Wechsler Rationale of The Law of Homicide II

A Rationale of the Law of Homicide II
Author(s): Jerome Michael and Herbert Wechsler

Source: Columbia Law Review, Vol. 37, No. 8 (Dec., 1937), pp. 1261-1325
Published by: Columbia Law Review Association, Inc.
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COLUMBIA LAW REVIEW
VOL. XXXVII DECEMBER, 1937 NO. 8
A RATIONALE OF THE LAW OF HOMICIDE II
In our survey of the considerations which are of principal im-

portance for an evaluation of t'he law of homicide, we have thus far
been concerned with the problems involved in distinguishing criminal
from non-criminal homicides.' Our present concern is with the less
tractable questions involved in determining what should be done with
those individuals whose homicidal behavior is criminal and who are
thus rendered amenable to compulsory treatment. It will be recalled
that they are individuals with whose behavior2 the criminal law ought
to concern itself for either or both of these reasons: (1) that it is
behavior of the sort which it is desirable and possible to deter; (2) that
it usually indicates that the actor is more likely than the generality of
men to behave in undesirable ways in the future.3 On the analysis of
the criteria of responsibility previously advanced, the homicidal behavior
of irresponsible offenders is not significant for the first of these reasons;
the internal character of their behavior and their own psychological na-
ture are such that it is relatively futile to treat them with a view to de-
terring potential offenders.4 Hence, no difficulty is experienced in such
cases in concentrating on the incapacitation and reformation of actual of-
fenders as the ends of their treatment; the problem is only that of order-
ing those ends in relation to one another and of seeking appropriate
means. But the criminally homicidal behavior of responsible offenders is
1 See Wechsler and Michael, A Rationale of the Law of Homicide I (1937) 37

COLUMBIA LAW REV. 701, 730-761. For a description of the behavior and treatment
provisions of the contemporary Anglo-American law see id. at 702-730.
'We are here presupposing that criminal behavior has been properly defined
and that only guilty persons are convicted of such behavior. In making this as-
sumption we are not, of course, confusing the actual and the ideal. Our purpose is
to pursue the problems of treatment as they arise when the behavior content of the
law is formulated and administered as it should be. In so far as this is not the case,
a special problem arises on which cf. note 42, infra.
3 See Wechsler and Michael, supra note 1, at 730-733.
4Id. at 752-761. It should be remembered that the futility is only relative since
severe treatment of the irresponsible may have some deterrent effect upon persons
whom it is possible to deter. We think the probability and extent of such an effect
are sufficiently slight to be dismissed, if the "right and wrong" test alone is em-
ployed. If the "irresistible impulse" test is employed as well, the probable effect
in this regard is more significant. Accordingly, there is a serious question whether
or not that test should be employed. Id. at 756-757.
1262 COLUMBIA LAW REVIEW
significant for both of the reasons we have stated; consequently the de-
terrence of potential offenders is a practicable objective of their treat-
ment. This complicates the problem of ordering the ends of the treat-
ment of the responsible and makes the evaluation of the law relating to
and the methods employed in their treatment correspondingly more
difficult. But more than this, the deterrence of potential offenders and
the incapacitation and the reformation of actual offenders are not the
only values which must be considered in determining the ends of
treatment. Although criminals ought to be subjected to treatment for
the sake of preventing crime and although the deterrence of potential
offenders and the incapacitation and reformation of actual offenders
are the proximate means to the prevention of crime by the criminal law,
the methods employed in treating criminals may in their collateral conse-
quences serve or disserve other social ends and their potentialities in
these respects must also be taken into account.5 By the same token, the
position of deterrence, incapacitation and reformation in relation to one
another, as the ends of treatment, cannot be determined solely by refer-
ence to the crime preventive efficacy of a system derived from one order-
ing of these ends as opposed to another, even when their relative efficacy
in this regard can be foretold. The extent to which other desirable
ends will be served or disserved by various alternative policies is an
important element in the choice. No program for the determination
of methods of treatment, no set of criteria for their evaluation, can
ignore this obvious multiplicity of treatment ends.6
In the present article we shall consider the two competing nor-
mative hypotheses which merit serious attention: (1) the so-called
classical hypothesis which dominated nineteenth century English
thought, that the dominant purpose of treatment should be the deter-
rence of potential offenders; (2) the positivist hypothesis which domi-
nates contemporary penological thought, that incapacitation and re-
formation should be the dominant treatment ends.7 We shall explore
5 It is obvious enough that the prevention of criminal behavior is not the only
end of the state and that the criminal law is not the only means to the prevention of
undesirable behavior.
6 Much contemporary literature either ignores or denies this multiplicity in
favor of absolutistic positions of one sort or another. In so far as that is the case,
the level of debate of the problems of treatment is very similar to that of the debate
begun by the first Positivist strictures against the so-called "Classical" school. See
e.g. FERRI, CRIMINAL SOCIOLOGY (Mod. Cr. Sc. tr. 1917). That the contemporary
debate abroad proceeds in much more genuine terms is fully attested by the papers
presented at Premier Congres International de Droit Penal, Bruxelles, 1926. See
ACTES Du CONGRES (Paris, 1927) esp. 154-251; see also e.g. SALEILLES, THE
INDIVIDUALIZATION OF PUNISHMENT (Mod. Cr. Sc. tr. 1911); JIMENEZ D
EL NUEVO C6DIGO PENAL ARGENTINO (1928).
7 The extent to which Classical and Positivist theory involves a genuine opposi-
tion is obscured largely because of misstatements of the issue by the Positivists
A RATIONALE OF THE LAW OF HOMICIDE II 1263
each of these hypotheses in turn with a view to articulating the sub-

ordinate principles to which it leads and to analysing the more gen-
eral problems involved in its application.8 The extent to which the
opposition between them is genuine will thus be indicated by the dif-
ference in the problems which they respectively raise and the prin-
ciples to which they respectively lead. An understanding of the scope
of the opposition, in so far as it is genuine, is a necessary preliminary
to a consideration of the ultimate question: which hypothesis should
prevail either in general or in specific types of cases? In pursuing this
course, criminal homicide remains the center of our interest, but much
of the discussion must nevertheless proceed broadly. Homicidal be-
havior cannot be dealt with on principles incompatible with those em-
ployed in dealing with other criminal behavior of comparable gravity.
For human beings, insistent upon equality before the law, properly view
the treatment confent of the criminal law as a system of judgments
about the relative undesirability of behavior and the relative social worth
and dangerousness of individuals. There is room for much diversity
within a system but, if it is to win respect, it must fit together some-
how as an ethical whole.
themselves. Taking the false position that punishment is necessarily retributive in

purpose, they have attributed to all Classical theorists the position that it should be
retributive. Taking the position that retribution pre-supposes freedom of the will
in the Kantian sense, they have assumed that all who defend the institution of pun-
ishment believe in such freedom. Thus the impact of the Positivist attack is on the
ethics of retribution and the metaphysics and psychology of freedom. The attack is
proper in so far as it is directed against writers in the Kantian and Hegelian tradi-
tion and it is to be regretted that it is for the most part unnecessarily weak. But the
attack is improper in so far as it is directed at writers in other traditions, such, for
example, as Beccaria, Bentham and Livingston. For in the case of these men,
commonly regarded as originators of Classical ideas, the positions attributed to
them are in flat contradition with those which they themselves took. They regarded
punishment primarily as a means to deterrence, deterrence as a means to prevention,
and prevention as a means to the social welfare, which is strictly equivalent to the
Positivist conception of social defense. They regarded deterrence as possible be-
cause they believed that the behavior of human beings is frequently motivated by the
desire to avoid threatened pain, a view which implies determinism in the psychologi-
cal order quite as fully as the view that human beings are educable. Accordingly,
we think the issue is fairly stated in the text and that when it is so stated discussion
is meaningful and possible. That Ferri was unwilling so to state it in 1926 is ap-
parent from his paper at Premier Congres International de Droit Penal. See
ACTES Du CONGRES (1927) 196-208. But cf. GIVANOVITCH, id. at 237-251, esp. 239-
241, whose paper is generally consistent with this analysis. See also SALEILLES,
op. cit. sutpra note 6; JiMENEZ DE ASUTA, op. cit. suipra note 6 at 110 et seq.; Wechs-
ler and Michael, supra note 1, at 730, n. 126.
8 To analyse the deterrent, incapacitative and reformative efficacy of all the
treatment rules, practices or methods which are or might be used in dealing with
criminally homicidal behavior and to consider the extent to which they serve or
disserve other social enids far transcends the purpose of this article. Our purpose
is to formulate the problems and, so far as possible, to state the governing criticaL-
considerations, not to construct an ideal system.
B. THE TREATMENT OF PERSONS WHO COMMIT CRIMINAL HOMICIDES
1. Treatnment Viewed Primarily as a Means to Deterrence

As a means to the deterrence of potential offenders, it is reason-
able, as we have said,9 to subject all actual offenders to punishment,
that is, to painful treatment, unless they are members of an identifi-
able class of persons who are non-deterrable and whom it is therefore
futile to threaten.10 Other things being equal, the more severe the
punishment which is threatened and the higher the probability that
punishment will be inflicted, the more effective as a deterrent the threat
is likely to be. We may agree with Beccaria and his disciples that of
these two factors the probability of some punishment is the more im-
portant;1" that the more likely punishment is, the less increases in its
severity may be expected to augment its deterrent efficacy. It is
nevertheless true that so long as the probability of punishment re-
mains constant, we may expect the strength of the motive to avoid it
to vary with the severity of the penalty. The simple, military view
is, accordingly, to make punishment as certain as it can be made and
to employ capital and other drastically severe penalties on a broad
scale. However practicable this course may be for the artificially
simplified society created by war or martial law,12 it is utterly im-
9See Wechsler and Michael, supra note 1, at 731, 735-6, 752-7.

" Von Hentig makes the point that for some persons the prospect or danger of
punishment may be an incentive to engage in punishable behavior rather than a de-
terrent. Von Hentig, Putnishment (1934) 12 ENcyc. Soc. Sc. 712. This is a point
which many psychoanalysts regard as highly important and frequently leads to a
denial of all deterrent efficacy to punishment. But the persons in the general popu-
lation to whom the threat of punishment is likely to be an incitement, and the occa-
sions on which it is likely to have this effect, are certainly far less numerous than the
persons to whom and the occasions on which the threat is likely to operate as a
deterrent. It may be observed in passing that persons incited by the threat of
punishment may be included within the class of the irresponsible if the irresistible
impulse test is employed. See Wechsler and Michael, supra note 1, at 754-757.
Moreover, Von Hentig's point is of limited significance in the present context since
the threat of treatment designed to incapacitate or reform may be as likely to oper-
ate as an incitement as the threat of treatment designed to deter.
By the assertion in the text we do not, of course, imply that we think the threat
of punishment is nearly as effective a means to the prevention of criminal or other-
wise undesirable behavior as the creation or promotion of those social conditions
which make it easier for men to lead good lives, such, for example, as a just dis-
tribution of external goods, economic security, health, education and recreation. It
should not be forgotten that the same hypothesis which justifies the conclusion that
undesirable behavior may be deterred by the threat of punishment also justifies the
conclusion that desirable behavior may be encouraged by the promise of reward.
See EWING, THE MORALITY OF PUNISHMENT (1929) c. V. One of the reasons why
an unjust state of social affairs is conducive to undesirable behavior is that the
reward of desirable behavior is likely to be at a minimum.
" Perhaps the best statement of the position and the sort of evidence upon which
it rests is in 1 THE SPEECHES OF SIR SAMUEL ROMILLY IN THE HOUSE OF COM-
moNs (1820) 188-190.
l'Not the least of the objections to war is the over-simplified conception of
justice which military necessity forces men to adopt.
practicable in a civilized society geared for peace. In the first place,

limitations which necessarily operate to make punishment genuinely
uncertain, especially in a large country, must be placed upon the ac-
tivities of officials in the detection of crimes and in the apprehension
and prosecution of those charged with committing them, in order to
protect innocence and to serve other social ends.13 In the second
place, there is a point at which the wide-spread imposition of drastically
severe penalties arouses in ordinary men a sympathy for those accused
of crime which leads them to refuse to participate in their infliction,
as complainants, as witnesses, as jurors, and even as officials.'4 When
this result occurs, nullification ensues and the effect of the severity of
threatened punishment is greatly to increase its actual uncertainty15 as
well as to provoke a general hatred of the law which must culminate in-
evitably in its change. The severity of punishment must accordingly be
mitigated to avoid nullification, if for no other reason.
This popular insistence upon an ordering of the severity of punitive
13 It is obviously in these terms that limitations upon the legal powers of the
police and the legal protections accorded to persons accused of crime must be justi-
fied and, in our opinion, are for the most part justifiable.
'1 This was the situation in England in Romilly's time, produced primarily by
the widespread applicability of the death penalty against which he [see e.g. op. cit.
supra note 11, at 108-194] and some of his contemporaries [see e.g. EDEN, PRINCI-
PLES OF PENAL LAW (1771) 13-14, 21-39; 1 BENTHAM, WORKS (1843 ed.) 441 et
seq., 525 et seq.] successfully protested. It is concisely summarized in REPORT OF
THE SELECT COMMITTEE ON CAPITAL PUNISHMENT (1930) pp. 5-12. For studies
of various aspects of the subject see SECOND REPORT FROM HIS MAJESTY'S COM-
MISSIONERS ON CRIMINAL LAW (1836) 19 et seq.; 2 PIKE, HISTORY OF CRIME IN
ENGLAND (1876) cc. XI, XII; 1 STEPHEN, HISTORY OF THE CRIMINAL LAW OF`
ENGLAND (1883) c. XIII; PHILLIPSON, THREE CRIMINAL LAW REFORMERS (1923) i
HALL, THEFT, LAW AND SOCIETY (1935) c. 3; O'BRIEN, THE FOUNDATION OF
AUSTRALIA (1937) esp. 68-112.
15 It will be observed that only when severity increases uncertainty is it neces--
sary to determine which of the two qualities of punishment is the more important for
the purpose of a choice between them. Paley, who defended the practices with re--
gard to the death penalty in Romilly's time, agreed with his judgment that of these'
two qualities certainty is the more important. PALEY, PRINCIPLES OF MORAL AND
POLITICAL PHILOSOPHY (llth Am. ed., 1825) 387. He argued that since the lack
of professional police made punishment genuinely uncertain and since there was no-
alternative to the death penalty, under the conditions then prevailing, comparable in
its deterrent efficacy, the death penalty must be retained and be applicable broadly to,
all behavior which might require for its prevention the terror of death. But he
agreed that the penalty ought not be inflicted in every case. Hence, he concludect
that the wise and humane policy was to threaten death broadly but to carry out the
threat only in the worst cases and that this is what English law in effect did. Id. at
374-376. He failed to see that, as Romilly pointed out, this practice was producing
nullification and consequent immunity from any punishment in many cases, and that
it was therefore inconsistent with the evaluation of certainty as more important tharr
severity. This point (as well as others) was also missed by Madan who argued
that because certainty is more important than severity the sound policy was not to
limit the cases in which the death penalty was applicable but rather to increase the
number of cases in which it was executed. MADAN, THOUGHTS ON EXECUTIVE JUS-
TICE (1784). The latter position was foreshadowed by FIELDING, AN ENQUIRY
INTO THE CAUSES OF THE LATE INCREASE OF ROBBERS (1751) sect. X, to which, it
treatment is not necessarily16 based upon a retributive philosophy, as

many have come to think. There are sound reasons for limiting the
extent to which actual offenders may be sacrificed for the purpose of
deterring potential offenders. In the first place, severe punishment
may not be worth what is costs, measured by the greater pain which
the more severe penalty usually inflicts upon the offenders who suffer it,
and upon those who are concerned with their welfare. In the second
place, the gradation of punishments in accordance with the social unde-
sirability of behavior offers some incentive to potential offenders to en-
gage in less rather than more undesirable criminal behavior.17 In the
third place, it is at least arguable that the brutal treatment of criminals,
and especially the use of the death penalty and of corporal punishments,
tends to an indeterminate degree to brutalize the non-criminal popu-
lation, while providing subtly suggestive examples of the very kinds
of behavior that the penalties are designed to deter.18 Though the
is encouraging to note, Dr. Johnson took violent exception. THE RAMBLER, No.
114 (April 20, 1751); see J. L. and B. Hammond, Poverfy, Criime and Philanthropy
in 1 TURBERVILLE, JOHNSON's ENGLAND (1933) 300, 314 et seq. Of course, the offi-
cial reactionaries under Ellenborough drew far more heavily upon Paley's ideas
than upon Fielding's and Madan's. The solution to the problem inhered not merely
in the curtailment of the death penalty but also and more importantly in the creation
of a professional police [on which see J. Hall, Legal and Social Aspects of Arrest
Withoutt a Warrant (1936) 49 HARV. L. REV. 566, 578 ef seq.] and the development
of a sane type of imprisonment.
It should be noted that while Paley's position with respect to the use of the
death penalty was patently unsound as applied to the extreme conditions to which
it was addressed and is, perhaps, inapplicable in any case in which threatened sever-
ity is producing nullification, it is not without merit in other situations. Cf. notes
81, 85, infra. The whole problem was.wisely considered by the Commissioners who
reported in 1836. Loc. cit. supra note 14; see also MONTAGU, OPINIONS OF DIFFER-
ENT AUTHORS UPON THE PUNISHMENT OF DEATH (1809); WAKEFIELD, FACTS RE-
LATING TO THE PUNISHMENT OF DEATH IN THE METROPOLIS (1832) * COLQUHOUN,
POLICE OF THE METROPOLIS (1796).
1' To what extent it is acctutlly based on retributive grounds raises a more diffi-
cult question. Cf. Sharp and Otto, A Stutdy of the Popular Attitude Towards Re-
tributive Punishment (1910) 20 INT. JOURN. OF ETHICS 341; Retribution ancd De-
terrence in the AMoral Judgmients of Common Senise (1910) id. at 438.
17 Consider in this connection the opinion expressed by many witnesses before
the Select Committee on Capital Punishment that the applicability of the death
penalty to murder and its inapplicability to such crimes as robbery and burglary
furnishes an important motive for the scant use of firearms by English criminals.
See e.g. MINUTES OF EVIDENCE (1930) pp. 14, 63, 484. From this point of view
there is obvious folly in the movement to extend the applicability of the death
penalty to such crimes as kidnapping, except of course if the victim is killed.
18 The evidence so assiduously collected by the niineteenth century reformers as
to the bestial behavior accompanying and following public executions [see e.g. 1
LIVINGSTON, WORKS (1873 ed.) 194 ct seq.; REPORT OF THE CAPITAL PUNISHMFNT
COMMISSION (1866) ], evidence that can be supplemented by the experience of
modern lynchings, leaves little doubt as to the validity of this argument in so fa
as brutal punishments are publicly inflicted. It must be conceded that the force of
the evidence as an argument against the death penalty was much reduced by the
substitution of private for public executions. But the widespread and sensational
newspaper publicity now accorded to the details of capital cases has established in
subtler form an atmosphere quite comparable to that which prevailed when execu-
A RATIONALE OF THE LAW OF HOM1ICIDE II 1267
use of life-imprisonment may avoid these dangers to some extent, the

