University Essays: Lesson 10, Reading 3
by Clarence Darrow
The Machinery of Justice
The state furnishes no machinery for arriving at justice. Even if it were possible under any circumstances to judge, and even though men were really criminals, the state has no way of arriving at the facts. If the state pretends to administer justice, this should be its highest concern. It should not be interested in convicting men or punishing crime, but administering justice between men. It is obvious to the most casual observer that the state furnishes no machinery to accomplish this result. The penal law simply takes a man into its hopper and grinds out a criminal at the end. A force of able-bodied, well-fed, well-paid men are kept busy in their search for crime. These men find pecuniary reward in the crime of their fellows. An indictment is easily returned against a friendless man — a suspicion is enough in any case where the victim has no friends. If he is poor, he I at once lodged in jail. Later, he is placed on trial in the courts. When he steps into the dock, both judge and jurors look on him as a guilty man — believe he has committed a crime. He is carefully guarded by officers like a guilty, hunted thing. Arrayed against him is an able prosecutor, well-paid, and having personal and political ambition dependent on the number of men he grinds into criminals. The prosecutor has ample means for the conduct of the case. The prisoner, helpless enough at best, is rendered absolutely powerless to prepare his case by being lodged in jail. Without money, he has no advocate with either the learning, influence or ability to help his cause. If he I silent, he is convicted. If he speaks, no one believes his words. Innocent or guilty, it is a miracle if he escapes, and in this miracle, the fact of his innocence or guilt plays but the smallest part. Given a few suspicious circumstances, a helpless prisoner, an indictment, and another victim is the sure result. And in the hands of a shrewd lawyer, or under the belief of guilt, any circumstances are suspicious circumstances. Almost all acts are subject to various interpretations, and the guilt or innocence of a circumstance depends
not upon the act but upon the mind that passes judgment on the act.
We look back with horrors at the criminal courts of England, or Spain, of Italy, even upon our own Puritan judges who sentenced witches to death. These judges were doubtless as intelligent as our own. Their brutal, cruel judgments did not grow from a wicked perverted heart but from the fact that they were passing judgment on their fellow man. These unjust judgments are the fruit of the cruel system of force and barbarism which clothes one man with the authority and power to condemn his fellow man All prosecutions are malicious, and all judgments are meted out in anger and hatred. Our own judges are constantly showing this. In nearly every instance, they condemn a prisoner to a term of servitude, and when passion has fled and the sane and holy feelings of mercy, of charity, of humanity once more regain their sway, they call on the pardoning power to rescind their cruel acts. In all these cases of pardons, reflection shows the judges that the punishment meted out was at least too severe. The difference is in the frame of mind of the judge when engaged in the business of administering judgment and, when in the mood, for listening to those feelings of human charity which are the diviner part of man.
Punishment, to in any way be justified, should diminish the sum of human misery, the result of the bitterness and hatred of men. But here, as everywhere else, punishment falls short. Wherever the judgment of courts enters, it is to corrupt and to destroy. The misery and suffering entailed on man by scaffolds, racks, blocks, dungeons and jails has never yet begun to be told. Blood and misery and degradation have marked the administration of punishment.
Since man first penned his fellow men,
Like brutes, within an iron pen.
(Ed. note: Byron, The Prisoner of Chillon)
Let any reasoning being consider the tens of thousands who have been burned, and hanged, and boiled, and otherwise put to death for witchcraft; the millions for heresy; the
thousands of noble victims who have suffered for treason; the victims of fire, of torture, of scaffold, of rack and of dungeon, for all the conceivable crimes since time began. Let him consider the oceans of blood and rivers of tears shed by the force and brutality of the rulers of the world; the cruelty, torture and suffering heaped upon the helpless, the weak, the unfortunate; and then ask himself if he believes that punishment is good. Even could violence ever prevent crime, the brutality, suffering, blood and crime of the rulers has towered mountain high above that of the weak and obscure victims whose wrongs they have pretended to avenge. And this cruelty does not abate. It is simple madness that doubts the justice or past condemnations and believes in the righteous judgments of today. No condemnation is just, and no judgment is righteous. All violence and force are cruel, unjust and barbarous, and cannot be sustained by the judgment of men.
