is a place you will have to go and when people say that you’re all right, you’ll come out.” And not say, “Now, you’re going to be stuck there on bread and water. And then you will know not to steal or not to beat your wife.” That’s silly.

MR. HEFFNER: We’re not just saying it to the criminal. We’re saying it to others who may steal or beat their wives.

DR. ZILBOORG: And the others don’t care because at that time they don’t think they’re going to steal. And when the time comes to steal, they don’t care. In my book you will find a quotation from Warden Lawes’ book in which a man who was about to go to the electric chair, tells Warden Lawes that when one commits a crime one doesn’t think of the dangers that are Involved and he doesn’t care.

MISS KELLEY: And more than that, they don’t think they’ll be caught.

DR.. ZILBOORG: Exactly. It’s always a phantasy of the omnipotence of the mind: “I’ll do something. I’ll never get caught.”

MR. HEFFNER:- Do you think that the restrictions ¬the legal restrictions and the severe punishments for kidnapping , for instance, have been no deterrent at all to kidnapping?

DR. ZILBOORG: Well, you see, if you tell me what do I think, I say, yes, I think they were a deterrent. If you ask me to prove it, I can’t. I didn’t kidnap anybody nor was I deterred from kidnapping by the threat. I consider the severity of punishment deters nobody from anything, and the last kidnapping of this poor little boy who was killed – what was the name?

MISS KELLEY: Out on Long Island.

MR. HEFFNER: The Weinberger child.

DR. ZILBOORG: On Long Island. Or, the one that was in St. Louis – was killed, destroyed, and $600,000 taken, I think — these are kidnappings of psychopathic individuals, of very severely sick individuals. One was a drug addict, was let out of the prison too soon. And who’s going to be deterred by it? It shows kidnapping, as a matter of fact, the rewards of kidnapping are a little better than robbing a bank.

MR. HEFFNER: Do you think that’s true, Miss Kelley?

MISS KELLEY: Well, I don’t feel that sentences as such in a book on laws deter anybody because I think most of the persons that commit what we call crimes are unfamiliar even with what the sentences arc, As I said before, I don’t think a single one of them ever really thinks that he as an individual is going to be caught, that he’ll be found out. And that isn’t in his mind when he commits the thing we call a crime.

MR. HEFFNER: What about the matter of kidnapping? There, I think, just about everyone is familiar wi th the penalty.

MISS KELLEY: But the penalty isn’t in the mind of the person when he commits what we call the crime. I mean, if the person knows – say on Saturday he’s perfectly familiar with what the sentence is – he read that there was another kidnapping case and he knows what the sentence is because it was in all the news¬papers — if there’s certain pressures within him that are going to make him do an act, that cause him to do an act, I don’t think the knowledge of the sentence is going to deter him.

MR. HEFFNER: And we have no information on the other side.

MISS KELLEY: Well, certainly kidnapping has not stopped. You read about it constantly.

MR. HEFFNER: I grant that. But if you say, Dr. Zilboorg, these are instances of sick behavior,

DR. ZILBOORG: This I didn’t say.

MR. HEFFNER: But you said that in one instance certainly it was a matter of …

DR. ZILBOORG: There were two people I quoted. I forget the name of the man in St. Louis. The description of those people – of their motivation – by non-psychiatrists gave me the impression that they were sick people. Mentally sick people.

MR, HEFFNER: All right. Because we accept for this argument your diagnosis by long distance, let’s say then this is true and that sick people …

DR. ZILBOORG: By the power of the press.

MR. HEFFNER: Power of the press. And that sick people will continue to do these things. But why is the assump-tion made that we are not deterring those who will coldbloodedly and with reason and without sickness set out to perform a criminal act for the purpose of getting the ransom, I’d say in this particular …

MISS KELLEY: If you want to know why I said it, I’ve said it because I talk to these persons who are charged with crime all day, every day. That’s my job. And in talking to any of them I have never felt that knowing or not knowing what the possible sentence would be for what they adMit they’ve done has ever had an effect one way or the other on them. So I’m not talk¬ing from any set of statistics because I don’t have any. I’m talking from the feeling that I have from talking to these persons.

MR. HEFFNER: I find – if I may say this – one trouble with that argument and that is, you’re talking about the people who have committed criminal acts and not about the people who have not committed criminal acts, possibly …

MISS KELLEY: Some of those persons I represent have committed no criminal acts and they are finally acquitted.

MR. HEFFNER: I’m sorry. I have to take that back then. But, we’re talking for the moment about those who have committed criminal acts or who have been charged by the State with having committed them, not about the people who are not arrested because presumably they have not committed these acts, possibly because they are deterred by the punishments that are meted out.

MISS KELLEY: But what more final punishment can there be than execution, ald yet has that stopped murder?

MR. HEFFNER: No it hasn’t stopped murder. Maybe then we have to make the assumption that if we’re going to bring psychological values – if I may call them that – into this discussion, that here we may have the area where there is sick¬ness, where the murders continue. And we are stopping or deterring murders …

MISS KELLEY: I would never accept a statement that every criminal act is done by a sick person.

MR. HEFFNER: What about you, sir?