utter destitution of men without hope makes their government in
prisons in large numbers an exceedingly difficult if not an impossible
task. In the fourth place, prisons are relatively few in number and
expensive to build and maintain; so long as their number is limited,
the prison population must be an ever-shifting one. Finally, if the
punishment inflicted upon actual offenders does not wholly incapacitate
them, by killing them or incarcerating them for life, great severity may
result in returning them to society utterly unfit for a non-criminal life,
hardened, embittered and determined to exact their revenge. Greater
leniency may more than make up in the reformative efficacy of treat-
ment what is lost in its efficacy as a deterrent.
These considerations suffice in themselves to condemn the inflic-
tion of punishment with uniform, Draconian severity in all cases. While
this much is clear, precisely when and to what extent mitigation is
necessary or desirable is unclear. Viewed solely from the point of
view of avoiding nullification, the difficulty is that of gauging what is
general, fundamental and enduring in a popular sentiment which is
rarely uniform and which varies from crime to crime with an incalcul-
able number of accidental factors, including, for example, the length of
time between the commission of the crime and the imposition of the
penalty, the general level of education, what the press and the radio are
saying about crime in general and about the particular crime, the temper
of humanitarian feeling and the popularity and strength of the govern-
ment. It is arguable that the legislator can n-meet this difficulty by
consigning the question of punishment entirely to the discretion of the
administrators who determine guilt; nullification cannot occur if there
is no mandate to nullify.19 But this solution does not touch the prob-
tions were public. Consider, for example, the circumstances surrounding the execu-
tion of Ruth Snyder [see N. Y. Times, Jan. 13, 1928, p. 1, col. 8, Jan. 14, p. 16, col.
2, Jan. 16, p. 7, col. 4, Jan. 17, p. 12, col. 6; LAWES, TWENTY THOUSAND YEARS IN
SING SING (1932) 310 et seq.] and, more recently, of Hauptmann; in the former
case a picture of the death-chamber scene was published in one of the newspapers;
in the latter, a radio broadcast announced to a breathless public that the event had
occurred. Cf. Von Hentig, loc. cit. sutpra note 10. No doubt the deleterious effects of
events such as these depend upon the capacity of men to bear in mind the high
purpose for which the capital penalty is imposed and thus to avoid identifying the
gallows and the bull-ring. The question is: to what extent have men got that
capacity? Quite apart from the question of the effect of corporal and capital punish-
ment upon the general population is that of their effect upon the persons who must
administer them and upon the population of the prison in which they are admin-
istered. These consequences may be a more tangible, if a less important, matter.
19 If the matter is consigned to the discretion of some other administrator, such
as the judge, the danger of nullification by the jury remains, though it may be
smaller than if an offensive penalty is legislatively prescribed. Whether or not
that is so will depend upon the jury's guess as to what the judge is likely to do in
the event of conviction.
1268 C-OLUMBIA LAW REVIEW
lem of nullification by complainants and witnesses, and, in any event,

gives rise to new difficul.ies. Unbridled administrative discretion, par-
ticularly if vested in the shifting and relatively incompetent personnel
of juries, thwarts the development and articulation of uniform policies,
with consequent inequality of treatment; and if principles are pre-
scribed to govern tne exercise of discretion, it is no longer unbridled.20
Moreover, miany adminiistrators may be expected to balk at imposing
severe penalties on their own responsibility, although they would be
willing to do so if they were merely enforcing legislatively declared
law. Finally, since the avoidance of nullification is not the only value
involved, the more extensive the discretion of administrators, the more
difficult it would be for them to avoid asking themselves how they
should exercise their discretion so as to fulfill their responsibility and
win public respect and support. Once that question is asked, the prob-
lem arises anew, though from the administrative rather than the legis-
lative point of view. In other words, some one, legislator or adminis-
trator, must face the problem of ordering the severity of penalties
within the limiiits of popular tolerance so that the welfare of individual
offenders shall be sacrificed for the sake of deterrence only in those
instances in which the sacrifice is most necessary and serves the most
desirable ends. We must, therefore, address ourselves to an analysis of
that problem. If we are right in believing that the core of the popular
demand is for some gradation of the severity of punitive treatment in
accordance with the actual or probable results of crimes of various sorts
and the characters of criminals of various sorts,21 the major criteria for
an ordered mitigation of punishment are, it will be observed, inherent
in popular sentiment itself.22
This problem is discussed at greater length, infra, p. 1308 et seq.

21We would venture the more specific but more tentative opinion that at the
present time, in democratic countries at least, there would be vigorous popular oppo-
sition (1) to the use of the death penalty except in unmitigated cases of homicide
and, possibly also, of kidnapping and rape-crimes which appear to arouse least
sympathy for the accused-and (2) to the use of life imprisonment on a scale much
broader than this, except, perhaps, in the case of professional criminals with long
records of convictions.
' In the following discussion we do not rely upon authority and have made no
attempt to document the text with the tremendous literature both before and since
Beccaria's CRIMES AND PUNISHMENTS (Eng. tr., 1788). Such documentation would
show that few, if any, of the points made in the text are novel, but would not fur-
ther our theoretical purpose. It may be useful, however, to state that our effort has
been to take the scheme of ideas set forth in such books as BENTHAM, PRINCIPLES
OF MORALS AND LEGISLATION, 1 WORKS (1843 ed.) 1 et seq., PRINCIPLES OF THE
PENAL LAW, id. at 367 et seq.; LIVINGSTON, WORKS ON CRIMINAL JURISPRUDENCE
(1873 ed.) and develop or modify them for our purpose in the light of a century of
writing on the problems with which they dealt. In discussing the character of the
offender we have drawn heavily on such classics as ARISTOTLE'S ETHICS and the
SUMMA THEOLOGICA OF ST. THOMAS AQUINAS (especially the Treatise on Man,
the Treatise on Human Acts, and the Treatise on Habits). We think the text will
A RATIONALE OF THE LAW OF HOMlIICIDE II 1269
IL There are several reasons why the severity of penalties should

be correlated with the relative undesirability of the behavior for which
they are imposed. The more undesirable any kind of criminal behavior
is, the less expedient it is to relax our efforts to prevent it, the more
important it is that we make the incentive to avoid it, which the threat
of punishment provides, as strong as it can be made. Moreover, such
a correlation serves, as we have said, as an inducement to potential
offenders to pursue their ends by the least undesirable criminal means;
it also serves as an object lesson in relative evil which is not without
some value as general moral education.
II- There are equally valid reasons why the severity of penalties
should be correlated with the characters of individual offenders. The
more numerous a potential offender's motives to refrain from criminal
behavior apart from that of avoiding a threatened penalty, the more he
is moved by them habitually, the greater his capacity to guide his con-
duct by such motives, the less need there is for a vigorous threat to
counteract whatever desires to engage in criminal behavior he may
have from time to time.23 Moreover, for the most part, the more severe
a penalty, the greater is its incapacitative effect and the more likely
it is to harm and the less likely to reform the actual offenders sub-
jected to it.24 Obviously, the more dangerous men are, the more de-
indicate, however, that while employing the language and substance of traditional
psychology we have attempted to indicate the respects in which modern contribu-
tions to psychological knowledge are useful for the analysis or resolution of the
problems we have undertaken to discuss.
3 It may be observed in addition that the better the individual is in this respect
the more likely a given penalty is to appear to him to be severe. Compare the
probable significance of the prospect of a year in prison to an habitual offender on
the one hand and to a person leading a useful and non-criminal life on the other.
24Cf. in this connection the testimony of Alexander Paterson, English Prison
Commissioner, before the Select Committee on Capital Punishment:
"What then is the effect of imprisonment for many years on a man of emotional
or sensitive nature, and in particular on a youth whose character is not yet fully
formed ? . . . I must . . . say very bluntly that even among the ameliorative condi-
tions which have of recent years been introduced into our English.prisons, I do
myself see a definite deterioration among men serving a long sentence of imprison-
ment. Whatever means of education, stimulation and recreation may be employed,
however you may seek to ring the changes on handicrafts and literature, skittles or
chess or ping-pong, despite the invaluable labours of most devoted voluntary work-
ers, it requires a superman to survive 20 years of imprisonment with character and
soul intact.
"We may not have the best prison system, but I do claim that we have the best
prison service in the world. Our officers do all that is humanly possible to keep
alive what is best in their men. Even so there is a deadening of initiative, a loss of
perspective in so small a world, and an unnatural reaction from this artificial life
of 300 ill-consorted bachelors. It is a monastery of men who have not chosen to be
monks.
"I gravely doubt whether an average man can serve more than ten years in
prison without deterioration. If so slight an alternative to the death sentence is
considered to be lacking in deterrence and terms of twenty years are inevitable, then
1270 COLUMBIA LAI'V REVIEWY
sirable it is that they be thoroughly incapacitated; the better the lives

men can lead, the less desirable it is to debase them; the more likely it
is that men are corrigible, the more tragic it is not to attempt to re-
form them.
Though these are, in our judgment, the major criteria for order-
ing the severity of punishment, they are not exhaustive. Two sub-
ordinate principles merit consideration. They are:
I. The severity of penalties should be correlated with the strength

of the desires which motivate men to engage in criminal behavior of
different sorts under different circumstances. The stronger the desire,
the more need there is for severity in the threatened penalty in order to
counteract it.
IV. The severity of penalties should also be correlated with the

presence or absence of a discernible relation between the criminal act
and some injustice done to the actor by another individual or even by
society as a whole. Where such a relationship can be perceived, a
mitigation of the penalty on that ground serves, as T. H. Green has
pointed out,25 to direct attention to and strengthen the popular aware-
ness of the original injustice, a result that may be of value in prevent-
ing or remedying such injustices in the future. The greater the in-
justice, the less vigorous the efforts that are being made to deal with
it, the more confidently the criminal act can be attributed to it as a
cause, the stronger the case for mitigation for that reason becomes.
To the extent that these principles can be developed and em-
ployed, the severity of punishment should be susceptible of a rough
ordering which is rationally adapted both to its primary deterrent pur-
pose and to the other ends which even the punitive treatment of of-
fenders should as far as possible serve. We must therefore consider
the problem of developing these principles and applying them to dif-
ferent types of cases.
I- THE RELATIVE UNDESIRABILITY OF CRIMINAL BEHAVIOR

Since the undesirability of criminal behavior of any sort depends
upon the character of its probable consequences and upon the degree
of their probability, the relative undesirability of various kinds of
criminal behavior can be determined only by a comparison of their
the choice is between a penalty that destroys the physical life, and one that will in
the vast majority of cases permanently impair something more precious than the life
of the physical body." MINUTES OF EVIDENCE p. 485.
' LECTURES ON' THE PRINCIPLES OF POLITICAL OBLIGATION (1927) 193-4.
probable consequences. Even when our knowledge of probable con-

sequences is fairly adequate, as it frequently is not, such comparisons
entail all the difficulties inherent in balancing ethical and political values.
The problem is therefore even more complicated than that of evaluating
a single kind of behavior, or determining whether its potential bad
consequences outweigh such potency as it may have for good.26 But
we can nevertheless make some rough discriminations. Criminal be-
havior which endangers life is usually worse than that which. involves
a comparatively serious jeopardy of bodily injury; and that which
endangers life or health is usually worse than that which imperils only
economic interests. Since most of the crimes which we regard as grave
ones serve few and equally few good ends, unless they are exceptionally
motivated, there is some basis at least for the common modern hierarchy
of "crimes against the person" and "crimes against property," and for
condemning such crimes as arson and robbery, which endanger both
persons and property, more severely than those larcenous crimes which
jeopardize only external goods.27
As far as homicidal behavior is concerned, it seems clear that two
homicidal acts can differ from one another in three significant respects:
(1) the extent to which they respectively endanger life; (2) the extent
to which they respectively imperil other valuable interests; and (3) the
extent to which they respectively serve good ends. Hence, other things
being equal, one sort of homicidal act is more undesirable than another
if it is more likely to result in death28 or if it jeopardizes a greater
number of lives or if it occurs more frequently. And even though the
two sorts of acts jeopardize life equally, one of them may be con-
sidered more undesirable than the other if, for example, it is more
likely to cause death in an unusually painful way or to destroy those
upon whose existence other interests, such as the stability of the state,29
depend, or if it is more likely to result in bodily injury or the destruc-
See Wechsler and Michael, supra note 1, at 739-746.

27 Even when the act of appropriating or destroying property does not, as in the
case of robbery or arson, directly endanger life or health, the economic loss to the
owner may be so extreme and his other resources so limited as to subject him to
danger of that sort. By "jeopardizing only external goods" we mean threatening
the sort of injury which property loss entails when it does not have this extreme
effect.
' If the consent of those whose lives are endangered or lost, freely given and
not induced by fraud, does not constitute a justification [see Wechsler and Michael,
sZupra note 1, at 739-740] it is certainly a factor reducing the relative undesirability
of the homicidal act, a consideration which is probably the basis of the treatment
of consent in many codes as a mitigating circumstance. See e.g. INDIAN PENAL
CODE (1860) art. 300, exception 5; ITALIAN PENAL CODE (1931 tr.) art. 579.
'Assuming, of course, that the state is sufficiently just to deserve to maintain
its authority; if it is not, the fact that an act threatens its stability is likely to be a
desirable rather than an undesirable potentiality of the act.
tion or loss of property as well as of life. Similarly, other things being

equal, one sort of homicidal act can be regarded as less undesirable
than another if it does, and the other does not, serve good ends. If it
is the sort of homicidal act which is likely to put an end to human suf-
fering, or to alleviate or ameliorate some unjust state of affairs, or to
incapacitate a dangerous criminal, it may not be justifiable on those
grounds. Nevertheless, the good potentialities of the evil act cannot
be disregarded in comparing it with other sorts of homicidal acts which
have no or fewer good ends or serve them less well. What is to be
evaluated relatively are all the probable consequences of different kinds
of homicidal behavior and not merely their probable evil results.30
II THE CHARACTER OF THE OFFENDER

By character we mean only the sum of a man's potentialities for
good and evil conduct at whatever time they are estimated. The good-
ness of the lives men are capable of living, their capacity to live better
lives than they have theretofore lived, their dangerousness, that is, the
probability that they will commit crimes, are all aspects of their charac-
ters in that sense. But even when we are clear as to the conduct which
we regard as good or evil, our ability to judge character is sadly
limited, as everyone knows. Although here, as in the case of our esti-
mates of the relative undesirability of different kinds of behavior, we
must acknowledge the fragility of our judgments, we ought also recog-
nize that common experience is not a wholly inadequate basis for judg-
ments of character, that it can be and has been analytically explored
and refined, and that it can be and has been supplemented to some extent
by psychological, physiological and other empirical research, as well as
informed by centuries of effort to solve human behavior problems by
processes of trial and error.
If criminal behavior is properly defined, all instances of it are
socially undesirable. Hence, our problem is that of determining the
characters of men who on at least one occasion have engaged in be-
havior of that sort. But just as all kinds of criminal behavior are not
equally undesirable, so all kinds are not equally indicative of the ex-
istence or nature or extent of defect in character. In a general way,
the hierarchy of social values which governs our estimation of the
undesirability of behavior of various sorts, inevitably reflects itself as a
scheme of moral values in our estimates of the characters of those who
behave in such ways. An act of embezzlement by a person in a posi-
30Thus one sort of homicidal behavior may be less undesirable than another
even though it more seriously endangers life; its greater potentialities for evil may
be offset by its greater potentialities for good.
tion of trust suggests that the embezzler has a greater potentiality for
undesirable acquisitive conduct than those in comparable positions who
have never embezzled. But it does not by itself indicate the same
potentiality for undesirable homicidal behavior as a homicidal act, or
even as a robbery; and if we are more desirous of preventing homicides
than the kind of redistribution of wealth which embezzlement involves,
we must conclude that the characters of the killer and the robber are
worse than that of the embezzler. But as we learn more about these
men, we may alter this judgment. The embezzler may be a member
of a criminal gang, ready to engage in any sort of criminal behavior
for profit. The robber may be a youth seduced into a first criminal
experience by the pressure of dire need. The homicide may have been
the response to a torturing and otherwise irremediable injustice. In
spite of such differences in circumstance and motivation, we may still
regard the homicide as more undesirable than the robbery and both as
more undesirable than the embezzlement. It does not follow, however,
that we would make a similar judgment regarding the characters of the
three actors. On the basis of what we can learn of the embezzler's
history and of the circumstances of the embezzlement, we may conclude
that his criminal act reflects an habitual rather than a sporadic ordering
of his passions31 and his reason.32 On the basis of similar evidence
we may reach the opposite conclusion with respect to the robber and
the killer. In short, while we cannot ignore our evaluation of dif-
ferent sorts of criminal behavior in making inferences as to the char-
acters of criminals from the nature of their criminal behavior, neither
can we regard it as conclusive. More than this, we ought not base our
judgment of the character of a criminal upon his criminal conduct
alone, and there is no reason why we should try to do so. The Anglo-
American law of evidence is full of distrust of an inference to habit or
character from a single act. What a single instance of criminal be-
havior has to teach us should be implemented and tested by what can be
discovered of the actor's physical and psychical condition at the time of
his act, of his past, and of the changes wrought in him by the criminal
experience itself. As far as our purposes make it necessary for us to
do so, we shall consider these aspects of the matter in turn.
31 By a man's "passions" we mean the pattern of his sensual desires.