But the evil of judgment and punishment does not end with the unfortunate victim. It brutalizes and makes inhuman all who are touched with its power. Under the
influence of punishments, jailers, policemen, sheriffs, detectives and all who deal with prisons are brutalized and hardened. The iniquities produced upon helpless prisoners
leave their effects upon the captor as well as the captives. To witness the constant suffering and indignities of prison life is to destroy the finer sensibilities of the soul. Me who are otherwise kind in the various relations of life do not hesitate at cruelty to these despised prisoners whom the law has placed outside its ban. To underfeed and overwork, to insult, degrade and beat are common incidents of prison life, and this, too, not because jailers are naturally cruel and bad, but because prisons are prisons, and
convicts are outcasts. Instead of approaching these unfortunates as brothers in fellowship and love, their only concern is to make them
feel that the heavy hand of the state has been laid upon them in malice and violence.
However thoroughly the futility, cruelty and injustice of punishment may be shown, men will still persist that it must exist. The thought that society could live without
prisons and policemen seems to be beyond the conception of the common man. If punishment has no effect to diminish or prevent crime, then no danger would be incurred to dismiss our jailers and jurors and close our prison doors. The results of this policy can, of course, not be proven absolutely in advance, but so sure as the existence of man is consistent with justice, charity and love, so sure is this policy right and would produce good results. It is not necessary to prove the theory of nonresistance to show that this policy is practical today. Society, as now organized, rests upon violence and wrong. The nonresistant pleads for a better order, one in which the law of love and mercy will be the foundation of every relationship of man with man. The present unjust system is supported by violence and force. The unjust possessions of the rich are kept in their place by soldiers, guns and policemens’ clubs. If these were withdrawn, would the weak at once take the earth and all its fullness from those who for ages have ruled the world? No violent and forcible readjustment of this sort could come. Force is wrong both to commit and to redress evil. In the rule of force, the weak must always fall. For the poor and oppressed to advocate the use of force means that they must still be the victims, for the strongest force must win. All that can help the weak is the rule of brotherhood, of love. Unless this can be proved, there is no way to destroy the injustice that is everywhere the rule of life. To make the weak strong, and the strong weak, could neither destroy injustice nor permanently change the wretched order of the world. A bayonet in the hand of one man is no better than in the hand of another. It is the bayonet that is evil and all of its fruits are bad.
The world must learn that violence is wrong. Individuals who understand this truth must take no part in violent acts, whether to enslave or to free. The inherent cohering forces will hold society together and cause man to cooperate for his highest good. A large part of present society is purely voluntary and due to natural law. It is for force and violence and injustice that the aid of the state is called. Society should not punish. The great burden that rests upon production to support armies, courts and prisons with all their endless officers and staggering weight should be taken from the shoulders of the poor. This of itself would so relieve industry and add to the possibilities of life that the very hazardous occupations that we call criminal would almost wholly disappear. The class from which these victims come is known to be the outcast and the poor. A small
fraction of the vast sum squandered for violence and force would easily place all these dangerous persons beyond the temptations of criminal activity. Even now, with all the injustice of today, the expenditure of public money to relieve suffering, to furnish remunerative employment, to rationally prevent crime by leaving men with something else to do, would produce better results than all the imagined benefits that follow in the wake of scaffolds and of jails.
The effort of the penal codes has never been to reach any human being before violence is done, except to awe him by the brief transitory show of force; but after the act is done, the state must spend its strength and substance for revenge. Most men are driven to criminal acts from the necessities of life and the hatred bred by the organized force they meet. Remove dire poverty, as could be easily done with a tithe of what is now spent on force; let organized society meet the individual, not with force, but with
helpfulness and love, and the inducement to commit crime could not exist. Let society be the friend not the tyrant, the brother not the jailer, and the feeling will be returned a thousandfold. No man or no society ever induced love with clubs and guns. The emblem of the state is the soldier, the policeman, the court, the jail. It is an emblem that does not appeal to the higher sentiments of man – an emblem that so long as it exists will prevent true brotherhood and be a hindrance to the higher sentiments that will one day rule the world.
