79 - The Crime of Punishment

The Crime of Punishment
By Karl Menninger
305 pp. New York, Viking Press, 1968. $8.95.

The position of Dr. Karl Menninger's new book starts with the assertion that the criminal is not so much the exception from as the dark side of the average person and citizen. The one shares with the other the same inner complexities, the same instinctual heritage, and both share in the universal impulse (of man) to aggression and destruction. This "innate violence" of man is the hallmark of all crime, and what distinguishes the law-abiding citizen from the offender is that the one has learned how to curb and sublimate his violence while the other expresses it more directly.

Menninger goes on to argue that, unfortunately, mankind's shared predicament has not made the community more understanding and rational in its view of the criminal but, on the contrary, more vicious and irrational. This is the well-known psychological reaction which occurs whenever (deep in his guts) one is too similar to, has too much in common with another. Because of the public's fascination and subconscious enjoyment of violence, it clings to the old device of scape goating and to a policy of plain vengeance against its own inner shadow recognized in the criminal.

Such reactions of the citizenry explain the title of this book: The Crime of Punishment. Menninger understands by "punishment" the deliberate, often vindictive, infliction of pain in lieu of proper "penalty." In other words: "penalty," yes; the plus which "punishment" adds to it, no. Menninger would surely be grievously misunderstood if the reader should hold him "soft" or naive with the criminal. What he pleads for is a more rational and psychologically informed understanding of the agents of crime and, as a result, a more enlightened dealing with them. Such a prudent approach will usually lead to an attempt to cure and not only to cage the offender, but it may occasionally imply an even greater and surer penalty for the dangerous criminal than presently prescribed.

As an expression and partial replica of the still prevailing attitude of the general public, Menninger describes and indicts the present legaljudicial-penal system. He calls its handling of the offender antiquated, a social monstrosity, a farce of true justice, and basically self-defeating. One chapter of his book describes what may happen to the offender on his way from arrest to the waiting and preparation for his day in court

80 - The Crime of Punishment

to the trial itself which is governed by a sometimes disastrous "adversary system" or "fight theory," and from there to the convict's progress through prison to re-entry into society. All this has to be read and pondered in order to understand Menninger's sorrow and indignation.

Those of us who are acquainted with both the present legal and penal situation will agree with nearly everything that Dr. Menninger has said in the name of the "scientific position,"-said, I may add, in the voice of the biblical prophet.

Since its publication a number of weeks ago, much has already been said about the book by a great number of reviewers, I hesitate to restate what has been said by other persons in other places. Instead, I would like to discuss one special point of the book,-an issue not only close to the main concern of it, but also of special interest to me as a lawyer turned clergyman.

As every reader of his book will soon find out, Menninger sees the law and psychiatry as partners in crime against the offender, and the relatively worse of the two is for him obviously the law. Now I wonder whether the whole matter which Menninger calls the "medical-legal controversy," and to which he speaks as a psychiatrist, doesn't come from a mutual misunderstanding of the two principles, and also from some misguided attempts to compromise their differences.

The law is concerned with the organization of a body-politic, with the collective life of man, and penal codes enforce that very minimum of rules which such an organized group has to observe in order to survive as a civilized entity. All this results in a social view of behavior and is in its essence moral axiology. Psychiatry, on the other hand, is interested in the dynamics which propel and motivate an individual and as a branch of the medical sciences, it speaks of "sick or ill" persons. Right and wrong, guilt or innocence, so basic to law, are not functional concepts in psychiatry.

Many attempts have been made to synthesize the law's social-generalizing views of behavior with medical natural-individualizing views. It began long ago in pre-scientific times when considerations of subjective "intention" and personal "responsibility" were introduced to the halls of criminal justice. When modern depth-psychology brought about a more and more sophisticated knowledge of human motivation, matters became in due course also more complicated in the medical-legal relationships. The ensuing Homeric battles of lawyers and psychiatrists in court resulted in an exercise of mutual frustration and irritation. The two disciplines just did not speak the same language, and the inevitable results should not be measured in terms by which one of two parties is more guilty than the other.

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How can the "medical-legal controversy" be solved-a controversy due to different principles as well as historical developments? Dr. Menninger suggests a way to which I will add a word from the other side of the fence.

The "way out" is a kind of division of labor between the two disciplines-a division at which they arrive in recognition and in mutual respect of two different positions as well in principle as in the history of ideas. Psychiatry will follow Dr. Menninger's advice and consent to its "exclusion from the courtroom" where generalizing social-moral questions are decisive rather than individualizing medical viewpoints. The law, on its part, will have the courage to admit that its primary concern is with the "defense and protection of society" against the criminal. It is concerned first of all to reach a verdict, the welfare of the individual lawbreaker being only of secondary importance. It can give only secondary (or even less) thought to the problem whether a verdict will result in the "deterrence" or "rehabilitation" of the culprit or other criminals. All this doesn't count when it comes to the question of right and wrong, guilt and innocence of the accused. This is, at least, the sober view of a growing number of lawyers, a view elaborated in the so-called "theory of social defense" for which recently a strong case has been made in Italy.

The psychiatrist (as our book suggests) will enter the scene only after the criminal court has arrived at a verdict and when decisions now have to be made regarding the individual offender's future in view of his personal "amenability to social control." Here the psychiatrist will help refine and personalize what the judge and jury have earlier given basic social form.

Dr. Menninger's book is too full of challenging ideas for a single short review to do justice to it. Suffice to say that all who professionally work with and among criminals have good reason to be thankful that the great man of American psychiatry has "thought it not a robbery" to his high rank to speak to our many, and often confused, disciplines. The passionate voice of this book should not only give a new impetus toward a more enlightened and therefore more realistic view of the criminal; it should also uphold and inspire anew all those of us who occasionally may be discouraged by the magnitude of human destructiveness which we find in the prisons to which we are ministering.

E. Frederick Proelss
Senior Chaplain
New York City Department of Correction