" By "reason" we mean not only (1) the power to abstract ideas from experi-
ence, (2) to relate those ideas in propositions, (3) to employ those propositions in
syllogisms and (4) to distinguish between the true and the false in the realm of
knowledge, but also (5) the capacity to distinguish good and evil in the realm of
action and (6) to command the will i.e. to act in accordance with such discrimina-
tions.
(a) The Nature of the Homicidal Behavior
(1) The Significance of Advertence and Inadvertence

Of primary importance in determining the character of the actor is
the distinction between behavior which is advertently homicidal and
that which is only inadvertently so. The conscious creation of a sub-
stantially unjustifiable degree of homicidal risk indicates that on at
least one occasion the actor has valued some lesser end more highly
than the preservation of human life, that he has not acquired, or has
too easily overcome, that degree of aversion to homicide which is basic
to civilized life.33 But not even that much is indicated by the un-
conscious creation of such a risk. That the actor did not perceive a
danger which other men would have perceived, indicates only that he
lacked knowledge which they have or that he failed to apply his knowl-
edge in practice, that he was thoughtless or inattentive in a situation in
which they would have been circumspect. If his creation of the risk
was due to genuine ignorance, a case which should be rare if the class
of inadvertent criminal homicides is properly defined,34 what is in-
dicated is a defect in character which is intellectual rather than moral.35
We have more reason to be confident of the capacity of men to acquire
the usually simple knowledge which they need in order to recognize
homicidal risks31 than of their capacity to control evil desires and to
acquire right ends as the result of moral education. But if the inad-
vertent creation of the risk of a criminal homicide is due, as it usually
'The significance of this fact as evidence of the actor's character is indefinite;

it varies with a number of factors which we shall later consider.
'4 That is, if the criminality of inadvertently homicidal behavior is so defined
that the homicidal danger of an act is estimated by the kind of knowledge (of the
surrounding circumstances, the condition of the actor and the potentialities of such
an act under such circumstances and conditions) that men in general would have or
could acquire before choosing to act, and if the requisite probability of death esti-
mated in that way is sufficiently high to command general attention. See Wechsler
and Michael, supra note 1, at 734-735, 746-750.
3 Unless, of course, the actor's ignorance on the homicidal occasion was due to
the voluntary impairment of his faculties by drink or drugs, in which event a con-
sideration of the significance of his behavior must begin with the act of getting
drunk or drugged. It will be observed that even if the actor was unaware of the
danger created by the act which immediately caused death, his behavior was not
inadvertently homicidal unless he did not know that the drink or drug would proba-
bly impair his faculties or that it was likely that when his faculties were impaired
he would act as he did or in some other way dangerous to life.
'Unless, of course, the individual suffers from some mental disease or defect
which impairs this capacity, a matter which may be indicated merely by his lack of
the knowledge in question. In that event he is likely to be irresponsible under the
criteria heretofore set forth [see Wechsler and Michael, supra note 1, at 752-757,
esp. n. 1831 but the very condition which renders him irresponsible is likely to
point to the need of incapacitative-reformative treatment. See id. at 759. On the
other hand, if his lack of knowledge is due to extreme youth, he is unlikely to need
treatment of any sort, though parental neglect in permitting the child to engage in
dangerous activity may raise a probleni of domestic care.
A RATIONALE OF THE LAWF OF HOMICIDE II 1275
is, to the actor's failure to make use of his knowledge, to heedlessness

or inattentiveness, the problem becomes more complex. We cannot
avoid asking why the actor did not pay attention when so, much turned
out to be at stake.37 In many cases knowledge of the circumstances of
the homicidal act may enable us to say that the actor's inattentiveness
on the homicidal occasion was fortuitous, that the results of his homi-
cidal behavior were as hateful to him as to his judges, and that if we seek
for the causes of his heedlessness we will probably find them in such tran-
sitory but common conditions as confusion, shock or a fatigue of which he
was unaware. When that is the case we cannot relate the evil of the act
to the actor's desires in any way that bears significantly upon his char-
acter. Whatever his ends, we have no reason to believe that he would
have sought them in the same way had he been aware that his behavior
was homicidal. So far as we know, the preservation of life occupies
a place in his scale of values which is at least close to that which we
think it should have. Not even the best of men are always wholly at-
tentive to the possible consequences of their acts and omissions. This
view of the import of inadvertence gains in persuasiveness the smaller
the risk of which the actor should have been aware and the more un-
expected and distracting the circumstances38 in which he acted. It loses
in persuasiveness the greater the degree and scope of the peril and the
less unusual and diverting the circumstances,39 for it then becomes
' The only case which presents little difficulty is that where the risk of which
the actor was unaware is only slightly in excess of that which he might justifiably
have created. In such cases it is necessarily a close question whether his behavior
should have been held to be criminal at all. Given the inherently vague standard of
criminaliiy in cases of this sort [see Wechsler and Michael, supra note 1, at 742-
750] it is inevitable that many cases will arise in which this question is close. It
should be noted that even though the actor was aware that his act created some risk
the case is nevertheless properly viewed as one of inadvertence if the risk which the
actor thought he was creating was one which he could justifiably create and he was
unaware of the additional risk which rendered the act unjustifiable.
3 When the actor's inattentiveness is due to intense passion or emotion, the
problem cannot be considered without regard to the causes of his passion or emotion.
The inattentiveness of a man who is distracted by intense grief provoked by some
serious loss has a different significance from that of a man who is moved by an ab-
sorbing passion, provoked by some petty agent, for the achievement of some unde-
sirable end.
It is useful to consider in this context the analogous case where the actor is in-
advertent, not in the sense that he is unaware of the homicidal danger created by the
act, but rather in the sense that he mistakenly and unreasonably believes that cir-
cumstances exist which would constitute a justification, e.g. that he is being at-
tacked and that it is necessary for him to kill to save his own life. The same
considerations that lead to the conclusion that unawareness of the danger is, within
the limits above described, of favorable significance in estimating the actor's char-
acter warrant the conclusion that the unreasonable mistake is also of favorable
significance. See Wechsler and Michael, supra note 1, at 726 and note 111. The de-
gree of unreasonableness of the mistake has an import similar to that of the degree
of the homicidal risk. Cf. in this connectioni the discussion of motive, infra p. 1277
et seq.
3 It will be observed that when the risk is very great and the circumstances
common and undiverting, cases of inadvertence are likely to be rare. For the
greater the risk and the more conducive the circumstances to calm, deliberate action,
the more likely is the actor to be aware of the risk.
more and more likely that the actor's inattentiveness was habitual rather
than casual; and habitual inattentiveness in the performance of danger-
ous acts implies for the most part habitual indifference to their con-
sequences.40
The distinction between the advertent and the inadvertent creation
of homic?dal risks is not the only one which is helpful in appraisin,
the actor's character; we can distinguish among consciously created
risks of various sorts and some of these discriminations are also signifi-
cant for that purpose. Viewed in the present context, the behavior of
the man who drives his automobile with knowledge that the brakes are
defective, of the husband who, learning that his wife has betrayed him,
shoots her lover, and of the assassin who kills for pay, is not all of the
same kind or of the same import.
(2) The Significance of the Actor's Intention

If the actor was aware that his act was dangerous to life, he may
or may not have intended to kill, that is, he may or may not have acted
for the sake of causing death. If he intended to kill, he may have de-
sired the fatal result for its own sake, or as a means to more remote
ends, or for both reasons. If he did not intend to kill, he must never-
theless have been acting to attain one or more ends for the sake of which
he was at least not unwilling to create such a risk of death as he be-
lieved his act to involve. Other things being equal, whether or not it
is of favorable significance in estimating his character that he lacked the
intention to kill, depends upon the degree of the homicidal risk which
he consciously created. If he believed a homicide to be inevitable, it
seems clear that the fact that he regarded it as an unavoidable con-
comitant of the attainment of his desires rather than strictly as a means
thereto, is without favorable import. So, too, is the circumstance that
he did not regard death as inevitable, if he believed that it was very
highly probable that his act would result in death as, for example, he
might, if he derailed a passenger train. While he may have entertained
the hope that death would not occur, his hope was a foolish one, as he
himself knew. But if, on the other hand, he believed the homicidal
risk which he was creating to be slight, it is of favorable significance
in judging his character that he did not intend to kill. It is true that
Cf. SALMOND, ON JURISPRUDENCE (8th ed. 1930) 408-413. Salmond argues

that every. case of inadvertent negligence is explicable in terms of some degree of
indifference at some stage of the individual's history prior to the negligent act. Even
if the argument is accepted, it does not follow that the indifference thus indicated is
habitual rather than casual or that even if habitual it is always sufficient in degree
to distinguish the actor's character in a significant way from that of the generality
of men. Cf. GREEN, op. cit. supra note 25, at 197.
the evil of his act is not divorced from his desires, as it may be in the
case of an actor who inadvertently creates a homicidal risk; however
unwilling he might have been to endeavor to cause death, he was ob-
viously not averse to endangering life for the sake of whatever ends his
act was designed to serve. Nevertheless, such a man does not commit
himself to the destruction of life as fully or as genuinely as the man who
acts in order to kill or who believes death to be the inevitable or very
highly probable consequence of his act. By the same token, the less
dangerous to life he believed his act to be, the less- is the depreciation of
the value of human life which his act indicates and, hence, the less grave
the moral weakness which it manifests, even though the defect to which
it points is habitual. We may conclude, therefore, that in estimating the
actor's character it is of favorable import, unless he believed the homi-
cidal risk to be very great, that he did not intend to kill, and, unless he
intended to kill, that he believed death to be a less rather than a more
probable result of his act.4'
(3) The Significance of the Actor's Ends and of the Nature of the
Homicidal Act as a Means
By hypothesis, the ends for which men commit criminal homicides,

whether advertently or inadvertently, intentionally or unintentionally,
do not justify the means which they employ to achieve them.42 Their
ends are nevertheless relevant in determining what their homicidal be-
havior indicates about their characters. The character of men is re-
vealed in part by the ends which they seek, by the desires which they
endeavor to satisfy, as well as by the ways in which they try to satisfy
them. If we attach significance to homicidal behavior as evidence that
4' It should be noted that many cases combine the conscious creation of crimi-
nally high risk and the inadvertent creation of such risk. This is the situation where
the risk of which the actor should have been aware is greater than that of which he
was aware but both are sufficiently high to warrant holding the act criminal.
4 Here, as elsewhere in this discussion [see notes 2, 29, supra] we are assuming
that the behavior content of the law is itself justifiable and, therefore, that the legal
definition of justifiable homicides is ethically sound. See Wechsler and Michael,
supra note 1, at 735-751. In so far as that is not the case, a two-fold problem is
presented: (1) to what extent should a good citizen obey an unjust law [see e.g.
ST. THOMAS AQUINAS, SUMMA THEOLOGICA (1929 ed.) I-II, Q. 96, A. 6; BENTEAM,
THE THEORY OF LEGISLATION (Ogden ed., 1931) 65 n.; PANNOMIAL FRAGMENTS, 3
COLLECTED WORKS (1843 ed.) 219; LASKI, STUDIES IN LAW AND POLITICS (1932)
258 et seq.]; (2) to what extent should officials charged with the determination of
treatment in particular cases endeavor to ameliorate the injustice of an unjust be-
havior rule. Both of these questions are difficult and neither can be answered in the
same way for all circumstances. It is obvious, however, that if an act is objection-
able only in the sense that it is unlawful, it is likely to have a very different
significance in estimating the character of the actor from that which it has if it is
not only unlawful but also unjust without regard to the legal prohibition. Cf.
Wechsler and Michael, supra note 1, at 760, note 203.
the actor is the sort of man who is willing to destroy or endanger human
life in order to satisfy his own desires, we must go further and ask
whether his moving ends on the homicidal occasion were of a sort
which we approve or disapprove, and whether ends of that sort usually
lead to desirable or to undesirable behavior.43 If we attach significance
to homicidal behavior as evidence that the actor values the attain-
ment of lesser ends more highly than the preservation of life, we must
also consider the character of his end on the homicidal occasion in
an effort to discover the extent to which his values are askew. The
disparity between the value of the end that he sought on that oc-
casion and the value of preserving life may be more or less. The
point is obvious if we compare the man who kills a child for the sake
of seeing its helpless suffering and the man who kills his own child to
save it from suffering which he believes to be irremediable or, to take
two more similar cases, the man who kills to make a person who has
insulted him suffer, and the man who kills in the belief that it is the
only way to save himself from slavery or some other ruinous in-
justice. It is true, of course, that the ends for the sake of which men
act, especially their remote ends, are frequently unclear to themselves
and even less clear to others,44 that their ends are often socially in-
different,45 and that to look only to their ends is misleading because
some men pursue such ends by legitimate and others by illegitimate
4 Bentham, defining motive as "the perspective of a pleasure to be procured, or

of a pain to be avoided," insisted that the same motives might lead either to the most
desirable or to the most undesirable acts and that it is therefore error to speak of
motives as good or bad. BENTHAM, THEORY OF LEGISLATION (Ogden ed. 1931)
253 et seq. It is doubtful whether he would have raised the same objection to such
an evaluation of the actor's ends, meaning thereby, as we do in the text, the ex-
ternal situation which he desires to bring about and from which, in Benthamic terms,
he anticipates that he will derive pleasure. Indeed, even if motive is understood in
the first sense, i.e. as the character of the pleasure sought, Bentham conceded that it
was possible to classify motives "by considering their more common tendency to pro-
duce good or bad effects" [id. at 254; cf. 1 LESLIE STEPHEN, THE ENGLISH UTILITA-
RIANS (1902) 255 et seq.] and this is all that we have suggested in the text. On the
important ambiguities in the meaning of the word "motive," see BENTHAM, PRINCI-
PLES OF MORALS AND LEGISLATION C. X, 1 COLLECTED WORKS (1843 ed.) 46 et seq.
'Cf. Bentham's caution [THEORY OF LEGISLATION, supra note 43 at 256]: "It
would often be very difficult to discover the true or dominant motive, when the
action might be equally produced by different motives, or where motives of several
sorts might have co-operated in its production. In the interpretation of these doubt-
ful cases it is necessary to distrust the malignity of the human heart, and that
general disposition to exhibit a brilliant sagacity at the expense of good nature. We
involuntarily deceive even ourselves as to what puts us into action. In relation even
to our own motives we are wilfully blind, and are always ready to break into a pas-
sion against the oculist who desires to remove the cataract of ignorance and prej-
udice." See also SALEILLES, THE INDIVIDUALIZATION OF PUNISHMENT (Mod. Cr.
Sc. ed., 1911) 239 et seq.; 2 STEPHEN, HISTORY OF THE CRIMINAL LAW OF ENGLAND
(1883) 120-121. But cf. 3 id. at 84-87.
45 In the sense that it is neither desirable nor undesirable socially that the end be
achieved.
means.46 But while these considerations indicate the limitations upon the
significance of an actor's ends, as distinguished from other factors, in
estimating his character, they do not establish that their nature is irrele-
vant to that inquiry.
The actor's means have an import analogous to that of his ends.
If his ends are his moving desires, his means indicate what he is will-
ing to sacrifice to the satisfaction of those desires. We have already said
that when death is unintended and believed to be only slightly probable,
the actor is shown to have depreciated the value of preserving life far
less than when death is intended or believed to be highly probable.
Other variations in the character of homicidal behavior have a like
meaning.
(a) The actor may have intended that his act should, or believed
it to be more or less likely that it would, bring death or injury to more
than one person, or cause death in an unusually painful way, or destroy
property as well as life or limb.
(b) His act may have been a more or less necessary means to his
ends. It may have been the only means of accomplishing his purposes,
or there may have been others by which he could have achieved them as
f ully or almost as fully without endangering life or, at least, without
jeopardizing it to the same extent. The end of an actor who kills a
practical joker to save a friend from slight annoyance is laudable, but
it is relatively of such trivial value and the means employed to attain
it so unnecessary that the moral disorder which they reflect is exceed-
ingly profound. The same may be said, although with less force,
of the man who drives his automobile at break-neck speed through
crowded streets to spare his wife the annoyance of his arriving late
for dinner. Cases may be put where some sort of homicidal behavior
is a more suitable means than in those cases, but that actually em-
ployed is unnecessarily dangerous; such is the case of the cruelly
' This is the point suggested by Bentham loc. cit. supra note 43, and elaborated
by Saleilles, loc. cit. supra note 44. The problem may be put by comparing two men
both of whom desire money as a means to providing comfort and adequate medical
attention for their sick wives. One labors night and day to achieve financial suc-
cess and the other kills a relative under whose will he expects to benefit. Since
the ends for the sake of which each man acts are the same, they give no clue to
the reasons why one man follows one course and the other follows the other. On
the other hand, there may be a significant difference in subordinate motivation; the
second man may choose homicidal means because he desires to avoid the kind of
labor which the first is willing to undertake. In other words, a complete analysis
may indicate that there is a difference in motivation which is not apparent on the
surface. But even if this is so, it must be conceded that the end of avoiding arduous
labor is one which may be laudable, which most men seek and which is therefore of
no significance in itself. It is significant only when coupled with the desire to pro-
vide comfort and medical care, the need for money as a means, the efficacy of homi-
cide as a means to obtaining money and an insufficient aversion to causing death.
persecuted man who after long but unsuccessful efforts to avoid per-
secution by other means, sets fire to the house in which his enemy and
the latter's family are asleep. But cases may also be put which, because
of the unavailability of alternative means to the actor's ends, do not
exhibit such wantonness. Such is the case of the persecuted man who,
after having exhausted other remedies, kills his persecutor in a way
which endangers no one else, of the husband who kills his wife to pre-
vent her from betraying him when other means have left her obdurate,
or of the son who drives at an excessive speed to reach the bedside of
a dying mother.
Other things being equal, the more cruel the actor's homicidal
behavior is, the more extensively it imperils life, limb and property, the
more inappropriate any homicide or the particular homicidal behavior
is as a means to the actor's ends, the greater his demoralization is in-
dicated to be. Moreover, an actor's means may have a further although
less direct bearing upon his character; thus the use of a sub-machine
gun as the lethal weapon, participation of a group47 in the homicidal
activities, or some other characteristic symbol may signify professional
criminality.48
(4) The Significance of the Antecedent Circumstances: Provocation