The concern of society would then be to call back this soul to saner thoughts and a truer, nobler life; not to blacken and destroy, or to plant bitter hatred and despair in the soul of one who might be brought to fine and high realization of human conduct and human life. Under this sort of treatment, a large proportion
of those who commit violent deeds would be brought to a full realization of their acts, and they themselves would seek in every way to repair the ill effects of their evil deeds.
The Right Treatment of Violence
Sentimental and humane thoughts and purposes are often, perhaps generally, based on real life, and have a natural reason for their being. To “turn the other cheek” or to “resist not evil” may seem, at first glance, to have no support in the facts of life, but after all that which makes for a higher humanity, a longer life, and a more vigorous community, is the true philosophy. To use violence and force upon the vicious and the weak must produce the evil that it gives. Like produces like. Clubs, jails, harsh
language and brutal force inevitably tend to reproduce the same state of mind in the victim of the assault. This is not merely a fact in human nature. It is a fact in all nature, plant, animal and man. So long as the gentle springtime rather than the cruel winter brings vegetable and animal life to an awakening earth, just so long will kindness and love triumph, produce joy and life, where force and violence bring only evil and death. Harsh treatment kills plant life, and kind treatment builds it up. Violence and brutality produce their like in animal life, and kindness tames and subdues. With gentleness and kindness, a swarm of wild bees may be handled and controlled, but approach
them with violence and force and each bee is converted into a criminal whose only purpose is to destroy.
With all animal life, the same rule exists; even those beasts whose nature calls for a diet of flesh and blood may be subdued in time by gentleness and love. Man with his higher
intellect and better-developed moral being is much more susceptible to kindness and love. Likewise, he more easily learns to fear and hate. Man readily discerns the feelings and judgment of his fellows, and as readily renders judgment in return. The outcast and abandoned form not the slightest exception to the rule — they know and understand the ones who meet them with gentleness and love, for these they make sacrifices, to these they are faithful, to these they exhibit the higher qualities that show the possibilities of the soul. Cases where one convicted of crime comes from a place of safety and risks, his liberty and life to help save his friend are not rare in the least. True comradeship
and loyalty is met quite as often here as in the higher walks of life. Nothing is more common in ordinary selfish society than to see one man refuse all aid and help to another in financial need. Many convicts and outcasts could teach a much-needed lesson in loyalty and generosity to the exemplary man.
No amount of treatment can reclaim an evil heart if the treatment is administered without love. As children at school, we knew with our young natural instincts the teacher who loved us and the teacher who despised us — the one who awoke feelings of love and kindness, the other hatred and revenge. No heart is so pure that it may not be defiled and hardened by cruelty, hatred and force, and none so defiled that it may not be touched and changed by gentleness and love. Unless this philosophy of life is true, the whole teaching of the world has been a delusion and a snare. Unless love and kindness tends to love, then hatred and violence and force should be substituted and taught as the
cardinal virtues of human life. The mistake and evil of society is in assuming that love is the rule of life and, at the same time, that large classes of people are entirely outside its pale. No parent ever teaches his child any other philosophy than that of love. Even to quarrelsome playmates they are taught not to return blows and harsh language, but to meet force with kindness and with love. The parent who did not depend on love to influence and mold the character of the child rather than force would be regarded not as a real parent but a brute. Force is worse than useless in developing the conduct of the child. It is true that by means of force the little child may be awed by superior brute power, but he gives way only under protest, and the violence that he suppresses in his hand or tongue finds refuge in his heart. Violent acts are not evil — they are a manifestation of evil. Good conduct is not goodness. It is but a manifestation of goodness. Evil and goodness can only be conditions of the inmost life, and human conduct, while it generally reflects this inmost life, may be so controlled as not to manifest the real soul that makes the man.
