Justice Oliver Wendall Holmes on Deterring Crime

face of a prisoner

At least through the beginning of the twentieth century, knowledgeable public intellectuals discussed deterring crime in a conceptually wide-ranging and popularly accessibly way. Consider the example of Oliver Wendall Holmes, Jr. By 1897, Holmes was the well-regarded author of the legal text, The Common Law, and a justice on the Supreme Judicial Court of Massachusetts, the highest court in Massachusetts. In a public address in 1897 at the dedication of a new Boston University Law School building, Holmes declared:

For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. ^

Like Beccaria and Bentham, Holmes questioned traditional ideas and practices and encouraged wide-ranging, unsentimental discussion of penal policy. Holmes asked:

What have we better than a blind guess to show that the criminal law in its present form does more good than harm? I do not stop to refer to the effect which it has had in degrading prisoners and in plunging them further into crime, or to the question whether fine and imprisonment do not fall more heavily on a criminal’s wife and children than on himself. I have in mind more far-reaching questions. Does punishment deter? Do we deal with criminals on proper principles? ^

Holmes here gender-stereotyped the criminal and invoked the popular belief that prisons, by permitting association and communication among prisoners of all classes, serve as schools of crime. Holmes then passed on to consider deterrence in relation to personal types, imitation, and fashion:

A modern school of Continental criminalists plumes itself on the formula, first suggested, it is said, by Gall, that we must consider the criminal rather than the crime. … If the typical criminal is a degenerate, bound to swindle or to murder by as deep seated an organic necessity as that which makes the rattlesnake bite, it is idle to talk of deterring him by the classical method of imprisonment. He must be got rid of; he cannot be improved, or frightened out of his structural reaction. If, on the other hand, crime, like normal human conduct, is mainly a matter of imitation, punishment fairly may be expected to help to keep it out of fashion.

Holmes’ simile “as that which makes the rattlesnake bit,” followed by the direct, forceful, “He must be got rid of” surely is effective popular communication. Holmes combined such language with display of his knowledge of the current scholarly literature:

The study of criminals has been thought by some well known men of science to sustain the former hypothesis. The statistics of the relative increase of crime in crowded places like large cities, where example has the greatest chance to work, and in less populated parts, where the contagion spreads more slowly, have been used with great force in favor of the latter view. But there is weighty authority for the belief that, however this may be, “not the nature of the crime, but the dangerousness of the criminal, constitutes the only reasonable legal criterion to guide the inevitable social reaction against the criminal.” (Holmes’ footnote: Havelock Ellis, “The Criminal,” 41, citing Garofalo. See also Ferri, “Sociologie Criminelle,” passim. Compare Tarde, “La Philosophie Pénale.”) ^

Consider Holmes’ authorities. Franz Josef Gall, a German physician, founded phrenology, which he initially called craniology. Phenology replaced analysis of rational choices with biological description. Jean Gabriel Tardé emphasized social imitation as a cause of crime. Enrico Ferri focused on social groups in analyzing crime. Both harshly criticized Beccaria and Bentham’s individualistic analysis of criminal rationality. With respect to considering the criminal rather than the crime, Holmes concluded with a quotation from Henry Havelock Ellis. Ellis was paraphrasing Raffaele Garofalo. Garofalo’s work emphasized the biological characteristics of criminals and provided intellectual foundations for indeterminate sentencing and individualized parole decisions. Garofalo strongly criticized the assumption of free will at the foundations of economic analysis of crime.

Holmes considered crime in terms of biological types, imitation, and fashion. That’s much different from penal thinking of the early masters of proto-economics. Holmes cited no statistics. More generally, his address served a broad audience with appreciation for display of learning and without strong claims to narrow, technical expertise. Imagining the conduct of the “bad man” — the person like everyone except you and me and all women — is an intellectual exercise accessible and appealing to everyone.

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