(a) By provocation we mean the power possessed by some kinds
of things and events external to human beings, of arousing in them de-
sires by which they are moved to particular acts.49 We shall refer to
things and events which have that potentiality as provocative circum-
stances; and when we wish to speak of an instance of its actualization,
we shall say that the actor was provoked to a particular act. Viewing
such an act as a change and the actor as the patient of the change, our
present concern is with its proximate external agent, and with the prob-
able influence of such an agent upon other men.
4 Though group activity may imply power which must be dealt with by special
measures and, as an indication of professionality, may bear significantly upon the
characters of the members of the group, there is no escape from the necessity for
the present purpose of separately considering the behavior of each of the members.
For that behavior may range from a word of encouragement of an act likely to result
in homicide to actual authorship of a homicidal act of the most aggravated sort.
There may be wisdom in a rule defining criminality as broadly as does that which
prevails [see Sayre, Criminal Responsibility for the Acts of Another (1930) 43
HARV. L. REV. 689] but there is none in ignoring the significance of differences in
the extent of individual participation in estimating individual character.
Cf. Llewellyn, Introduction to HALL, THEFT, LAW AND SOCIETY (1935).
The word provocation is used ambiguously in legal literature, sometimes to
mean this power, at other times to refer to things and events which possess it, and at
still other times to refer to specific instances of the actualization of the potentiality.
See e.g. MACAULAY, NOTES ON THE INDIAN PENAL CODE (1837) Note M, pp. 107-
109, and the other material cited in Wechsler and Michael, supra note 1, at 717-720,
notes 72-88.
Provocation may be greater or less, but it cannot be measured by

the intensity of the passions aroused in the actor by the provocative
circumstances. It must be estimated by the probability that such circum-
stances would affect most men in like fashion; although the passions
stirred up in the actor were violent, the provocation can be said to be
great only if the provocative circumstances would have aroused in most
men similar desires of comparable intensity. Other things being equal,
the greater the provocation, measured in that way, the more ground
there is for attributing the intensity of the actor's passions and his lack
of self-control on the homicidal occasion to the extraordinary character
of the situation in which he was placed rather than to any extraordinary
deficiency in his own character. While it is true, it is also beside the
point, that most men do not kill on even the gravest provocation; the
point is that the more strongly they would be moved to kill by circum-
stances of the sort which provoked the actor to the homicidal act, and
the more difficulty they would experience in resisting the impulse to
which he yielded, the less does his succumbing serve to differentiate
his character from theirs. But the slighter the provocation, the more
basis there is for ascribing the actor's act to an extraordinary suscepti-
bility to intense passion,50 to an unusual deficiency in those other desires
which counteract in most men the desires which impel them to homicidal
acts, or to an extraordinary weakness of reason51 and consequent in-
5 Cf. SUMMA THEOLOGICA, I-II, Q. 22, A. 3 ad 2: "Intensity of passion depends

not only on the power of the agent, but also on the passibility of the patient: be-
cause things that are disposed to passion, suffer much even from petty agents." A
man may be extraordinarily prone to certain passions or even to certain virtues or
vices naturally, that is, by the constitution of his body or by bodily changes; "that a
man lusts, although he wills not to lust is due to a disposition of the body, whereby
the sensitive appetite is hindered from perfect compliance with the command of
reason" [I-II, Q. 17, A. 7 ad 1]; "some are disposed from their own bodily tempera-
ment to chastity or meekness or the like." I-II, Q. 51, A. 1. Cf. also I-II, Q. 63, A.
1. Or a man may be uncommonly susceptible to sensual desire because he has
habituated himself to indulge his passions rather than to moderate them by his rea-
son. "The adventitious qualities are habits and passions, by virtue of which a man
is inclined to one thing rather than another. And yet even these inclinations are
subject to the judgment of reason, as it is in our power either to acquire them,
whether by causing them or disposing ourselves to them, or to reject them." I, Q.
83, A. 1.
"'Cf. SUMMA THEOLOGICA, I, Q. 81, A. 3; I-II, Q. 9, A. 2; I-II, Q. 10, A. 3;
I-II, Q. 17, A. 7; I-II, Q. 77, AA. 1-2, 7. While reason cannot prevent the move-
ment of the sensitive appetite, which is sensual desire, from occurring, it can drive
the passion away by turning to other thoughts, or subdue it by applying to it certain
universal considerations, or prevent it from having its full effect, since passion can
lead to action only with the consent of reason. But the sensitive appetite can resist
the commands of reason: "We can feel or imagine something to be pleasant which
reason forbids, or something to be unpleasant which reason commands." Passion
can deprive a man of the use of his reason altogether or prevent him from exercis-
ing it freely. Whether in a particular instance of conflict between passion and
reason the former or the latter will prevail, obviously depends upon the intensity of
the passion or the weakness of the reason. The aim of psychoanalytic therapy is
1282 COLUMIBIA LAWY REVIEW
ability to bring such desires into play. Moreover, since the homicidal
act does not always follow closely upon the provocative circumstances
and since the passions which they arouse may in the meantime gain or
lose in intensity, provocation must be estimated as of the time of the
homicidal act and in the light of those additional circumstances which
may have intensified or diminished the actor's passions. For example,
if a substantial interval of time or an apology intervened between insult
and retaliation therefor, these would have to be considered in determin-
ing the extent of the provocation. So, too, the immediate provocative
power of a sudden and severe blow differs from that of such a blow
after the actor's shock and pain have abated, and he has only his recol-
lection of the injury to spur him on.
(b) There is a converse to provocation. There are circumstances

which so far from arousing in most men desires of the sort which move
them to acts destructive of life, arouse in them emotions of love and
pity by which they are moved to protective acts. Consequently, such
conditions as the helplessness of the actor's victim or the dependence of
the latter upon the former, or some similar relationship between them,
nay mark the actor as an unusually heartless or treacherous or ungrate-
ful man. On the other hand, the victim's condition or his relationship
to the actor may itself have been a provocative or otherwise extenuating
circumstance, as in the case of the actor who kills an invalid who is de-
pendent upon him and who has frequently attempted suicide, or who
kills his antagonist in a duel conducted on prearranged and equal terms.
(5) The Significance of Deliberation and Impulse

Whether and to what extent homicidal behavior was preceded by
deliberation is plainly of evidential value in determining what the actor
knew and intended when he acted. The more extensive the deliberation,
the more probable it is that at least the more palpable risks created by
the homicidal act were clearly perceived, and at least its more immediate
consequences intended. From this point of view, however, gradations
in homicidal behavior from the purely impulsive to the completely de-
liberate bear directly upon the question whether the actor created the
homicidal risk inadvertently or advertently and, if advertently, whether
"to cure mental disorder, that is, to reduce the conflict in the psyche between ego
and id; not to destroy the id, but by relieving repression to make a man understand
himself, and through understanding his desires to adjust them to reality, which is
another way of saying, to make a man reasonable." ADLER, WHAT MAN HAS MADE
OF MAN (1937) 119. For the meaning of these psychoanalytic terms, for the con-
tribution of psychoanalysis to psychological knowledge, and for the relationship be-
tween psychoanalysis and traditional or philosophical psychology, see ADLER, Op. Cit.
s.rpra, Lecture Four.
or not he intended to kill, and only indirectly upon his character. The
difficult question is whether the impulsiveness or deliberateness of his
behavior has direct and independent significance in relation to his
character. Assuming that other factors indicative of his character,
such as knowledge, intent and motive are the same, of what additional
importance is it that his act was the product of or was preceded by
more or less deliberation ?52 It may be argued that the more carefully
considered and the less impulsive the act is, the more it indicates basic
perversion of the actor's conceptions of good and evil. But it is surely
not self-evident that the man who acts on wrong principles is a more
dangerous man than one who acts without considering what is good.53
There are, moreover, other objections to this view of the significance
of deliberation. In the first place, it ignores that passion may influence
deliberation as well as lead to action without deliberation, so that de-
liberate as well as impulsive action may be contrary to the actor's real
notions of good and evil.54 In the second place, it does not embrace
either deliberation about means rather than ends or acts which are
preceded by but are not in accord with the results of deliberation. And
yet it is extremely difficult in most cases to discover in what terms the
actor deliberated or what was the relationship between deliberation and
act.55 These objections are not avoided by stating the significance of
52 On the distinction between deliberation and impulse as one primarily of de-

gree, see Wechsler and Michael, supra note 1, at 734, note 139.
5 It will be observed that impulsive behavior is not, like inadvertent behavior,
removed from the actor's desires. It is the product of intense desire which the ac-
tor subjects to no control.
' Cf. SUMMA THEOLOGICA, I-II, Q. 77, A. 2 ad 4: "He that has knowledge in
universal, is hindered, on account of a passion, from reasoning about that universal,
so as to draw the conclusion: but he reasons about another universal proposition sug-
gested by the inclination of the passion, and draws his conclusion accordingly
Hence the Philosopher says (ETHIC. vii. 3) that the syllogism' of the incontinent
man has four propositions, two particular and two universal, of which one is of the
reason, e.g. No fornication is lawful, and the other, of passion, e.g. Pleasure is to
be pursued. Hence passion fetters the reason, and hinders it from arguing and con-
cluding under the first proposition; so that while the passion lasts, the reason argues
and concludes under the second." The reference to the Philosopher is to the ETHICA
NICHOMACHEA of ARISTOTLE.
' Under the Code of the German Republic an effort was made to go into these
subtleties. Cf. Mannheim, Mens Rea in Germait and English Criminal law (1934)
16 JOURN. COMP. LEG. & INT. LAW 82, 101: ". . . Uberlegung . . . according to the
prevailing doctrine and practice, means the careful consideration of the arguments
for and against the act. The prevailing doctrine thus requires an appeal to the will
-'if or not', and not an appeal to the intellect-'how', which latter is concerned
only with the manner of performing the action. . . . Furthermore, the Uberlegung
must be present at the moment of the act; killing which is planned with, but exe-
cuted without, (Uberlegunig is only Totschlag, not Mord. This requirement, as a
matter of course, narrows very considerably the scope of ? 211, safeguarding from
the penalty of death many cases which, from a reasonable standpoint, might deserve
the maximum punishment. To avoid the latter consequence, the Reichsgericht is ac-
customed to emphasize that even a strong mental emotion at the moment of the
action does not necessarily preclude Uberlegung. The most important thing, de-
deliberation in another way. Thus it may be said that reflection prior

to action indicates that the actor lacks the sort of desires that will pre-
vent such an act, since reflection is the opportunity to bring such de-
sires into play, an opportunity which, by hypothesis, is not afforded by
impulsive action; whereas action without reflection does not permit of
that inference because if the actor had deliberated he might not have
acted as he did. But in order to draw from these premises the conclu-
sion that the man who acts deliberately is more dangerous than the
man who acts impulsively, it must be asserted that the probability that
the former's deliberations will result in wrong judgments is greater
than the probability that the latter will not reflect before acting. This
proposition also requires proof.56 The truth is, we think, that deliber-
ation has no independent significance in relation to character and that
the importance usually accorded it properly belongs to other factors
which are its concomitants such, for example, as lapse of time,57 or
to still other factors which it evidences, such as knowledge and intent.
When the matter is viewed in that way, no difficulty is experienced in
dealing with cases in which deliberation itself results in the intensi-
fication of passion, as it may when the enormity of an injury done the
actor or the value of an end to be served by a homicidal act becomes
apparent only after thought.58
(b) The Actor's Physical and Psychical Condition at the Time

of the Act
We have throughout been calling attention to the necessity of view-
ing homicidal behavior in many aspects in order to determine what, if
anything, it reveals with respect to the habitual ordering of the actor's
passions and reason. What we have said must be supplemented by the
clares the Reichsgericht, is 'whether the actor, nevertheless, always exercised con-
trol over his thinking, his volitions and his actions, so that during the act itself he
was not driven solely, or at least not predominantly, by his excitement and senti-
ments, but was able to follow, and did, in fact, follow, reasonable conceptions and
considerations'"
X So, too, does the other premise which might sustain the conclusion under dis-
cussion, namely, the proposition that habitual susceptibility to perverse desires and
inability to deliberate in the face of them detracts less from the individual's poten-
tialities for good conduct than perverse deliberative values habitually held.
5 That lapse of time may operate to reduce provocation has been pointed out
suipra, p. 1282. The confusion between the significance of deliberation and the lapse
of time, suggested in the text, is well illustrated by the reason Bentham gave for
treating premeditation as evidence of "hardened character," one of his justifications
for treating it as an aggravating circumstance: the "longer a man is governed by
hostile feelings upon a given occasion, the stronger proof he gives of perverse anti-
social dispositions." BENTHAM, SPECIMEN OF A PENAL CODE, 1 WORKS (1843 ed.)
164, 167.
5 Consider, for example, the facts of State v. Gounagias, 88 Wash. 304, 153
Pac. 9 (1915).
recognition that excess of passion or defect of reason may be due to

some physical condition such, for example, as pregnancy, glandular
imbalance, or brain lesion. When that is the case, there is some reason
to believe that the ordering of passion and reason reflected in an act,
is no more lasting than the physical condition which produced it. Ac-
cordingly, the question whether the causative condition is remediable or
otherwise transitory, or irremediable and, hence, permanent, is relevant
to an estimate of the actor's potentialities. For even if he must be
regarded as dangerous as long as such a condition continues, the prob-
ability that it can be eradicated and that its eradication will alter his
character is itself one of his potentialities.59 If, on the other hand, we
know that the physical condition responsible for his demoralization is
irremediable, we are justified in inferring not only that his character is
bad but also that it will probably continue so. We may hope that mod-
ern medical research will contribute greatly to our understanding of this
aspect of character by enlarging our knowledge of the relationships
between various conditions of the body and various traits of character
and of the durability of such conditions and, hence, of such traits. At
the same time it is well to point out not only that existing knowledge
of the physical bases of moral defects is woefully limited but also that
the acquisition of additional knowledge of that sort is beset with great
difficulties. Nevertheless, our conception of character must be broad
enough to make a place for such knowledge of that sort as we have or
may obtain. When we turn from an actor's physical to his psychical
condition, the same points can be made. If at the time of the act he
suffered from some well defined mental disorder, whether or not it has
an organic basis, the prognosis of his character is favorable if his dis-
order is impermanent and unfavorable if it is permanent.60 But the
caution we have just voiced because of the inadequacy of knowledge
of the physical causes of disordered passions and defective reason is
equally necessary here. Not only is there relatively little scientific
knowledge of the relationships between psychic disorders and moral
,"'If the transitory physical condition is self-induced, as in the case of intoxica-
tion, a special problem is presented, for it is necessary in that event to consider the
probability that the individual will voluntarily induce the same condition again. Cf.
note 35, supra.
6 That the actor suffers from mental disorder may, of course, be significant for
other reasons besides its bearing upon his character. It may indicate him to be a
member of a non-deterrable class and hence irresponsible, under the criteria of re-
sponsibility previously set forth. See Wechsler and Michael, supra note 1, at 752-
757. Even if the disorder is not so extreme as to have this effect, and even if its
bearing upon character is unfavorable rather than favorable, it may nevertheless be
necessary to ameliorate the severity of treatment as a means to avoiding nullifica-
tion and, especially, to forego the use of the death penalty in such cases in jurisdic-
tions where it is employed in other cases. Cf. Wechsler and Michael, supra note 1,
at 756-7, note 188.
disorders, with which to supplement the judgments of common experi-

ence, but such as there is has limited prognostic value. Much that mas-
querades as knowledge is not; for example, knowledge is not enlarged
by calling one who commits homicidal acts or engages in other sorts of
undesirable behavior a "constitutional psychopathic inferior" or some
other name defined, not in terms of an aetiological theory, but in terms
of the nature of the phenomena for which an explanation is sought.
(c) The Actor's History
If the nature of a homicidal act is significant for the estimation of

character because of what it may indicate about the actor's habits, it is
obvious that the quality of his prior behavior has a like significance.
Habit is the product of many similar acts, not of occasional unique
acts. A single act which brings the actor satisfaction may, of course,
be the beginning of a habit; thus one reason why all criminal behavior
must be a matter of serious concern is that it may lead to the formation
of new and bad habits. But it is easier to prevent habits from de-
veloping than to shake them off after they are formed. That habit may
lead to homicidal behavior is of greater moment than that homicidal
behavior may give rise to fresh and undesirable and vicious habits,
though, as we have said, the latter consideration is not unimportant.
The actor's prior behavior is obviously a clue to his habits. If it
includes instances of conduct which reveal an ordering of his passions
and reason similar to that exemplified by the homicidal act, it strength-
ens the inference that the act is indicative of habitual defect of char-
acter. The more numerous such instances are, the longer the period
of their occurrence, and the more extensive the defect which they in-
dicate, the stronger the inference becomes. Whatever the moral defect
indicated by the homicidal act, whether indifference to the consequences
of behavior, or an extraordinarily passionate nature, or an unusual
lack of self-control, whether inclination towards the wrong ends or an
inability properly to evaluate competing ends, the more his past behavior
exhibits the same defect, the more probable it becomes that the defect
in the actor's character is a permanent one but the less likely this becomes
the more his previous conduct depicts him as a man heedful of the
probable consequences of his acts, or of mild passions, or of strong rea-
son, or of right ends. If criminological research warrants any general
conclusions at all, it confirms the ancient wisdom that men usually
drift and drift only gradually into highly undesirable behavior, and
that a grave criminal act is usually preceded by many although less
serious instances of anti-social conduct, criminal and non-criminal.6'