Every child needs development, needs training to fit him to live in peace and right relations with his fellow man. Every intelligent and right-thinking person knows that this
development must be through love, not through violence and force. The parent who would teach his child to be kind to animals, not to ruthlessly kill and maim, would not teach this gentleness with a club. The intelligent parent would not use a whip to teach a child not to beat a dog. The child is not made into the good citizen, the righteous man, by pointing out that certain conduct will lead to punishment, to the jail or the gallows. The beneficence of fear was once considered a prime necessity in the rearing of the child, and this theory peopled the earth with monsters and the air with spooks ready to reach down and take the helpless child when he wandered from the straight and narrow path; but this method of rearing children does not appeal to the judgment and humanity of today. The conduct of children can only be reached for good by pointing to the evil results of hatred, of in harmony, of force, by appealing to the higher and nobler sentiments which, if once reached, are ever present, influencing and controlling life. The code of hatred, of violence and force, too, is a negative code. The child is given a list of the things he must not do, exactly as the man is furnished a list of the acts forbidden by the state. At the best, when the limits of this list are reached and the forbidden things are left undone, nothing more is expected or demanded. But no code is long enough to make up the myriad acts of life. Kindness or unkindness can result in a thousand ways in every human relationship. If the child or the man observes the written code through fear, the unwritten moral code, infinitely longer and more delicate, will be broken in its almost every line. But if the child or the man is taught his
right relations to the world and feels the love and sympathy due his fellow man, he has no need of written codes; his acts, so far as those of mortals can be, will be consistent with the life and happiness of his fellow man. And this not through fear, but because he bears the highest attitude toward life.
With our long heredity and our imperfect environment, even if the organized force of the state should disappear, even if the jails and penitentiaries should close their doors,
force would only completely die in course of time. Evil environment and heredity may have so marked and scarred some men that kindness and love could never reach their souls. It might take generations to stamp out hatred or destroy the ill effects of life; but order and kindness most surely would result, because nature demands order and tolerance and, without it, man must die. No doubt here and there these so- called evil ones would arouse evil and hatred in return and some sudden act of violence would,
for a time, occasionally, be met with violence through mob law in return. But uncertain and reprehensible as mob law has ever been, it is still much more excusable and more certain than the organized force of society operating through the criminal courts. Mob law has the excuse of passion, or provocation, not the criminal nature of deliberation coldness and settled hate. Mob law, too, generally reaches the object of its wrath, while evidence is fresh and facts are easily understood and unhampered by those rules and technical forms which ensnare the weak and protect the strong. And unjust and unwise as the verdicts of mob law often are, they are still more excusable, quicker, more
certain and less erring than the judgments of the criminal courts.
But neither civil law nor mob law is at all necessary for the protection of individuals. Men are not protected because of their strength or their ability to fight. In the present general distribution of weapons, in one sense, every man’s life is dependent on each person that he meets. If the instinct was to kill, society as organized presents no obstacle to that instinct. When casual violence results, it is not the weakest or more defenseless who are the victims of the causal violence of individuals. Even the boy at school scorns to war upon a weaker mate. The old, the young, the feeble, children and women, are especially exempt from violent deeds. This is because their condition does not call for feelings of violence, but rather awakens feelings of compassion, and calls for aid and help. The nonresistant ever appears to the courageous and the manly. Without weapons
of any kind, with the known determination to give no violence in return, it would be very rare that men would not be safe from disorganized violence. It is only the state that ever lays its hands in anger on the nonresistant.
