Second Mencken Chrestomathy (14 page)

It is exactly as if every officer in the Army had to be a graduate from the ranks—as if every admiral in the Navy had to be a former coal-passer or mess attendant—as if every surgeon had to have years of service as a hospital orderly or dissecting-room
Diener
behind him. Now and then, to be sure, the scheme lets a really good man survive. I have known detectives, come up from pounding beats, who were extremely competent, just as I once knew a surgeon who actually began as an embalmer. But it must be plain that such things are miracles, and that the probabilities run cruelly against them. The average detective is simply an ex-paperhanger or bartender thrown into a job demanding five times the information and intelligence of a Harvard professor. He is pitted against men who, at their best, are shrewder than Morgan partners and more daring than deep-sea divers. Is it any wonder that they so often beat him? And is it any wonder that, conscious of his incompetence and revolting against it, he resorts to such brutalities as the third degree to conceal it?

Therapeutics is surely not my
Fach
, but in this case I venture upon a modest suggestion. It is that the corps of cops be divided into two halves, as the Army is divided. Let the rank and file be recruited from out-of-work grocery clerks, plumbers, bricklayers and farm-hands, as now, but let entrance into the higher posts be restricted to men of superior education and intelligence. I see no reason why an extraordinarily bright young man, if he survives pavement pounding, should not pass from the one category to the other, just as enlisted men in the Army are sometimes given commissions,
but I can imagine no reason why every recruit should be forced to start at the bottom, with years of dull and stupid work amid depressing associations. If the good ones, after due examination, could begin as detectives, the whole force would be vastly improved, and it would be measurably less easy than it is now for criminals to escape detection and punishment. There is no real secret about detective work; it simply requires a good head. But under the present system it is open to men with good legs.

From P
REJUDICES
: F
IFTH
S
ERIES
, 1926, pp. 284–85.
First printed in the
American Mercury
, July, 1925, p. 353

Has any historian ever noticed the salubrious effect, on the English character, of the frenzy for hanging that went on in England during the Eighteenth Century? When I say salubrious, of course, I mean in the purely social sense. At the end of the Seventeenth Century the Englishman was still one of the most turbulent and lawless of civilized men; at the beginning of the Nineteenth he was the most law-abiding. What worked the change in him? I believe that it was worked by the rope of Jack Ketch. During the Eighteenth Century the lawless strain was simply choked out of the race. Perhaps a third of those in whose veins it ran were actually hanged; the rest were chased out of the British Isles, never to return. Some fled to Ireland, and revivified the decaying Irish race; in practically all the Irish rebels of the past century there have been plain traces of English blood. Others went to the Dominions. Yet others came to the United States, and after helping to conquer the Western wilderness, begat the yeggmen, Prohibition agents, footpads, highjackers and other assassins of today.

The murder rate is very low in England, perhaps the lowest in the world. It is low because nearly all the potential ancestors of murderers were hanged or exiled in the Eighteenth Century. Why is it so high in the United States? Because the potential ancestors
of murderers, in the late Eighteenth and early Nineteenth Centuries, were
not
hanged. And why did they escape? For two plain reasons. First, the existing government was too weak to track them down and execute them, especially in the West. Second, the qualities of daring and enterprise that went with their murderousness were so valuable that it was socially profitable to overlook their homicides. In other words, the job of occupying and organizing the vast domain of the new Republic was one that demanded the aid of men who, among other things, occasionally butchered their fellow men. The butchering had to be winked at in order to get their help. Thus the murder rate, on the frontier, rose to unprecedented heights, while the execution rate remained very low. Probably 100,000 men altogether were murdered in the territory west of the Ohio between 1776 and 1865; probably not 100 murderers were formally executed. When they were punished at all, it was by other murderers—and this left the strain unimpaired.