At the same time it must be remembered that this commonplace also
affords a test of the truthfulness of those who report that an actor's past
has been a virtuous one; the more extensive the defect exhibited by
his homicidal act the less likely it is that his prior life has been up-
right. However, if the homicidal act is really a first offense, the graver
the defect which it indicates the more we are justified in believing that
it marks a break with the past, the initial stage in the development of
new and vicious habits. Thus there is an inevitable interaction be-
tween what we know of the present and what we can learn of the past.
The latter explains the former, but the former tests the accuracy of
the latter; both are useful in making predictions with respect to the
future.
In this context we must consider the significance of the actor's age.
The judgment of the centuries is that the passions of youth are more
violent than those of age and that wisdom and self-control are the
fruits of experience. But it is common knowledge that the habits of
the child and the adolescent are less stable than those of the adult and
that they are therefore more easily educable morally; it is also common
knowledge that as human beings grow older their rebelliousness against
authoritative norms usually declines. Consequently, the more youth-
ful an offender is the less fixed his bad habits are likely to be and
the less, therefore, they curtail his potentialities for good.62 Moreover,
the younger he is at the time of his offense the less numerous and
the less serious his prior delinquencies are likely to have been. Ac-
cordingly, the less basis there is for inferring that the defect in charac-
ter indicated by his act is habitual.G3 On the other hand, it is worth
1 See e.g. HEALY AND BRONNER, DELINQUENTS AND CRIMINALS: THEIR MAK-
ING AND UNMAKING (1926); SHELDON AND ELEANOR T. GLUECK, 500 CRIMINAL
CAREERS (1930); ONE THOUSAND JUVENILE DELINQUENTS (1934) ; FIvE HUNDRED
DELINQUENT WOMEN (1934); SUTHERLAND, PRINCIPLES OF CRIMINOLOGY (1934).
See ADLER, ART AND PRUDENCE (1937) 177-178. The statement in the text is
not inconsistent with the findings of the Gluecks that the post-treatment records of
the juveniles studied in ONE THOUSAND JUVENILE DELINQUENTS, supra note 61,
were on the whole much worse than those of the adults studied in 500 CRIMINAL
CAREERS, supra note 61. In the first place, the methods of treatment employed in
dealing with the two groups varied widely, and, in the second place, most of the
juvenile group were still quite young at the time of the follow-up study; of 905 in-
dividuals only 248 were between 21 and 24 at the end of the five year post-treat-
ment period. Id. at 153. Indeed, in a recent extension of their study of the behavior
of the adults studied in 500 CRIMINAL CAREERS to the second five year period fol-
lowing the termination of treatment, the conclusion was reached that "the peak age
of reformation" for the individuals involved "is the ten year span between 21 and
30 years." LATER CRIMINAL CAREERS (1937) 105-106.
a Of course, we recognize that it is impossible to specify any chronological age
as that at which all persons cease to be morally immature and become morally ma-
ture, for there is no such age. We are also aware that it is exceedingly difficult to
specify such an age for most persons or the average person; in the present state of
observing that the significance of the behavior and habits of the young
is often underestimated.64 A youth devoted to the wrong ends is less
likely to blossom into a virtuous maturity than a youth devoted to the
right ones.65 There is insight in the well-known warning: "Let the
young man beware what he seeks in his youth, for he shall have it in
his age."
We must also consider the importance of the environments in
which an actor was reared and lives. We know well enough that
poverty, broken and disordered homes, evil companions, inadequate
education and recreation are, to borrow a phrase from Professor
Sheldon Glueck, "bad weapons with which to fight the battle of life
in a complex society."66 They are, in short, among the basic contrib-
uting causes of bad habits. That the actor's bad habits are attributable
in part to such handicaps does not, however, make them any better than
they are. Moreover, consideration of the significance of environmental
factors should proceed with awareness that a disadvantageous environ-
ment may accompany wealth as well as poverty, and that undue re-
knowledge only the roughest approximations are possible. However, it is interesting

to observe that the tendency in most if not all legal systems during the last century
has been to increase the age at which "infants" become responsible for criminal
behavior, probably as the result of an increase in knowledge of the psychology of
childhood and adolescence. There is a similar tendency today to extend the period
during which "juveniles" will be subject to the jurisdiction of the juvenile court
rather than the criminal court. Cf. infra note 65.
' Indeed, the valiant contemporary effort to make something of the juvenile
courts rests to a large extent upon a wise determination not to underestimate its
significance.
' It should be noted that youth, like mental disorder or defect, may be signifi-
cant for other reasons besides its bearing upon character. It may indicate irre-
sponsibility and, even if it does not, there may be an especial danger of nullification
if extreme measures are used. But more than this, the weight of humanitarian con-
siderations is inevitably and, as it seems to us, properly strong in the case of of-
fenders who have not attained maturity. Cf. Michael, Book Review (1935) 44
YALE L. J. 908; Wechsler and Michael, supra note 1, at 753, note 178. Thus in
England during the forty years prior to THE REPORT OF THE SELECT COMMITTEE ON
CAPITAL PUNISHMENT (1930) no person under 18 had been executed, although the
punishment of death had been abolished by law only for persons under 16 and this
by The Children Act of 1908, 8 EDW. VII, c. 67, ?? 103, 131. Moreover, of 57
persons under 21 years sentenced to death for murder in England and Wales be-
tween 1901 and 1929 only 19 were executed, a smaller proportion than that of execu-
tions to sentences generally. REPORT p. 44; cf. Wechsler and Michael, supra note 1,
at 706-7, notes 19, 20. The Select Committee recommended that if capital punish-
ment were retained, the legal age be fixed at 21. REPORT P. 98. By 22 and 23 GEO. 5,
c. 46, ? 19(2) (1932) the age was fixed at eighteen. The Committee found a some-
what similar attitude to prevail, though with less reason, towards the execution of
women. From 1880-1929, 148 death sentences were respited and only 18 executed.
Wechsler and Michael, supra note 1, at 706, note 19. Moreover, for the same period,
in the case of murder, "those found insane on arraignment or guilty but insane, were
for men, 26.43 per cent. and for women 46.74 per cent. of persons for trial." RE-
PORT p. 43. See also 21 and 22 GEO. 5, c. 12, ? 53 (1931) providing for life imprison-
ment for offences punishable by death, if the trial jury finds that the defendant is'
pregnant.
' CRIME AND JUSTICE (1936) 182.
finement may produce repressions that make life far more difficult than
it is made by a youth spent in the streets. Nevertheless, in comparing
the characters of two persons who have committed homicidal acts, it is
meaningful that the background of one was filled with great hardship
and difficulties while that of the other was free from such obstacles.
In the case of the first, there is basis for the hope that if life is made
easier for him his habits will improve; in the case of the second, there
is no basis for that hope. Other things being equal, the potentialities
of the former are better than those of the latter.67
(d) The Effect of the Homticidal Experience Upon the

Actor's Character
It is obvious enough that killing a fellow human being can be an

educational experience. It is not so clear when such an experience is
likely to lead the heedless actor to be attentive, the reckless actor to be
cautious, the passionate actor to tame his passions, the actor whose ends
are wrong to acquire a new scheme of values, and when it is likely to
produce a more complete deterioration of the actor's character. However
difficult it may be to discover all the conditions under which the one
result or the other is the more probable, it may not be so difficult to
form judgments in specific cases regarding the effect of the homicidal
experience upon the actor's character. The mother who kills her child
to save it from a life of poverty and degradation may almost im-
mediately discover that the evaluation of the relative good and evil which
led her to destroy her child brings her only abiding regret. The hot-
tempered man who permits his passions to overpower him at an in-
sulting word may be moved to moderate them by the pain of a tortured
conscience. The factors which we have already discussed will assist
us to some extent in making such judgments but we shall be aided to
a greater extent by close scrutiny of the actor after the event.
As we finish our discussion of the characters of those who com-
mit criminal homicides, we should like to anticipate an objection which
may be made to the importance which we have attributed to the nature
of their criminal acts in the determination of their characters. It may
be objected that much less significance has been ascribed to that factor
by the studies which have been made of the subsequent careers of per-
' The same point cannot be made with regard to those individual handicaps
which are inherited, such for example, as physical defect. The question is whether
the defect is remediable, not whether it is attributable to voluntary action on the
part of the individual. For the same reason, the point made in the text about en-
vironment is without practical significance in estimating the individual's character
if nothing can be done to change his environment for the better. But cf. p. 1298
infra.
1290 COLUMIBIA LAW REVIEW
sons who have committed crimes of various sorts, and especially of the
successes and failures of those who have been paroled.68 We would
regard the objection as untenable. In so far as such studies have at-
tempted to correlate the nature of criminal acts with the actors' later
careers, criminal conduct has been grouped in classes far too broad and
indefinite for the correlation to have any significance. An empirical
test of the views which we have advanced would be salutary but would
require an analysis of criminal acts far more subtle than that made by
these studies.69 Moreover, we have not attempted to determine the
relative significance of the homicidal act and of other relevant factors.70
Our effort has rather been to enumerate all the major factors which are
relevant and to state the theory upon which their relevancy depends.
1II THE RELATIVE STRENGTH OF THE DESIRES WHICH MOTIVATE

HoMICIDAL BEHAVIOR
It will not be denied that men are moved to some sorts of acts by
desires which are stronger than those which move them to acts of other
sorts, and to the same sort of act by desires that vary in intensity ac-
cording as the circumstances are of one kind or another. Hence, it has
See e.g. SHELDON AND E. T. GLUECK, op. cit., supra notes 61, 62; VOLD, PRE-
DICTION AND PAROLE (1931); Tibbitts, Success or Failure on Parole Caii Be Pre-
dicted (1931) 22 JOURN. CRIM. L. AND CRIM. 11-50.
Cf. HEALY AND BRONNER, op. cit. supra note 61, at 164-5: . . . with all
statistics concerning delinquency there is great difficulty both in classifying and
after classifications are made, in interpreting the significance of misconduct which
goes by the same name. There may be tremendous variations in the seriousness,
motivation and other background features which are necessary foundations for
sound judgment concerning the individual case. . . If we could, we should like to
separate out those instances where the delinquency seemed to show criminalistic
ideation or intent, as distinguished for instance, from the cases where the de-
linquency was much more in the nature of mischief or giving way to impulse or
crowd suggestion. But since this is at present impracticable, we make our group-
ings according to ordinary classifications."
Whether more subtle studies can be made on the basis of trial records and
similar sources of information is a difficult question. The practical obstacles may,
in the present state of such records, be insuperable.
7 Much contemporary American literature, starting with the Positivist premise
that the character of the offender should be the primary consideration in the deter-
mination of treatment [see note 7, supra], apparently proceeds to the strange con-
clusion that the character of the criminal act and traditional discriminations among
the mental states of actors are matters of relatively slight significance. But even the
Italian Positivists regard the offender's criminal behavior (including his state of
mind) as highly important evidence of his greater or lesser dangerousness. See e.g.
RELAZIONE SUL PROGRErrO PRELIMINAIRE DI CODICE PENALE ITALIANO (Libro I)
(Polyglotte ed. 1921) 375, 379 et seq. 422 et seq., prepared under Ferri's leadership.
It was thought, for example, that it was "above all . . . necessary to confirm the
traditional distinction between malicious offences and offences by imprudence." Id.
at 397. For discussion of the treatment provisions of the Ferri project, see S.
Glueck, Principles of a Rational Penal Code (1928) 41 HARV. L. REV. 453, 467,
et seq.: COLLIN, ENRICO FERRI ET L'AVANT-PROJET DE CODE PE'NAL ITALIEN DE
1921 (Bruxelles, 1925).
been argued, the severity of deterrent penalties ought to vary with

differences in the intensity of the desires which they must overcome.7'
But whether or not a man will commit a crime does not depend solely
upon the strength of the desires which move him to commit it; it also
depends upon the existence and strength of competing desires which
might move him not to do so, and upon the capacity of his reason to
bring those other desires into play. Therefore, the principle under
consideration cannot be applied without reference to variations in char-
acter ;72 the penalties designed to control relatively good men on the
more or less rare occasions when they are moved to evil deeds need not
be as vigorous as those directed at bad men who are habitually moved to
such acts, even though the desires which move the former are as strong
as or even stronger than those which move the latter. Thus it is idle
to argue, without qualification, that the greater the temptation the more
severe a deterrent penalty ought to be; that a severer penalty is needed
to deter destitute men who are moved to steal by hunger than men who
have all that is required to satisfy their hunger but greedily crave more;
that it is more difficult to deter men who are moved to kill by a cruel
attack than men who are moved to kill without any provocation at all.
Even if it is assumed that the desires which move the former are
stronger than those which move the latter, it does not follow that more
severe penalties are needed to deter them. Such a difference is com-
pensated for by the fact that the temptations of the former are con-
sistent with better character than the temptations of the latter. As we
have said, the better men are, the less difficult it is to deter them from
committing crimes. The threat of punishment need only fortify the
hungry man's desire to obtain food in honest ways and help the pro-
voked man to take account of his own desire not to kill. The same
point can be made with respect to inadvertence: in the case of heedless
men who would not knowingly create homicidal risks, the threat need
"Cf. PALEY, PRINCIPLES OF MORAL AND POLITICAL PHILOSOPHY ( 11th Ameri-

can ed. 1825) 370-373; see also Maitland, The Relation of Punishmnent to Tempta-
tion (1880) 5 MIND 259.
" Cf. BENTHAM, PRINCIPLES OF MORALS AND LEGISLATION C. XVI, viii, 1
WORKS (1843 ed.) 87: "The strength of the temptation, caeteris paribus, is as the
profit of the offence; the quantum of the punishment must rise with the strength of
the temptation. This there is no disputing. True it is, that the stronger the tempta-
tion, the less conclusive is the indication which the act of delinquency affords of
the depravity of the offender's disposition. So far, then, as the absence of any ag-
gravation, arising from extraordinary depravity of disposition, may operate, or at
the utmost, so far as the presence of a ground of extenuation, resulting from the in-
nocence or beneficence of the offender's disposition, can operate, the strength of the
temptation may operate in abatement of the demand for punishment. But it can
never operate so far as to indicate the propriety of making the punishment ineffec-
tual, which it is sure to be when brought below the level of the apparent profit of
the offense."
1292 COLUMBIA LAWY REVIEW
only stimulate them to be mindful of what they do; their own desires
will then stop them from endangering the lives of others. But in addi-
tion to these considerations it is necessary to question the assumption
that the impulse of the hungry man to steal is stronger than that of
the glutton, and that the desire to kill of the man who has been pro-
voked is stronger than that of the man who has not been provoked.
The strength of -a desire is the degree of compulsion with which it
moves him who desires towards the object of desire. In order that
there should be a yielding to temptation in any of the cases we have put,
the desire aroused must be at least strong enough to overcome all op-
position. While there may be greater resistance to temptation in one
case than another, it is difficult to measure it and, in any case, the
strength of a desire is not attested solely by the resistance which it
overcomes; it is also attested by the extent to which it occupies the field
of the actor's affections. The desire of the addict for his drug is no
less strong because he has surrendered himself completely to his vice.
What we can say, however, is that more men are likely to experi-
ence some desires more intensely than other desires, and to experience
them more intensely under some than under other conditions; that, for
example, more men are likely to desire food and shelter strongly than
they are to desire luxury strongly, and to desire to kill when they have
been attacked than when they have not. So, too, other things being equal,
the impulse to steal and kill is likely to be more wvidely felt with great
intensity when food is scarce, hunger widespread and civil strife ramp-
ant, than in times of prosperity and peace.73 Rape is a larger problem
in time of war if provision is not made to satisfy the sexual desires of
soldiers than if it is. Such consideration may justify a more severe
scheme of penalties and fewer distinctions among acts and persons
under some conditions than under others; they supply the logic of
martial law. But they do not warrant the judgment that men who steal
for luxury are the prey of weaker desires than men who steal to satisfy
their hunger or that men who kill upon great provocation are moved by
stronger desires than men who kill when the provocation is slight; the
former are fewer in number than the latter and that is all.
We can also say that under given conditions some acts are likely to
be viewed by more men than other acts as necessary or attractive means
of satisfying desires which most men have. This judgment is of the
greatest importance in distinguishing simple from difficult problems of
social regulation at particular times and places. It was primarily the
absence of other ways in which to attain the pleasures of alcoholic stimu-
7 Factors such as these may also operate to augment the undesirability of the
behavior and thus strengthen the case for severity on that ground. See pp. 1270-1272
supra. They may also operate as unfavorable indicia of the character of the actor.
Compare, for example, the man who is hungry and steals food in normal times and
the hungry man who steals food in a time of famine or siege when food is being
rationed and everyone is hungry.
lation that made it impossible to enforce the prohibition law; the prohibi-
tion of absinthe alone encounters no such widespread opposition. Regula-
tions of industry that make only slight inroads upon profits are easier
to enforce than those which industrialists regard as entirely incompatible
with profitable operation. It would be much more difficult to get men to
cease using automobiles altogether than it is to get them to drive on the
right side of the road. It may well be less difficult to deter most men
from homicidal conduct that jeopardizes their own lives as well as the
lives of others,74 than from homicidal acts which endanger only the lives
of others.
The bearing of this discussion upon the principle of adjusting the
severity of penalties to the intensity of the desires with which they must
compete, is clear. While it is true that men are not moved to kill or to
create homicidal risks knowingly except by strong desires, it is ex-
tremely difficult, if not impossible, to order the intensity of the desires
which lead them to homicidal behavior. There is nothing in the princi-
ple under consideration incompatible with the principle, which we have
previously considered, of adjusting the severity of penalties to the char-
acters of those who commit criminal homicides. On the contrary, the
first of these principles must be applied, in so far as it is capable of ap-
plication at all, in the light of the second, as we have shown. But our
discussion of the first principle has resulted in two additional insights:
(1) Considerations which have no bearing on the character of the actor,
such as that some kinds of homicidal behavior may endanger his own
life as well as the lives of others, may reduce the attractiveness of such
behavior to potential actors.75 (2) The existence of extraordinary cir-
cumstances may provoke large numbers of persons to homicidal acts
and thus justify a higher level of severity of penalties and fewer dis-
criminations among those to whom they are applied than would be justi-
fiable in more placid times.76
' In other words, the fact that homicidal behavior of a particular sort endan-
gers the life of the actor as well as the lives of others, as in the case of reckless
driving, indicates that, quite apart from the goodness of their characters, potential
actors are likely to desire to avoid the behavior for other reasons than their fear
of a threatened penalty. Accordingly, as in the case of potential actors of good
character, the threat of the penalty need only move them to take account of their own
desire to avoid the act. This consideration is, however, of far less significance
when death is intended than when it is not. The realization that to attempt to kill
one's enemy by exploding a stick of dynamite in his face is to employ a suicidal
means is likely to lead the actor merely to employ some non-suicidal means. The
realization that reckless driving endangers the life of the driver as well as the lives
of others is not likely to lead the potential reckless driver to employ some other
homicidal means.
7 For the limitations on the significance of this consideration see note 74 supra.
78 To the extent that this principle is acted upon, actors are likelv to be pun-
ished more severely than their characters would warrant in the absence of the spe-
cial exigency. But to the extent that discriminations are made in the severer system,
the character of the actor retains its significance in the ordering of severity. See
also note 73 supra.
One further and analogous point remains to be made. When we

were discussing the problem of distinguishing between criminal and
non-criminal homicides, we said that the mere fact that particular be-
havior has resulted in death is insufficient by itself to establish either
that conduct of that sort is undesirable or that persons who engage in
it are more dangerous than other men.77 We then reserved the ques-
tion whether, if homicidal behavior is undesirable and criminal, there
is any justification for treating a person who engages in it more severely
when it actually results in death or has some comparably undesirable
consequence than when it does not.78 It seems clear that there is, if
7 See Wechsler and Michael, supia note 1, at 733.