Neither would nonresistance in the state or individual indicate cowardice or weakness or lack of vital force. The ability and inclination to use physical strength is no indication of bravery or tenacity to life. The greatest cowards are often the greatest bullies. Nothing is cheaper and more common than physical bravery. In the lower animals, it is more
pronounced than in man. The bulldog and the fighting cock are quite as conspicuous examples of physical bravery as the prize-fighter or the soldier. The history of all warfare shows either that physical bravery is not an indication of great excellence or that supreme excellence is very common, in fact almost a universal possession. Under the intoxication of patriotism, or the desire for glory, or the fear of contempt, most men will march with apparent willingness into the face of the greatest danger. Often it requires vastly more courage to stay at home than to enlist — more courage to retreat than to fight. Common experience shows how much rarer is moral courage than physical bravery. A thousand men will march to the mouth of the cannon where one man will dare espouse an unpopular cause. An army, well-equipped and ready for action, has less terror for the ordinary man than the unfavorable comment of the daily press. True courage and manhood come from the consciousness of the right attitude toward the world, the faith in one’s own purpose, and the sufficiency of one’s own approval as a justification for one’s own acts. This attitude is not that of the coward, for cowardice is really disapproval of self, a consciousness of one’s own littleness and unworthiness in the light of one’s own soul, which cannot be deceived.
Intelligent men are willing to accept many truths that they believe are not fitted for the universal acceptance of mankind, and however they may feel that punishment is wrong, they still urge that it will not do to teach this doctrine to the great mass of men and to carry its practice into daily life. But sooner or later, all conduct and all life must rest on truth. It is only fact that can form a basis for permanent theories that tend to the preservation of the race. No one is too poor, or too young, or too vicious to know the truth, for the truth alone is consistent with all facts of life, and this alone can furnish any rule of life. The truth alone can make you free. When society is taught the truth
that it is wrong to punish, to use force, to pass judgment on man, it will have no need for jails. The man who really knows and understands this truth can have no malice in his heart, can use no force and violence against his fellow, but will reach him with love and pity. The man or society that understands this truth will know that so-called crime is only so-called crime: that human conduct is what the necessities of life make of the individual soul. Then in reality, as now only partially, men will turn their attention
to the causes that make crime. Then will they seek to prevent and cure, not to punish and destroy. Then man will learn to know that the cause of crime is the unjust condition of human life; that penal laws are made to protect earth’s possessions in the hands of the vicious and the strong. Man will learn that poverty and want are due to the false conditions, the injustice which looks to human law and violence and force for its safeguard and protection. Men will learn that crime is but the hard profession that is left open
to a large class of men by their avaricious fellows.
When new opportunities for life are given, a fairer condition of existence will gradually be opened up and the need for violence and the cause of violence will disappear.
Instead of avenging a murder by taking a judge, sheriff, jurors, witnesses, jailer, hangman and the various appendages of the court — by taking these and staining their hands with blood and crime, the world will make the original murder impossible, and thus save the crimes of all. Neither will the vicious control without the aid of law. Society ever has and must ever have a very large majority who naturally fall into order, social adjustment and a rational, permissible means of life. The disorganized vicious would be far less powerful than the organized vicious, and would soon disappear.
Punishment to terrorize men from violating human order is like the threat of hell to terrorize souls into obedience to the law of God. Both mark primitive society, both are
degrading and debasing, and can only appeal to the lower instincts of the lower class of men. Most religious teachers have ceased to win followers by threats of hell. Converts of this sort are not generally desired. The religion that does not approach and appeal to men along their higher conduct is not considered worthy to teach to man. And those souls who cannot be moved through the sentiments of justice and humanity, rather than threats of eternal fire, are very, very rare and even should a soul exist, the fear of hell would cause it still further to shrivel and decay.
Hatred, bitterness, violence and force can bring only bad results — they leave an evil stain on everyone they touch. No human soul can be rightly reached except through charity, humanity and love.
from The Machinery of Justice. Chapter XV & XVI Charles H. Kerr and Co., Chicago
This reading is from The Class of Nonviolence, prepared by Colman McCarthy of the Center for Teaching Peace, 4501 Van Ness Street, NW, Washington, D.C. 20016 202.537.1372