From the Baltimore
Evening Sun
, Jan. 28, 1924

What brings penology so constantly to grief is the modern craze for reducing all punishment to a few simple, standardized penalties, thought erroneously to be humane. This craze was unknown before the Eighteenth Century. It originated in England toward the end of that century as a phase of a general humanitarian movement which, among other fruits, has succeeded so brilliantly in debasing the so-called Anglo-Saxon stock that the descendants of English peasants who, in the year 1700, were hearty, red-faced, tall and healthy animals are today a race of almost pathological men, small in stature, frail in body, without teeth, and wholly devoid of intelligence. In the field of penology the movement obliterated all the protean and often highly ingenious and effective penalties known to classical English jurisprudence and substituted fines and imprisonment, with hanging reserved for murder only. That is to say, all criminals regardless of the nature of their crimes
and of the end sought to be achieved by punishing them at all, were thrown into prisons and there punished exactly alike. Thus, the penalty for getting drunk and falling off an omnibus became precisely the same, save for its duration, as the penalty for counterfeiting, highway robbery and bigamy. A boy taken in the act of stealing an apple from a grocer’s barrel, voluptuously displayed to catch his eye, was sent to the same prison which sheltered men convicted of robbing widows and orphans, blowing safes, buying and selling prostitutes, and burning down churches.

Obviously, this scheme was quite insane. It not only failed to dissuade and reform the major criminals; it made major criminals of all the minor ones. A youth got into prison for breaking a window, and came out an accomplished and ambitious burglar. In the course of time even the imbeciles in charge of such high matters began to realize that there was something wrong, and the history of penology since that time has been a history of efforts to ameliorate and improve the prison system. Reformatories have been opened for young offenders, a parole system has been developed to sort out chance criminals from the professionals, and a hundred and one other devices have been proposed and tried to correct the plain defects of the underlying scheme. But in the United States, at least, all such devices, in the larger sense, have failed. Crime continues to increase among us, especially in its more violent and hence more dangerous anti-social forms. As our penal system has grown in humaneness toward the lesser varieties of criminals, and in the effectiveness, or, at all events, in the elaborateness of its artifices for reclaiming them and making docile drudges of them, it has steadily lost capacity to discourage or diminish the really serious crime. In order to avoid punishing the petty criminal too much, and so driving him in despair into genuine crime, we have had to reduce the punishment of the major criminal so greatly that, in many cases, it is now scarcely any punishment at all. A Jack Hart, robbing and murdering peaceable citizens in broad day-light while the
Polizei
snore in the adjacent garages, is sent to exactly the same prison which houses men whose only crime is that they have sold, perhaps, a drink of bay rum to a Prohibition officer disguised as a Christian down with cramps, and once Hart gets there he is treated exactly as they are.

He must, true enough, stay longer, at least in theory, but that is a detail. The main thing is that Jack’s punishment is grossly inadequate to his crime, as that of many, and maybe most of his fellow-prisoners, is grossly excessive. It is not dreadful enough to make him reform, and it is not dreadful enough to dissuade other men of his peculiar nature. Worse still, it bears no sort of intelligible causal relation to his offense; it does not inflict upon him anything even remotely resembling what he inflicted on his victim. To elect a man to the Sweezey Club for robbery and murder is fundamentally as idiotic as to elect him to the Maryland Club for piracy on the high seas, and a great deal more humane. His inclination toward robbery and murder is not obliterated thereby, and his capacity for it is only temporarily suspended. Soon or late he will get out, either by a jail delivery or by due process of law, and resume his practice. Reduced to its elementals the transaction is simply this: that society bribes him, by paying the heavy cost of his upkeep, for transiently suspending his operations, and then turns him loose to renew them.