DR. ZILBOORG: I wouldn’t accept it either, and I have stated so repeatedly. I think that to equate criminality with mental sickness is almost equivalent to saying that anything that is bad is mentally abnormal and anything that is good is mentally normal. And this is exactly what happened in the 15th century. Anything that they considered bad was considered abso¬lutely criminal and many people were burned at the stake for the same reason. I think it’s an argument which is, to say the least, historically speaking, naive. There are a great many people ¬this will answer your previous question – in thirty years of practice as a psychiatrist I have seen people who committed crimes, people who were about to commit crimes, people who wanted to commit crimes, and I have yet to find one single person say¬ing, “I can’t do it because I will be put in prison” or “I can’t do it because I’ll get, the hot seat.” I did hear people say, “Well, gee, if I get the hot seat, I’ll get the hot seat but at least I’ve done it.”

MR. HEFFNER: I can’t get a more positive answer than the one I’ve gotten from both of you, then. What about making the punishment fit the crime? This from Gilbert and Sullivan doWn and back seems to be a moral necessity on our part.

DR: ZILBOORG: It’s not a Moral necessity It’s a necessity to appear just in an act of revenge

MR. HEFFNER: Well, what’s the matter with an act of revenge?

DR. ZILBOORG: It’s an act of revenge! But let’s not call it justice.

MR. HEFFNER: All right, then let’s say that –I’ve come across this quotation from Dr. Paul Menninger saying that the reasons given to justify punishment do not explain why it exists, they serve only to conceal the truth, that the scheme of punishment is a barbaric system of revenge by which society tries to get even with the criminal. What’s the matter with this? Let’s say it’s not just, that it is revenge. Do you feel there is something wrong about this, Dr. Zilboorg?

DR. ZILBOORG: I return to what I started to say in the beginning. It’s demoralizing for a society to build itself allegedly on moral principles without any moral foundation. In other words, we will do justice by unjustice. I cannot imagine anything more unjust than revenge because revenge is like the Frenchmen — the appetite comes with eating and the more you satisfy your revenge the more you want to be revengeful. You soon become a man eater – an eye for an eye will not be enough. You will ask five eyes for one eye.

MISS KELLEY: Well, I want to come back to some-thing that I feel I haven’t really gotten an answer to and I’m not sure there is an answer, and that is, I wonder if we’re somewhat troubled here by talking about punishment. I wonder if there is something else that these persons that have been Called criminals can have done to them or for them so that those persons that wish revenge can call it punishment, but those persons that are interested in the individual who’s been called a criminal will be satisfied that something’s being done for the individual.

MR. HEFFNER: Would your thesis behind this be that they are sick? Dr. Zilboorg says no.

MISS KELLEY: I don’t believe that every criminal act is done by a sick person.

MR. HEFFNER: All right.

DR. ZILBOORG: If I understand what Miss Kelley wants to say, she wants to strike a compromise – as a good lawyer would try to – by making the rehabi litation of the criminal satisfactory enough for society and – excuse me for using the vernacular – and shut up the screaming for justice in the form of revenge. This, I am afraid, cannot be done. You’ll have to reform our society to the extent which it started with. I’m pointing out that every individual – the worst among us – could be and should be rehabilitated and rehabilitation comes through rehabilitation, through kindness, through re-education, through study, through understanding, and not through whipping, killing or other forms of annihilation.

MISS KELLEY: I mean even more than kindness. I mean psychiatric treatment, but I’m not trying to get into the ar ea where people say we’re coddling these people who’ve done wrong. I think that whatever scientific knowledge we have should be addressed to these persons.

MR. HEFFNER: Why do you say psychiatric treatment , if you don’t think these people are sick?

DR. ZIIOORG: Education sometimes, on the basis of psychiatric knowledge, is not psychiatric treatment of sick people. You can educate healthy children on the basis of knowl-edge of modern psychiatry, thereby preventing them from developing harsh criminal tendencies. You can re-educate certain criminals on the basis of your psychiatric knowledge without necessarily treating them as mentally sick.

MR. HEFFNER: All right. Well, I want to come to another question that you mentioned before, Dr. Zilboorg, the rehabilitation of society. And I wonder if this is possible and whether the instinct for revenge or the aggressiveness that you talk about in your volume isn’t necessary, given our con¬temporary social standards.

DR. ZILBOORG: The words “given our contemporary social standards” lets you out because these “contemporary social standards” existed since the days of barbarism. The Italian principle of an eye for an eye, is the same thing. In other words, we must – if we are trying to build a new society – drop the immoral traditions of the past. I think w e are at the present moment crying in the wilderness but sometime in the future we will probably be able to consider the treatment, the handling, the education, the rehabilitation of criminals in a different light than merely that we must exact a pound of flesh.

MR. HEFFNER: Are you that optimistic?

MISS KELLEY: I’m optimistic because I think just the years that I’ve been around the criminal process, both on the District Attorney’s side and on the defense side – this is since 1938 now – I feel that there is some change both in the District Attorney’s office’s approach and the judges’ approach and in the general community. Not entirely. I still think there’s a very strong strain for real revenge, as if you’re satisfying something in society. But I don’t see why it can’t change. I think it has changed already. I think Dr. Zilboorg feels this is too drastic a thing to look forward to.

DR. ZILBOORG: No, the changes are too slow for me. But they are coming in. I agree with you.

MR. HEFFNER: Do you think these changes have to take place in the law, in the courts, the DA”s office, or where?

MISS KELLEY: In the people.

MR. HEFFNER: In the mind of the people. All right, so it’s a long range process and I’m –

DR. ZILBOORG: And In the television program s and in the broadcasts and everything.

MR. HEFFNER: Well, I don’t know what we’re going to accomplish, as you said before, except to point out these things. And thank you very much, Dr. Zilboorg, Miss Kelley.