Abstract
Nowhere is this general tendency expressed by Brandeis more prominent than in the area of criminal law. In spite of the reasoned warnings of some writers, we are greeted by a continuous stream of books and articles from psychiatrists and psychoanalysts (and their judicial followers) with one common theme: Criminal punishment is an unscientific survival of barbarism and must be replaced by a system of individual and social therapy.1 To believe otherwise is to be unscientific and (if the distinction is recognized) immoral.
Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasions of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.
Louis D. Brandeis
Olmstead v. United States (1928)
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Notes
Standard sources for such a view are F. Alexander and H. Staub The Criminal, the Judge and the Public: A Psychological Analysis (Glencoe: Free Press, 1956)
D. Abrahamsen, The Psychology of Crime (New York: Columbia University Press, 1960). This theme is also to be found throughout most of the books produced by winners of the Isaac Ray Award. The most detailed and persuasive case against this position has been made by Thomas Szasz in Law, Liberty & Psychiatry (New York: Macmillan, 1963).See also F. Wertham’s ‘Psychoauthoritarianism and the Law’, University of Chicago Law Review 22 (Winter), pp. 336–338.
New York: The Viking Press, 1968.
It is significant that the judge is listed last, and that it is not specified whether or not he is to have a decisive veto power with respect to a violation of the prisoner’s rights. The judge must simply be “interested” in these rights. The quoted portion of the extract is from S. Glueck’s Crime and Justice (Boston: Little, Brown, 1936).
For an elaboration of the institutional character of science, and of psychiatry in particular, see the material by Thomas Szasz in Psychiatry and Responsibility, ed. H. Schoeck and J. W. Wiggins (Princeton: Van Nostrand, 1962).
It is often not noticed that provisions for preventive detention (especially if they rest on statistical evidence) tend to involve collective rather than individual criteria for guilt. It is judged that Jones is to be detained because he is a member of some class (e.g., vagrants) which manifests a high crime rate. This point is totally missed in the otherwise excellent article on preventive detention by Alan Dershowitz in the New York Review (13 March 1969).
An important recent book, Herbert Packer’s The Limits of the Criminal Sanction (Stanford: Stanford University Press, 1968), illuminates the tension inherent in our system of criminal punishment by contrasting the “crime control model” with the “due process model”.
Menninger dismisses entirely the arguments of those who have advocated a retributive theory of punishment. For example, he fails to consider the possible alteration in our concept of a human being (and how we treat human beings) if we cease to regard people as agents of dignity and responsibility who are capable of being blameworthy for what they do. To see that one can offer a retributive theory which is something more than disguised vengeance, consult Herbert Morris, ‘Persons and Punishment’, The Monist 52, (October 1968) 475–501.
For more on this distinction, see Packer, supra note 8.
Some psychiatrists try to meet this worry by advocating a bifurcated trial (something along the lines of the California practice). There is to be a guilt trial and a sanity trial. At the former, considerations of mens rea will be relevant and allowed. All questions of sanity, however, will be reserved for the second trial; and thus it is only at this second trial that psychiatric testimony will be allowed. This system, however, will fail for the following reason: If a man is insane, he might be incapable of having the mens rea required for the commission of the offense. It would thus deny him due process to exclude psychiatric testimony from the first trial. See People v. Wells (1949) Cal. 2d33: 330; p. 2d. 202: 53.
In re Gault (1967) U.S. 387:1. See also the horror stories of arbitrary mental commitment cited by Szasz supra note 1. Szasz has raised profound questions and deserves a serious answer. Menninger simply proposes to eliminate such abuses by training police and mental health workers with the proper therapeutic attitude (pp. 260; 271). But this misses the point entirely; benevolence is not justice, and therapeutic attitudes are not necessarily due process attitudes. Menninger might also recall Lord Acton’s reminder about the corruptive nature of power. Or does he perhaps think that psychiatrists are immune from such corruption? Nice, benevolent people are perhaps preferable to mean, stubborn ones; but it does not follow from this that the former should be allowed to coerce and confine the latter.
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© 1979 D. Reidel Publishing Company, Dordrecht, Holland
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Murphy, J.G. (1979). Criminal Punishment and Psychiatric Fallacies. In: Retribution, Justice, and Therapy. Philosophical Studies Series in Philosophy, vol 16. Springer, Dordrecht. https://doi.org/10.1007/978-94-009-9461-4_10
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