78 See Wechsler and Michael, supra note 1, at 724, note 100, 729, note 124, 733,
note 136, 745, note 161, 750, note 174. We are of course assuming in the text that
the behavior which does not result in death is of the same sort in all significant re-
spects as that which does, and, therefore, that if death was intended in the one case
it was also intended in the other and that in each case the actor had done the last
act which he thought necessary to accomplish his purpose under the circumstances
as he knew or believed them to be. This assumption forces us to consider whether
it is ever a significant difference between two instances of behavior that one was
incapable of causing death in the particular circumstances in which it actually oc-
curred, as opposed to the circumstances as the actor knew or believed them to be
(which is obviously the case whenever death does not result), whereas the other
was capable of causing death in the circumstances as they actually existed (which
is obviously the case whenever death does result). 'From the standpoint of the
desirability of preventing behavior which is dangerous to life, it seems clear that
the difference is not a significant one unless the circumstances which make it im-
possible that the behavior should have a fatal result are so frequently associated
with the circumstances known to the actor or believed by him to exist, as to render
such behavior entirely harmless or so slightly dangerous to life that it can be dis-
regarded. By this criterion, it is of no consequence that it sometimes happens, as the
event shows, that when men point pistols which they believe to be loaded at what
they believe to be other men and pull the triggers, the guns are unloaded or poorly
aimed or that the objects at which they are aimed are stumps and not men. When-
ever such circumstances exist, it is impossible for such behavior to have a fatal
result, but they do not exist often enough to reduce the desirability of attempting to
prevent men from engaging in such behavior. Similarly, the fact that particular
instances of driving automobiles through city streets at tremendous speed cannot
result in death because it so happens that pedestrians and other automobiles are so
located that they cannot be struck, does not make it any the less desirable to en-
deavor to prevent such behavior: pedestrians and other cars are not usually so
fortunately situated. If, on the other hand, given the circumstances known or be-
lieved to exist and those which ought to be known,' behavior can never result in
death, there is no point in attempting to prevent it in order to preserve life; and
that is so even though persons may engage in such behavior with the intention to
kill. Thus there is no danger to life from efforts to kill by the administration of
wholly harmless substances, such as salt, or by the incantation of magical formulae.
However, it may nevertheless be desirable to make such behavior criminal, when
done with the intention of killing, on the ground that it indicates that persons who
engage in it are sufficiently dangerous to justify subjecting them to incapacitative-
reformative treatment. These simple points are frequently overlooked in adjudica-
tions and discussions of the effect of "impossibility" upon the criminality of be-
havior under the prevailing law of "attempts." See on the general problem, Sayre.
Criminal Attempts (1928) 41 HARV. L. REv. 821, 837 et seq.; Strahorn, The Effect
of Impossibility on Criminal Attemfpts (1930) 78 U. OF PA. L. REV. 926; Arnold,
Criminal Attemtpts-The Rise and Fall of an Abstraction (1930) 40 YALE L. J. 53,
68 el seq.; HOLMES, THE COMMON LAW (1881) 65 et seq.; 2 STEPHEN, HISTORY OF
THE CRIMINAL LAW OF ENGLAND (1883) 225. Professor Arnold has helped to
clarify the subject by his insistence that the criminality of behavior as an attempt
cannot be determined without reference to the character of what is attempted [cf.
HOLMES, op. cit. supra, 68], though we do not agree with the view which he ap-
deterrence is the dominant end of treatment.79 In the first place,

popular indignation is inevitably aroused by the actual occurrence of a
wrong, with the result that death and other very severe penalties are
more likely to be tolerated when homicidal behavior has resulted fatally
than when it has not.80 In the second place, the deterrent efficacy of a
body of criminal law is not greatly lessened by making the discrimina-
tion. Men who may act in order to kill will hope for and contemplate
success rather than failure. Consequently, if the prospect of being
punished severely if they succeed will not deter them from acting, the
prospect of being punished just as severely if they fail is unlikely to
do so.8' The point also holds to some extent in the case of those who
parently holds that this insight puts a stop to analysis of the problem of drawing th
necessary lines.
"It is commonly said that this discrimination is consistent only with the re-
tributive theory of punishment. See e.g., Strahorn, op. cit. supra note 78; Gause-
witz, Considerations Basic to a New Penal Code (1936) 11 Wis. L. REV. 346, 356,
377, 378. It seems clear, however, that by "retribution" these writers have in mind a
theory of retaliation-that the measure of punitive treatment should be the harm
done by the offender-not a theory that the measure should be, as Kant and Hegel
argued, the offender's moral guilt. See MICHAEL AND ADLER, CRIME, LAW AND
SOCIAL SCIENCE (1933) 347 et seq. For on the latter view it is difficult to see how a
discrimination based on the harm actually done, as opposed to that intended, can be
justified. Ou the other hand, we think the discussion in the text will make clear
that the occurrence vel non of the consequence which it is the object of the law to
prevent is a factor of genuine importance in ordering the severity of treatment
which has for its dominant objective the deterrence of potential offenders.
' It may be true that the basis of the greater popular indignation when the
result occurs than when it does not, the two instances of behavior being in all
significant respects the same, is popular acceptance of the propriety of retaliation for
the harm done. The psychology of the matter may, on the other hand, be more
complicated than that. But even if it is not, the legislator or judge who takes ac-
count of the state of public sentiment as a means to avoiding nullification does not
thereby embrace the popular theory. Cf. Wechsler, Book Review (1937) 37 COLUM-
BIA LAW REV. 687, 690, note 13.
81 This is a point which is overlooked in the literature of the subject, even by
writers who assume that the primary purpose of the law is deterrence. Cf. HOLMES,
op. cit. sutpra note 78. It must be conceded, however, that the threat of as severe a
penalty in the event of failure as in the event of success may increase the deterrent
efficacy of the law whenever the probability of apprehension and conviction is
greater in the event of failure than in the event of success. This may often be the
case in attempted homicide because of the greater probability of the identification of
the actor if the victim' lives; it may even more clearly be the case in attempted
treason where success means a change in the legal order. The latter point is summed
up nicely in a verse quoted by STEPHEN, op. cit. supra note 78, at 241:
"Treason can never prosper-what's the reason?
"If it does prosper, none dare call it treason."
As we have previously intimated [szupra note 78], a consideration of the prob-
lems presented when the actor intends the undesirable consequence but has not done
the last act which he contemplates doing in order to bring that consequence about, is
beyond the scope of this paper. It is worth observing, however, that a lighter penalty
conditioned upon the actor's abandonment of the enterprise is not without value as
an incentive to abandonment by future actors. Cf. for an instance of a common
provision of European codes, art. 19 of the SOVIET CODE: "If a crime has not keen
carried to a conclusion because the person who intended to commit it voluntarily re-
fused to commit it, the court shall fix the appropriate measure of social defense in
respect of such acts as were in fact done by the person who attempted to commit
the crime or made preparations for it." On the difficulties involved in determining
when desistance should be deemed to be "voluntary" in this sense, see RELAZIONE
may consciously create unjustifiable risks of death, although they do not

intend to kill.82 Some such persons may act on the supposition that the
result will be fortunate rather than unfortunate; if they genuinely ex-
pect that death will not occur, they may well be deterred from acting if
they know that they will be punished as severely if it does not as if it
it does. But others will expect death to occur while hoping that it will
not; the deterrent influence of the law upon them is not likely to be
diminished because they know that they will be punished less rather
than equally severely if the result of their conduct is one which they
believe to be quite improbable.83 The point also holds, and without
qualification, for those who may create homicidal risks inadvertently.
Here, as we have said,84 the object of the threat of punishment can
only be to stimulate such persons to be careful of what they do; they
are persons who, so far as we know, would not knowingly create such
SUL PROGRETTO PRELIMINAIRE Di CODICE PENALE ITALIANO, supra note 70, 406:
". . . the desistance must be inspired by a desire for repentance or at least not be
imposed by outer circumstances which run foul of the criminal proposal (e.g. crying
out or resistance by the assaulted, the coming up of people or of the police, lack of
proper tools, or of favouring circumstances, etc.)." Cf. arts. 15 and 16 of the Ferri
Project, id. at 533. Bentham would have thought this conception too narrow. See
PRINCIPLES OF PENAL LAW, Part III, c. XV, 1 WORKS (1843 ed.) 561. On the
issue whether abandonment should render the behavior non-criminal, an important
consideration is the necessity of empowering the police to take preventive action in
time rather than to require them to wait until the final act is about to begin in order
to justify an arrest. Cf. People v. Rizzo, 246 N. Y. 334, 158 N. E. 888 (1927) ; see
Arnold, supra note 78, at 72 et seq.
' In the absence of an intention to produce the undesirable consequence, be-
havior does not usually constitute an attempt to commit the substantive crime, i.e.
the crime defined in terms of the occurrence of that consequence. This is what is
meant by the wholly misleading statement that a "specific intent" is usually a re-
quisite element in the definition of a criminal attempt. See the articles cited supra
note 78. But cf. HOLMES, op. cit. supra note 78, at 65-66; Tulin, The Role of Pen-
alties in Criminal Law (1928) 37 YALE L. J. 1048. As Holmes points out, there is a
basis for this requirement as a condition of criminality in cases in which the last
act has not been done and what has been done is equivocal except for the intent-
though even here it is often wise for a legislator to disregard intent and sweep
all instances of the behavior into the net, as, for example, by making it a crime to
carry firearms regardless of the purpose for which they are carried. Cf. BENTHAM,
PRINCIPLES OF PENAL LAW, Part IV, c. XV, 1 WORKS (1843 ed.) 559-561. But
if the last act has been done and the behavior is such that it would be held to be
criminal because of the risk which it created, if the undesirable result had oc-
curred, there is no justification for holding it not to be criminal merely because
that result did not occur, though the problem with regard to treatment dis-
cussed in the text remains. And for the most part modern law holds such be-
havior criminal regardless of its results, by such provisions, for example, as that
condemning reckless driving. Cf. Wechsler and Michael, supra note 1, at 729.
The question whether such behavior should be designated an "attempt" is purely
verbal, if the behavior is criminal whatever it is called and the treatment ap-
plicable the same as that applicable to attempts; to the extent that it is purely
verbal etymological considerations may be given full sway. Cf. HOLMES, op. cit.
supra. But if, in a particular jurisdiction, the legislature has not seen the point,
there is an obvious reason for the courts to expand the definition of a criminal
attempt so as to make such behavior criminal or to render applicable treatment
which would not otherwise be applicable. The question whether or not this should be
done is not verbal at all. Cf. Tulin, loc. cit. supra.
83 Cf. Wechsler and Michael, supra note 1, at 750-751, n. 174.
"Id. at 751.
risks. It is hardly likely that the legal threat will be a much more
efficacious deterrent if persons of that sort know that they will be pun-
ished as severely if their acts do not have fatal results as if they do.
In the third place, the occurrence of a death is some assurance that
the charge of homicidal behavior is not a sham. However, what-
ever may be said for discriminations of this sort,85 it must also
be said that since they are based upon factors which are unrelated
either to the undesirability of the act or to the character of the actor,
they make for inequality in the treatment of offenders; and inequality
of this sort appears to be justifiable only so long as treatment involves a
severity which is unnecessary as a means to incapacitation and re-
formation and is therefore an evil inflicted upon the offender solely as a
means to the deterrence of potential offenders. The inequality may,
in other words, be preferable to an unnecessary sacrifice of actual
offenders for the sake of deterrence.86 But if that is the justification
for tolerating the inequality,87 it follows that a mitigation of penalties
Such considerations may be helpful in deciding close questions of causality
in prosecutions for criminal homicides. See Wechsler and Michal, supra note 1, at
723-724. Death has in fact followed upon the actor's act in all such cases and, as-
suming that it would not have occurred but for the act, the legal problem as tradi-
tionally formulated is whether the act was the "cause" of the death; upon the an-
swer to this question depends not the actor's criminality but the severity with
which he will be treated. If it is held, that death was, legally the "result" of the
act he will be said to have committed a criminal homicide and will be subject to
the more severe penalties imposed upon those who commit criminal homicides; if
it is held that death was not legally the "result" of the act he will be adjudged
guilty of an attempt to commit a homicide or some other lesser crime and will be
subject to the less severe penalties imposed upon those who commit such crimes.
However formulated, the problem of causality is therefore the problem of dis-
criminating among persons whose homicidal behavior has in fact been attended
by death, in order to determine which of them should be treated more and which
of them less severely by reference to significant differences in the relationships be-
tween their conduct and death. Since in all such cases death has occurred, the
danger of nullification if the more severe treatment is employed is likely to be
slight if death was intended or was a highly probable result of the act and if it
would not have occurred but for the act. Hence, if these conditions are met, one of
the reasons for employing less rather than more severe treatment is inapplicable.
If they are not satisfied, as they are not in some of the felony-murder and mis-
demeanor-manslaughter cases [see Wechsler and Michael, supra note 1, at 713-717,
722-723], this reason is applicable to such cases and is one of the justifications for
employing the requirement that the actor's act be the "proximate cause" of the
death in order to limit the scope of those rules. Cf. note 106, infra; Wechsler and
Michael, supra note 1, at 745, n. 161. But even if the conditions above stated are
met and there is therefore no danger of nullification, it is unlikely, for the reasons
stated in the text, greatly to weaken the deterrent efficacy of the law, to hold that the
act is not the "cause" of death in cases in which what occurred was far removed
from what was intended or what was highly probable. Therefore, in answering the
question of causality the court may properly take into account the character of the
behavior and the character of the actor. Indeed, there is really nothing else to guide
the court's judgment. See in connection with this problem Note (1933) 31 MICH.
L. REV. 659.
' This may be regarded as an application of the Benthamic principle of the
desirability of "frugality" as a "property to be wished for in a mode of punish-
ment." See PRINCIPLES OF MORALS AND LEGISLATION, C. XVII, xi, xii, 1 WORKS
(1843 ed.) 95.
8 It is interesting to note that popular tolerance of this inequality is implicit in
the popular approval of a more severe penalty when death has occurred than when
on the ground that death has not occurred should not be carried to the
point where it disserves other ends of treatment, such as incapacita-
tion,88 unless it is necessary to go that far in order to avoid nullification.
IV. CAUSAL RELATIONSHIP BETWEEN THE CRIMINAL ACT AND SOME

INJUSTICE TO THE ACTOR
We have previously observed that the fact that a criminal act is

likely to alleviate some injustice to the actor or to others ought to be
taken into account in estimating the relative undesirability of his be-
havior; and that if his criminal act can be regarded as the result of
some injustice, that fact ought to be given favorable significance in
judging his character. We come now to an additional and independent
reason for taking account of causal relationships between injustices
and criminality, namely, that to do so increases popular awareness of
an unjust state of affairs and thus may aid in the struggle against it. The
point has been made in mandatory terms by T. H. Green :89
"It is not the business of the state to protect one order of rights specially,
but all rights equally. It ought not therefore to protect a certain order of
rights by associating special terror with the violation of them, when the special
temptation to their violation itself implies a violation of right in the person of
those who are so tempted, as in the case when a general danger to property
arises from the fact that many people are on the edge of starvation. The at-
tempt to do so is at once ineffectual and diverts attention from the true way of
protecting the endangered right, which is to prevent people from falling into a
state of starvation. In any tolerably organized society, the condition of a man,
ordinarily honest and industrious, who is driven to theft by hunger, will be so
abnormal that very little terror needs to be associated with the crime as so com-
mitted in order to maintain the sanctity of property in the general imagination.
Suppose again a man killed in a quarrel arising out of his having tampered with
the fidelity of his neighbor's wife. In such a case 'extenuating circumstances'
may fairly be pleaded against the infliction of the extremist penalty, because
the extremist terror does not need to be associated with homicide, as committed
under such conditions, in order to further the general protection of human life,
and because the attempt so to associate it would tend, so far as successful, to
weaken the general sense of the wrong-the breach of family right-involved
in the act which, in the case supposed, provokes the homicide."
it has not. It would be informative to know to what extent this tolerance is due to
a failure to perceive that in the cases under discussion behavior which has not re-
sulted in death differs from that which has, in an accidental rather than an essential
aspect, to what extent the popular demand for equality is merely subordinated to
a popular sentiment in favor of retaliation [see note 80, supra] and, finally, to what
extent there is some popular recognition of the Benthamic point, sutpra note 86.
S8 In view of the point made in the text about the significance of deterrence as
an objective of treatment in the case where death is intended but does not result,
there is especial merit in the suggestion of Professor Gausewitz, supra note 79, at
377, that criminal attempts be defined in terms of what behavior signifies with
respect to the dangerousness of the actor rather than in terms of the dangerousness
of the act, though the dangerousness of the act is obviously not without importance
in that connection. Cf. Rex v. Barker, N. Z. L. R. 865 (1924); RELAZIONE etc.,
supra note 81, at 404-408; note 70, supra.
89 Op. cit. sutpra note 25, at 193-194.
Formulated in terms of justice, Green stated90 the principle as

follows:
"The justice of the punishment depends on the justice of the general sys-
tem of rights; not merely on the propriety with reference to social well-being
of maintaining this or that particular right which the crime punished violates,
but on the question whether the social organization in which a criminal has lived
and acted is one that has given him a fair chance of not being a criminal."
This principle is inconsistent with those which we have already

considered at only one point. In the course of our discussion of the cor-
relation of the severity of penalties with the strength of motivating de-
sires, we suggested that the widespread existence of such provocative
circumstances as dire poverty and civil commotion, may warrant a
higher level of severity in penalties and fewer discriminations among
persons in their application than can be justified in a period of pros-
perity and tranquillity.91 The widespread existence of such provoca-
tive conditions may be symptomatic of basic injustice in the organiza-
tion of the state and, when that is so, there is no escape from the
inconsistency. But when that is so, the ultimate question is whether the
state is worth preserving or whether revolution and a new order are
not to be preferred. If the latter is the case, the rigorous punishment
of crimes provoked by the unjust state of affairs merely magnifies its
injustices.92 If the former is the case, more severe penalties may be re-
quired in order to keep matters from getting worse and thus to make the
transition to a more just order possible. Even in that situation, how-
ever, the principle under consideration has validity; it indicates that a
general increase in the severity of penalties, as by the declaration of
martial law, ought to be the resort only, and only the last resort, of a
political society which is doing what it can to become just. If it
tolerates injustices so widespread and grievous that it can maintain
itself only by the use of greater and greater force, it does not deserve
to go on.93
9Id., at 190.
91 See p. 1293 supra.
9 In this situation it cannot be argued that the "greater injury [basic in-
justice in the organization of the state] becomes a justification for the smaller
injury" [punishment], as Bentham put it in pointing out that where "a particular
class of the people is oppressed by the sovereign power, prudence requires that
they should be forbidden to carry arms." THEORY OF LEGISLATION (Ogden ed., 1931)
364-5.
93There is therefore a genuine sense in which a society can justify its use of
the rigorous methods of the criminal law only to the extent that it makes as full
use as possible of less rigorous methods of preventing crime, including those in-
herent in the promotion of economic justice, education and the like, ends which are
desirable in themselves as well as desirable as a means to the prevention of crime.
Cf. Wechsler, A Caveat on Crime Control (1937) 27 JOURN. CRIM. L. AND CRIM.
629.
The major points of the foregoing discussion can be roughly sum-

marized in the following table:
Factors of Major Significance in Ordering the Severity of Punitive