The English embraced penology before we did, and are getting rid of it sooner. They never elect a man to a club for robbery and murder, and pay his dues and his checks; they hang him. After the war they faced the same crime wave which now disturbs the United States, with crimes of violence constantly increasing. They formed no Sweezey Clubs and summoned no expert penologists. Instead they revived the whipping-post, abandoned in the Eighteenth Century, and now every hold-up man convicted is given a series of barbarous lashings, continued until he is all in. With what result? With the result that the Recorder of London, in his charge to his Grand Jury in May, 1920, pointed with satisfaction to the fact that there was but one charge of robbery with violence on his docket. The walls of our prisons are bulging; we are constantly paying out millions for new ones. In England—but let me quote the Committee on Law Enforcement of the American Bar Association: “The great English prison at Reading has been closed. Other prisons have been turned into Borstal Institutions [
i.e.
, reformatories for young offenders]. Prisons which formerly were crowded are now half-empty.”

But would the cat-o’-nine-tails suffice to dispose of such fellows
as Dr. Hart? Would it punish him enough? Perhaps not. But the cat-o’-nine-tails is not the only instrument of correction that might be rescued profitably from the great reservoir of the old English law. I am no uplifter and hence make no specific recommendation. But I confess that I often wonder that the ancient punishment of outlawry is not revived; it is still in force in England, though it has not been inflicted since 1859. Certainly it is simple enough in its workings. A man who deliberately chooses the career of an outlaw is made one officially. From that moment he has no rights whatever. Any citizen may beat him, wound him and even kill him without challenge. It is a misdemeanor knowingly to conceal him, or even to feed him. He is thrown into the exact position of the victim he assaults and robs, and is paid off in his own coin. But is outlawry prohibited by Section Nine of the Constitution? I doubt it. That section prohibits bills of attainder, but attainder is certainly not outlawry, though it may be a part of it. In any case, why bother about the Constitution? Certainly the Federal courts have all forgotten it. The jails are now full of men who were rail-roaded there, without jury trials, in plain violation of the First Amendment. If it is moral to adjourn the Constitution in order to give the Anti-Saloon League a show, why shouldn’t it be equally moral to adjourn it in order to protect decent citizens from robbery and assassination?

From the Baltimore
Evening Sun
, Sept. 24, 1928

It is hard for anyone who has not had personal experience of prisons to conjure up any image of their appalling reality. They are, even at their best, places of torture: at their worst they are so bad that only men of the lowest organization can endure them. It is not the loss of liberty that drives the men in them to frenzy: it is the intolerable rigidity, monotony and imbecility of their routine. Their arrangements, like those of the public schools, are made to meet the needs and character of inmates at the very bottom
of the scale. No wonder prisoners of a higher caliber—and some of the most bold and incorrigible criminals are of a higher caliber—find life in them quite insupportable, and prefer death to a continuance of it.

Theoretically, these prisoners are wards of the law, which is supposed to be impersonal. But that supposition is as absurd in this case as it is in every other. The plain fact is that the men are the slaves of their keepers. It is these keepers who determine whether their imprisonment shall be tolerable or an endless agony, whether they shall be left with some common hope and spirit when they emerge or go out as complete wrecks. It is these keepers, under the maudlin parole system, who chiefly determine how long they shall be incarcerated. If you want to find out what sort of men hold such grave powers over their fellow human beings, go to any prison and palaver with the first keeper you meet. And if you have no access to prisons, then try to figure out what sort of men are likely to seek and cherish such jobs. Here I say nothing against the keepers as individuals. They do the best they can: many of them, I believe by sound evidence, are humane and even sentimental men. But it would be absurd to look for superior intelligence in them. They are, as every test made of them has shown, ignorant and simple-minded men, and not infrequently of a mentality below that of the average of their charges. They do the best they can—but what they are asked to do in the name of justice and righteousness would daunt a herd of Platos.

It is an ironical fact that all this penning of men in cages, all this frightful effort to hammer them into docility, all this cruel outraging of their primary instincts, is done in the name of humanity. The modern prison, in fact, is humanitarianism’s masterpiece. It is a monument to its tears. There was a time when imprisonment was a rare punishment. Men were thrown into jails to await trial, but when they were tried at last they were commonly punished in other ways. Some were put to death. Others were deported. Others were flogged. Others lost certain civil rights. Yet others were mutilated.