Treatment of Persons Who Have Engaged in Criminally
Homicidal Behavior
Favorable to Mitigation Unfavorable to Mitigation
I. RELATIVE UNDESIRABILITY OF THE BEHAVIOR
Slight probability that behavior will High probability that behavior will cause
cause death. death.
Lives of many persons endangered.
Other interests endangered in addition
to the preservation of life.
Consent of the person killed. Unusually painful death threatened.
Behavior infrequent. Behavior frequent.
Behavior serves some desirable ends. Behavior serves no desirable ends.
II THE CHARACTER OF INDIVIDUAL OFFENDERS
Creation of risk inadvertent. Unjustifiable risk consciously created.
Death not intended and risk low. Death intended or degree of risk known
to be high.
Good motives, i.e., desirable ends. Bad motives, i.e., undesirable ends.
Means unnecessarily dangerous, cruel or
indicative of professionality.
Great provocation. Slight provocation.
Behavior attributable to physical condi- Behavior attributable to physical or psy-
tion or well defined psychical disorder chical condition which is permanent.
which is temporary or remediable.
Past life indicative of good habits. Past life indicative of bad habits, espe-
cially criminal habits.
Youth, especially if disadvantaged. Maturity.
Sensitive response to homicidal experi- Insensitive response to homicidal experi-
ence. ence.
III RELATIVE STRENGTH OF THE MOTIVATING DESIRE
Creation of risk inadvertent. Widespread conditions of provocation
may warrant general heightening of
severity and fewer distinctions among
persons.
Death not intended and homicidal means
involving danger to the actor as well
as to others.
IV. FACTORS SIGNIFICANT FOR OTHER REASONS'
No undesirable result in the particular Undesirable result in the particular case.
case; of greater importance when
death is intended or risk created in-
advertently than when death is not
intended but risk created consciously.
Behavior attributable to some injustice
to the actor as an external cause.
94 Two subordinate points should be noted:
(1) Variations in individual sensibility [cf. note 23 supra] may be due to
other reasons than character, e.g. physical weakness. A year in prison may
mean death to a consumptive and leave the health of normal men unimpaired.
Hence such variations must be taken into account. See BENTHAM, THE
THEORY OF LEGISLATION (Ogden ed., 1931) 44 et seq.
(2) Administrative ends may be achieved by variations in treatment, e.g.
a promise of leniency may be effective to obtain testimony otherwise unobtain-
able and necessary in order to obtain convictions in other cases or to expedite a
plea of guilty and thus reduce time, uncertainty and expense. There is no more
difficult problem in the ordering of treatment than that of determining what
weight to give to such administrative ends, but the matter cannot be considered
intelligently without a full analysis of the problems of administration. Cf. J.
HALL, THEFT, LAW AND SOCIETY (1935) 113 et seq.
In what has been written we have not addressed ourselves specifi-

cally to four questions of the greatest importance: (1) what weight
should be given to the various aggravating and extenuating factors we
have enumerated; (2) how many such discriminations should be made
in a given system of criminal law at a given time; (3) what should be
the general range of severity; (4) what sort of agency should be en-
trusted with the task of making the judgments and discriminations that
must be made in disposing of particular cases.
(1) It is impossible in the present state of knowledge to determine
with any precision what weight should be given the various aggravating
and extenuating circumstances, either absolutely or relatively. Some
of them are significant for more than one reason,95 and they may be
entitled to greater weight than those which are significant for a single
reason. Again, the various factors, aggravating and extenuating, can
be combined in so many different ways that it is impossible to anticipate
how they will be combined in particular cases. And yet the weight
to be given any factor may depend upon how it is associated with
other factors; what is needed is no mere addition and subtraction of
factors but the determination of the import of various combinations of
circumstances. Consequently, in order that even the greatest wisdom
may achieve even an approximately satisfactory result, judgments must
be based upon a complete analysis of the particular case, an analysis
that will take into account the presence or absence of each relevant
factor. Complete administrative freedom to make this analysis may be
undesirable,96 but short of that, approximations will inevitably be less
accurate than they need be.
One additional problem, which may be posed by an example, must
be considered. A man inadvertently creates a risk which although only
slightly in excess of that which he might lawfully have created, is suffi-
ciently great to make his behavior criminal. On these facts alone, the
case is clearly one for mitigation, as we have shown: his behavior is
the least undesirable sort of homicidal behavior; his act does not indi-
cate that he desired to or would knowingly create a homicidal risk; on
the contrary, so far as it indicates, the preservation of human life oc-
cupies a place in his scale of values close to that which we think it
should have. But suppose that an investigation of the actor's back-
ground indicates that he is a notorious criminal; that all sorts of heinous
crimes can be attributed to his activities; that his past behavior indicates
that he is willing to create any risks whatever to serve his mercenary
a Such, for example, as inadvertence as opposed to advertence or intention, great

as opposed to slight risk, good as opposed to bad ends.
9 Cf. p. 1268 supra, p. 1308 et seq. infra.
1302 COLUMBIA LAWV REVIEW
ends; that his scale of values is as bad as it could well be. Does the
case for mitigation vanish when these facts are disclosed? It does, when
tested by the considerations heretofore adduced. The greatest terrors
are required to restrain men such as he; they are exceedingly dangerous
men and the men most likely to be thoroughly incapable of leading a
good life and incorrigible. But the consideration of equality may never-
theless lead a legal system to stay its hand. In the case supposed, the
inadvertent homicide does not itself indicate how bad the actor's char-
acter is or, indeed, that it is very bad at all; if he is subjected to rigorous
treatment, it will be because of the nature of his previous life and
activities rather than the nature of the homicide and what the homi-
cide indicates about his character. Hence, if other men who have en-
gaged in similar activities are subjected to no treatment or to less
rigorous treatment, a discrimination is made on a ground which is un-
related to the actor's crime and its implications with respect to his char-
acter. In other words, unless a general commitment procedure is es-
tablished for the incapacitation of all dangerous men,97 considerations
of equality may well be thought to require that an actor's history and
background be taken into account only when and so far as it is explana-
tory of the particular criminal act on which the right to subject him to
any treatment is legally based ;98 such is usually but not always the
case.99 If a general commitment procedure is not established, the reason
is likely to be that judgments of the sort we are supposing, based on past
life alone, are not regarded as sufficiently trustworthy to justify the
Cf. Wechsler and Michael, supra note 1, at 759, n. 196.

98 It is true that equality is not the only value involved, that the incapacitation
of a dangerous individual is a competing value which may be thought to be of
greater significance. In balancing these values the degree of dangerousness of the
individual and the availability of other means to achieving incapacitation, such as
convicting him of more serious crimes, are obviously relevant considerations. It
may have been wise to subordinate equality in dealing with Al Capone and still be
unwise to do so in dealing with less dangerous and less elusive men. It may be wise
to draw the line at a given number of prior convictions and, if such convictions
have occurred, to forego an inquiry into the relationship between the new conviction
and the old. For a provocative discussion of the problem, see Arnold, Law En-
forcement (1932) 42 YALE L. J. 1, 7 et seq. Professor Arnold's discussion ap-
parently denies that the problem has the genuine ethical dimension we think it
has, a denial which we also think he might withdraw were he called upon to re-
solve the issue of policy involved.
""For the most part the actor's history operates merely as evidence that the
disorder of reason or passion reflected in the act is habitual or sporadic. Thus, in
a case of inadvertent negligence, a record of convictions of similar negligent acts
in the past would point to habitual indifference and justify greater severity without
regard to the problem raised in the text. See p. 1286 supra. That problem arises
only when treatment is based wholly on the actor's background, and that can be
said to be the case only in so far as it is based upon vicious habits revealed by past
life and not confirmed by the behavior of which the actor has been convicted. In
that case, it will be observed, the new criminal act is not incompatible with the
possibility that the habits revealed by the actor's past have been reformed.
danger that such a procedure will be abused.'00 If that is the reason, it

applies equally whether or not an additional criminal act has been com-
mitted unless the actor's most recent crime and his prior activities are
so related that each of them confirms judgments about his character
which are based upon the other. Finally, if the actor's past life is of
the sort supposed, it ought to be possible to prosecute and convict him
for his prior crimes which, by hypothesis, are more genuinely indicative
of the nature of his personality than the inadvertent homicide which
brought him into court.'0l
(2) The question how many discriminations among offenders
should be made in the application of penalties,'02 calls for a very difficult
100 Cf. Wechsler and Michael, supra note 1, at 759, n. 196, 731-733, nn. 128-133.
Moreover, fewer procedural safeguards usually surround the proof of past behavio
for purposes of sentence thar, the proof of the behavior constituting the crime for
which the defendant is on trial. Cf. L. Hall, Reduction of Criminal Sentenzces otn
Appeal (1937) 37 COLUMBIA LAW REV. 762, 777-782; see RoMILLY, op. cit. supra
note 11, at 118-137. This objection can, perhaps, be met by a more elaborate
procedure for proof of the actor's past.
101 Cf. Wechsler and Michael, supra note 1, at 759, n. 196. Of course, in so far
as the past behavior consists of crimes of which the actor has previously been con-
victed, this point has no application.
'0 It will be useful in this context to recall the discriminations actually re-
flected in Anglo-American law and the factors upon which they depend. See
Wechsler and Michael, supra note 1, at 701-729. The following tabular summary
of the law of England and of New York may be helpful. For the sake of simplicity
we eliminate the case where death has not occurred and the criteria of responsibility.
Moreover, the terms used are necessarily vague and must be read in the light of
the earlier discussion.
England
The significance of the common law distinction between murder and manslaughter is to
discriminate between those persons who shall, in the discretion of the Home Secretary, be
executed or imprisoned for life, which in practice means for 15-20 years [see Wechsler and
Michael, supra note 1, at 706, n. 19], and those persons who shall, in the discretion of the
judge, be subjected to treatment which may range from discharge to penal servitude for
life (15-20 years). Hence, the bases of the distinction between murder and manslaughter
may be viewed as factors having this practical effect.
Death or 15-20 Years in Discretion of Zero-15-20 Years in Discretion of
Home Secretary Judge
(1) Intention to kill. (1) Adequate provocation: classes of events
that may be held adequate rigorously
(2) Intention to injure seriously. limited by case-law but fairly indefinite
on some points, such as how speedily the
(3) Advertent creation of sufficiently high homicide must follow the provoking event.
risk: the precise degree of risk is inde-
terminate and therefore discretionary (2) Under 18 years of age.
with judge and jury.
(3) Mother "who causes the death of her new
(4) Intention to commit some other felony: born child but at the time of the act or
coupled perhaps with the requirement omission has not fully recovered from the
that the act be sufficiently dangerous to effect of giving birth to such child, and
life, and perhaps, also with the require- by reason thereof the balance of her mind
ment that the actor be aware of the was then disturbed."
danger.
On the factors which determine the Home Secretary's choice, see note 116 infra. We have
no data on the factors which determine the choice of contemporary judges upon conviction
of manslaughter. It should be observed that the vagueness of the discrimination between
criminal and non-criminal homicide [see Wechsler anid Michael, supra note 1, at 717-7271
as well as between murder and manslaughter operates to confer on the jury considerable
freedom of choice among complete discharge (non-criminal), zero-15-20 years in the dis-
cretion of the judge (manslaughter) and death or 15-20 years in the discretion of the Home
Secretary (murder). In addition, the discretion conferred by a plea of irresponsibility by
reason of insanity and the extra-legal power to nullify must both be kept in mind. Cf.
note 65. supra.
judgment about which we can say little except that it depends upon a
number of variables. There is much variation in the moral insights of
peoples and, hence, in the number of such discriminations that popular
opinion requires and can understand at given times and places; unin-
telligible discriminations have the semblance of mere inequality. There
can also be much diversity in the position of deterrence among the ends
New York
The New York distinctions are more complex than the English and have a greater variety
of effects. Thus the effect of the legislative definition of murder in the first and second
degrees is to determine those persons who shall, in the discretion of the governor and, in
one case (felony-murder), in the discretion of the jury and judge or governor, be executed
or imprisoned for life and those who shall be imprisoned for twenty years-life in the dis-
cretion of the Board of Parole. The effect of the legislative distinction between murder
in either degree and manslaughter in the first degree is to determine those who shall be
treated in one of the foregoing ways and those who shall, in the discretion of the judge, be
subjected to treatment which may range from discharge to imprisonment for twenty years.
The second degree manslaughter category distinguishes those who shall be treated in one of
the foregoing ways and those who shall, in the discretion of the judge, be subjected to
treatment which may range from discharge to imprisonment for fifteen years. The fore-
going figures as to the length of imprisonment are, in most cases, subject to sizeable re-
ductions for good behavior [see N. Y. CORRECTION LAW ? 230 et seq.]; and, except where the
minimum is life imprisonment, the minima are subject to radical increase in the event of
previous convictions of felony. Thus if the offender has previously been convicted of one
or two felonies he "must be sentenced to imprisonment for an indeterminate term the
minimum of which shall not be less than the longest term prescribed upon a first conviction
and the maximum of which shall be twice such term" [N. Y. PENAL LAW ? 1941].
Death or Life in Discretion of Death or Life in Discretion of Jury and Judge

Governor or Governor
(1) Deliberate and premeditated design to (1) Persons engaged in commission of or at-
kill. tempt to commit an independent felony
other than arson in the first degree.
(2) Advertent creation of sufficiently high
risk of death to more than one person:
precise degree of risk is indeterminate
and therefore discretionary with judge
and jury.
(3) Person engaged in committing the crime

of arson in first degree (PENAL LAW ? 221).
Twenty years-Life in Discretion of Board of Zero-Twenty Years in Discretion of Court

Parole [see N. Y. 0ORRECTION LAW ? 210 (1) Deceased an unborn quick child.
et seq.]. (2) No intention to kill and either
(1) Intention to kill. (a) Person committing or attempting to
commit a misdemeanor affecting per-
son or property: the meaning of the
latter qualification is wholly unclear.
(b) Providing abortifacients wherebv
death of another or of unborn quick
child results.
(c) Homicidal act in heat of passion with
a dangerous weapon or cruel and un-
usual means.
Zero-Fifteen Years in Discretion of Court

(1) All other criminal homicides. [But see N. Y. PENAL LAW ?? 1053-a, 1053-b; cf. Wechsler
and Michael, supra note 1, at 723, note 94.]
We have no data as to the factors which determine the choices of the governor, the court or
the Board of Parole. Nor have we any data as to the factors which determine jury choices
within the range of their recently granted discretion in felony-murder cases or the discre-
tion inherent in the vagueness of the legislative criteria (most importantly, since the modi-
fication of the felony-murder rule, in the definition of deliberation and premeditation; see
Wechsler and Michael, supra note 1, at 707-709).
It will be instructive to compare with these discriminations and the ordering of determi-
native factors which they include the progressively wider range of factors included, for
example in INDIAN PENAL CODE ?? 299-304a [cf. WALSH, CRIME IN INDIA (1930) 29-30]; FRENCH
CODS art. 295 et seq.; SPANISH CODE (1928) arts. 515-524, 64, 69; ITALIAN PENAL CODE (1930)
arts. 576, 577, 61-63; SOVIET CODE (1932) arts. 47, 48, 51, 136-141.
of treatment; it can dominate the ends of incapacitation and reformation

or be subordinated to them to varying degrees.'03 Hence, there can be
much variety in the number of discriminations that must be made in
order to attain the objectives of a given system of criminal law at a given
time ;104 if deterrence alone is considered, the only limitation upon a
Draconian policy is the danger of nullification.105 Moreover, a body of
criminal law can be more or less severe either as a whole or in its various
parts; the more severe it is, the greater the pressure to multiply discrim-
inations is likely to be. Finally, the nature and number of the methods
employed in the treatment of offenders and the commensurability of
different methods of treatment can vary widely. If the only mode of
treatment employed is execution, as it might be when an army is on the
march in time of war, so that the only alternatives in dealing with of-
fenders are to put them to death or to do nothing, fewer discriminations
need be made than in a system in which the modes of treatment range
from the psychiatric clinic through all the manifold forms of imprison-
ment to the gallows. There is, however, one thing which can be said
with certainty about any body of criminal law, whatever its characteris-
tics: the discriminations which it makes ought to be well adapted to
their purposes. If they are less well adapted than others which could
be made for the same purposes, it is defective in one of its essential
parts.'06 But it is more difficult to criticize any system as imperfect
103 This aspect of the matter is discussed, infra, p. 1313 et seq. ; see also pp.
1265-8, 1297-8, 1298-9 and notes 60, 65, supra.
104 Cf. the discussion of the significance of widespread circumstances of provo-
cation, supra, p. 1292 et seq.
105 See p. 1267 et seq., supra.
108 Considered in these terms, it seems quite clear that the most debatable aspects
of the legislative ordering of treatment factors in Anglo-American law are (1) the
felony-murder rule; (2) the denial of other than evidentiary importance to motive
(except on the issue of justification, e.g. self-defense) ; (3) the narrow conception
of the provocation adequate to reduce murder to manslaughter; (4) the use in
such a jurisdiction as New York of the factor of deliberation and premeditation
as a basis for discriminating among intentional homicides. It will be observed
that much of the content of the felony-murder rule would be retained by a provision
attributing basic importance to motive. Cf. the special provision attributing ag-
gravating importance to criminal motive in the ITALIAN CODE, arts. 576 (1), 61(2):
"Having committed the offence in order to commit or conceal another offence, or
to obtain or secure for one's self or others the product or the benefit or the price
of or impunity from another offence"; see also FRENCH CODE, art. 304; SPANISH
CODE, art. 519(3); LIVINGSTON, A CODE OF CRIMES AND PUNISHMENTS, art. 540.
Such a provision eliminates only the objectionable features of the felony-murder
rule, namely, its inclusion of accidental homicide. See Wechsler and Michael, supra
note 1, at 713-717, 745 n. 161; note 85 supra. It will also be observed that if
importance were attributed to motive it would be possible to consider not only that
the actor deliberated of doubtful import in itself [see p. 1282 et seq. supra], but also
the more important question of what he deliberated about. Indeed, as deliberation
and premeditation are interpreted in New York, the requirement has no genuine con-
tent. See Wech'sler and Michael, supra note 1, at 707-709.
when the only basis of criticism is that the number of discriminations

which it makes might be increased by further and more subtle discrim-
inations subordinate to those which are made.107
(3) Thus far we have called attention to the necessity of ordering
the severity of punitive treatment and have considered the criteria by
which it should be ordered. We must now turn to the vital problem of
what the maximum of severity and of leniency ought to be. It is at once
evident that these extremes cannot be definitely fixed, once and for all,
apud omnes gentes, et omni tenpore; for it is a matter of more or less.
But for the United States here and now the practicable alternatives, as
far as maximum severity is concerned, are death, life imprisonment, or
some shorter term of imprisonment. With respect to the minimum of
severity, the question is whether imprisonment for a substantial term
should be imposed upon all persons who commit criminal homicides and
other crimes of comparable gravity, or whether release on probation, a
fine or even a reprimand should be enough in the case of the least dan-
gerous and most promising of such persons. The major criteria for re-
solving these issues are implicit in our discussion of the necessity for and
the desirability of mitigation. If the death penalty is commonly regarded
with greater dread than even life imprisonment, as we think it usually
is ;108 if criminal homicides are disturbingly frequent; if the attempt to
apply the death penalty will not lead to nullification; and if it can be
applied without exciting too much public hysteria, without brutalizing
the population and without destroying too many lives, then there is a
strong case for employing it in the most aggravated cases for deterrent
107We do not imply, however, that existing law may not be open to broad
criticism on this ground as well.
108 Cf. Alexander Paterson's opinion expressed in his testimony before the
Select Committee on Capital Punishment, MINUTES OF EVIDENCE, 484:
"The question of deterrence has of necessity loomed rather prominently in the eye
of the Committee, though the effect of a single provision of the law upon the mind of
millions is an incalculable factor. The matter may be briefly summarized in this
fashion: Murderers may be roughly grouped for this purpose into two groups-(a) those
who have already committed crimes, and (b) those whose first offence against the law
is that of murder.
"Of the former class, we who are in daily contact with professional criminals, can
safely say that with them the dread of the gallows is a strong deterrent. They have
tasted prison then lost the fear of it. They may have misused their lives but they are
loth to lose them. So far as they have an ordered scale of values, it is reflected in
their current slang. In order to add emphasis to a promise or a threat, an expression
of hatred or defiance, a man will say, 'I'll swing for it.' This is the superlative, for
he is risking the greatest of all hazards. It would bc a very mild expletive, were he
to crown his dictum with such a phrase as 'I'll do a stretch for him.' The burglar is
tempted to shoot the policeman or civilian who surprises him in order to remove the
evidence of his identity. If upon conviction for such murder he is only to receive a
sentence of imprisonment, a little longer than that which he will infallibly receive if
he leaves alive the main evidence of his guilt, he will be the more likely to shoot than
he is to-day.
"With the latter class, no one can speak with the same assurance as to the deterrent
power of the scaffold. The men whose first offence is murder are not a distinct class.
Any man is a potential murderer. The hundred murderers of this class are as typical of
England as any hundred men who cross Trafalgar Square this dinner hour. They are so
dissimilar and so ordinary that nothing with any certainty can be predicted of them all."
purposes, although from other points of view its use may be objection-
able.'09 But if these conditions do not exist, if, on the contrary, the op-
posite conditions exist, it would seem wise at least to experiment with a
less severe penalty than death.1"0 To the extent that imprisonment is
employed for terms less than life, it is obviously desirable that severity
be attained by protracting the period of imprisonment rather than by
cruel or exceptionally arduous conditions of incarceration; to release
men unfit for a non-criminal life, embittered and determined to exact
their revenge, may produce as much crime as such harshness prevents. A
prison program must be reformative in purpose even if the require-
ments of deterrence demand that men be detained after they could
safely be released and that less be done to reform them than could be
done."ll
The problem of minimum severity or maximum leniency can be
considered in very similar terms. So long as deterrence is rigidly ad-
herred to as the dominant end of treatment, the major considerations
are, on the one hand, how severe can we be in the most favorable cases
without risking nullification by the refusal of administrators to convict
because they regard the penalty as too severe and, on the other hand, how
lenient can we be in such cases without risking nullification by the resort
to self-help by those who have been injured and their sympathizers or by
their refusal to assist in prosecution because they regard the penalty as
too lenient. These are difficult judgments to make a priori; the only
prudent course is to attempt to form them by trial and error experimen-
tation. And the problem becomes even more complicated if the rigid
priority of deterrence over the other ends of treatment is relaxed. For
it is precisely in the cases which are the most favorable when judged by
the criteria which we have discussed above, that is, the cases in which
1See REPORT OF THE SELECT COMMITTEE ON CAPITAL PUNISHMENT (1930)

17-18, 47-50; cf. CALVERT, CAPITAL PUNISHMENT IN THE TWENTIETH CENTURY
(4th ed. 1930) ; HENRY ROMILLY, THE PUNISHMENT OF DEATH (1886). The
utter irreparability of the penalty has sufficed to condemn it in the judgment of
many persons. It is certain that few men would be content with Paley's consolation
that "he who falls by a mistaken sentence may be considered as falling for his
country; whilst he suffers under the operation of those rules by the general effect
and tendency of which the welfare of the community is maintained and upheld."
Op. cit. supra note 15, at 390.
10 The major recommendation of the Select Committee was "the Abolition of
the Death Penalty for an experimental period of five years in cases tried by Civil
Courts in time of peace." For an account of the effort of the six Conservative
members of the Committee to sabotage the report by withdrawing from the Com-
mittee, see CALVERT, THE DEATH PENALTY ENQUIRY (1931) v-xii.
111 Cf. Bates, Protection As A Penal Policy, PROC. ATT'Y GENERAL'S CON-
FERENCE ON CRIME (1934) 276, 278 et seq. If the matter is viewed in this way it is
hardly necessary to point out the merit of the institution of parole, even in a system
in which, in determining the length of sentence, deterrence is the dominant ob-
jective.
there is the least ground for believing that the offenders are dangerous
and in need of either incapacitative or reformative treatment,-it is
precisely in such cases, we say, that imprisonment will make it most
difficult for offenders to rebuild their lives and that the results of not
doing all that can be done to help them do so will be the most tragic.
Hence, there is much to be said for subordinating the requirements of
deterrence in such cases to those of reformation, as is the common con-
temporary practice in dealing with juveniles. This is a problem which
we shall consider later.112 It may be pointed out here, however, that
deterrence has not in fact been subordinated to incapacitation and ref-
ormation in a system in which the least severe penalty imposed upon
persons convicted of criminal homicide is imprisonment for a term as
long as five years.113 As prisons are now operated and as human be-
ings are constituted, such treatment is indefensible as a means to ref-
ormation at least in cases where, by hypothesis, offenders are little or no
more dangerous than any man selected from the population at random.
(4) To what extent the task of making judgments of the sorts we
have been considering should be undertaken by the legislature or left
to judge, jury or some other administrative agency is an open question
and a difficult one. By limiting administrative discretion statutory rules
provide a check on administrative abuse; to the extent that they succeed
in avoiding nullification, they promote equality of administration; and
they sometimes have results, such as the use of the death penalty, which
administrators would be reluctant to bring about on their own responsi-
bility. Moreover, so long as punishment is severe, the fact that it is
prescribed by statute serves to fortify that striking correlation be-
tween crime and penalty which is of importance for deterrence."4 But
untrammeled administrative judgments may take account of more of
the relevant factors, are informed by knowledge of the particular case,
are easier to revise, and do not require the drafting of general rules
that are exceedingly difficult to formulate, as the preceding discussion
has amply revealed.15. Legislative judgments articulate the determina-
112 See p. 1318 et seq., infra.

"1 For the most part, contemporary statutes prescribe only maximum terms
of imprisonment for cases of manslaughter. See Wechsler and Michael, supra
note 1, at 718, n. 76. When that is the case, a fixed term or a minimum is set by the
judge, possibly by the jury, in particular cases. On the extent to which the states
have adopted indeterminate sentence laws, see Note (1937) 50 HARV. L. REV. 677.
114 On the other hand, in so far as statutory penalties are lenient, they have
precisely the opposite effect by assuring potential offenders that nothing very serious
will happen to them if they are convicted. In that situation, statutory penalties
operate, as von Liszt pointed out, as the magna carta of the professional criminal.
115 The difficulty is well illustrated by the efforts made in England from 1866 to
1886 to reach a satisfactory legislative distinction between murder cases that should
be capital and those that should not be capital. See REPORT OF THE SELECT COM-
tive factors; administrative judgments are likely to keep them con-

cealed.116 The obvious compromise is, perhaps, that which is reflected
MITTEE ON CAPITAL PUNISHMENT (1930) 38 et seq. When Sir William Harcourt

"set to work, he thought there would be little difficulty in considering definitions;
but after his various labours and consultations he gave up the attempt." Id., at 40
Cf. Lord Darling, testifying before the Select Committee. MINUTES OF EvIDENCE
109 et seq. He plainly thought the task impossible and upon being pressed disposed
of the matter by saying "I dare say this Committee could do it, but I could not."
Id., at 119. On the other hand, "Sir Herbert Samuel and Lord Brentford both said
that the difficulties were not insuperable; and Lord Buckmaster declared himself
in favour of grading whether the capital penalty were retained or not." REPORT
42-43; cf. 3 STEPHEN, HISTORY OF THE CRIMINAL LAW OF ENGLAND (1883) 80
et seq. reproducing and discussing the proposal of the Criminal Code Bill Commis-
sion of 1878.
116 The Select Committee made extensive efforts to ascertain from various
witnesses with experience in the Home Office the criteria by which Home Secre-
taries decided to grant or deny a reprieve in a particular case of murder. The gen-
eral tenor of the evidence was to the effect that no such criteria could be stated
but that the Home Secretary does not act arbitrarily, that he invariably consults
the trial judge [REPORT 45], that he considers all the factors in the case including
those not before the courts, that he is influenced to some extent by precedents in
the Home Office, for as Sir Herbert Samuel put it [EVIDENCE No. 2415] "precedent
merely means that similar cases are being dealt with in similar ways." Thus Sir
John Anderson of the Home Office stated: "One could not state in a few words
the principles which guide a Home Secretary. In point of fact at any moment of
time one can say there is a line across the whole field of capital sentences. It is not
a knife edge, it is a somewhat blurred line, but it is a recognizable line and the
vast majority of cases are either quite clearly above that line or quite clearly below
it. There are quite a few cases in the course of a year which are on or near the
line. Those are the cases which require very special consideration in the light of
all the facts and of the practice, and, of course, the line, while it always remains a
line, may move up or down according to the views of the Home Secretary of the
moment, but it never ceases to be a line and becomes something jagged; it is alwayp
a recognizable line. In other words, there is a consistency and continuity of prac-
tice." EVIDENCE No. 194. Moreover, "it is practically impossible to draw up any
hard and fast, well-defined classification of the kinds of murders. There are broad
ones; there are the murders of wives, the murders of what are called housekeepers
who are living with the men practically as their wives and keeping house for them.
There are the murders of sweethearts. Those are broadly speaking the sort of
classifications which we can make, but not otherwise." EVIDENCE No. 5117; see
also Nos. 297, 5137, 5152, 5159.
In spite of these denials of the possibility of formulating criteria, the evidence
suggests some, at least, of the factors which appear to have consciously motivated
the exercise of discretion. Thus it is quite clear that the attitude of the public
towards a particular murderer is usually of some moment. EVIDENCE Nos. 157-8,
169, 175, 212. The "slow poisoner" and the "professional criminal," the man who
''goes out to rob taking a lethal weapon with him" and kills his victim or "someone
who comes upon him while he is executing his felonious design" are clearly doomed.
EVIDENCE Nos. 274, 2450, 5149. Premeditation as opposed to action on sudden
impulse weighs against the prisoner; there are many references to "the bad case of
the premeditated murder" [e.g. EVIDENCE NoS. 5148, 2448]; but premeditation is
not wholly decisive. EVIDENCE No. 5160. Political motives would have doomed a
murderer when Sir Herbert Samuel was Home Secretary [EVIDENCE No. 2353]
but might have operated to save him during the incumbency of Lord Brentford.
EVIDENCE No. 2449. In general, the search is for "extenuating circumstances"
[EVIDENCE No. 284] and provocation short of that which would have reduced the
homicide to manslaughter. EVIDENCE Nos. 2449, 5117. Youth [EVIDENCE Nos.
216-220; see note 65 supra], doubtful sanity [EVIDENCE No. 206], "weak minded-
ness" [EVIDENCE No. 2449], good character [EVIDENCE No. 2449, cf. No. 160],
extremely adverse circumstances [EVIDENCE No. 792], were all mentioned in a
in most bodies of penal law, administrative disc

islatively prescribed."17 But to what administrative agency shall such
discretion be entrusted? To entrust it to juries has the advantage of
avoiding the danger of nullification by verdicts of acquittal; juries can
hardly refuse to convict in order to save offenders from a fate they
think excessively severe, if they have the power to determine that fate
themselves. Then, too, the relative anonymity of the jury may make
jurors somewhat more willing to shoulder disagreeable responsibility;
and the judgments of juries with their constantly shifting personnel
may be more sensitive than those of more permanent officials whose
sensitivity is likely to be dulled by the boredom of administrative
routine. But this is little to say for the jury and there is much to be
said against it. Willingness and eager interest are poor substitutes for
that large understanding of the diversities that are possible in human
character and conduct, for that familiarity with the actual range of the
qualities of men who commit crimes and of the characteristics of their
behavior, and for that insight into the individuality and motivation of
particular offenders, which are such essential conditions of making
wisely those relative judgments of good and evil which the determina-
tion of modes of treatment demands."8 Inexperience and ignorance in
context which suggests that they may be deemed to constitute circumstances of

extenuation. Similarly, as the statistics themselves reveal [see note 65 supra]
it is a blessing to the condemned if she is a female. On the other hand, the man of
"abnormal brutal disposition" who is not "insane in any sense" has no chance.
EvIDENCE Nos. 232-233.
By far the most interesting and curious fact in the whole volume of evidence
is the extent of the opinion that while satisfactory criteria cannot be articulated, a
Home Secretary is not hampered in the exercise of his discretion by the absence
of such articulation. Cf. Carter's observation about custom: "It is-what is more
and better than known-felt." LAW: ITS ORIGIN GROWTH AND FUNCTION (1907)
191; see also 0. W. Holmes, Jr., commenting on a speech on codification by
Stephen: "The best draughtsman that ever lived can feel a ground of decision better
than he can state it." Book Review (1873) 7 AMERICAN LAW REV. 318, 319.
STEPHEN, op. cit. supra note 115, at 86-87, denies that the problem presents genuine
difficulty:
"From long experience I can affirm that the cases in which capital punish-
ment will, and those in which it will not, be inflicted can be distinguished almost
at a glance by an experienced person."
See also id. 84 et seq.; 2 id. 89n. Consider in this connection the interesting
data assembled by Professor Livingston Hall, Reduction of Criminal Sentences on
Appeal (1937) 37 COLUMBIA LAW REV. 521, especially 529-538.
"1 This leaves open the problem of what the terms of the compromise should
be, i.e. how wide the legislatively prescribed limits. Cf. Note (1937) 50 HARv. L.
REV. 677 for a description of contemporary practice generally; and see Wechsler
and Michael, supra note 1, at 702-707, 717-720.
118 Cf. 3 STEPHEN, op. cit. supra note 116, at 86: "I would on no account leave
to the jury either the question whether the circumstances of mitigation existed,
except in the case of insanity, or the question whether the sentence should be
mitigated. There is no subject on which the impression of a knot of unknown and
such matters make jurors too amenable to the rhetorical tricks and the
sophistries of counsel. Anonymity may lead to courage but it is also
likely to lead to irresponsibility. Finally, a simultaneous trial of the
question of guilt and the question of treatment often results in confus-
ing two issues which should be kept distinct ;119 and their separate trials,
whether before the same or a different jury, is open to obvious objec-
tions on other grounds.120 Hence, it is desirable that the problems of
treatment be left for the most part to some permanent agency, experi-
enced in deciding such questions.'12
The crucial question, therefore, is whether that agency should be
the court in which the question of guilt is tried,122 or some body, a dispo-
sitions tribunal of some sort, specially constituted for the purpose.'23
There is much to be said for either course. The creation of a new agency
may make it possible to obtain a better personnel than that generally ob-
tained under present conditions by the criminal courts. A body dealing
exclusively with questions of treatment should be able to give them more
thought, to utilize the assistance of the psychiatrist and of other students
of human behavior to better advantage, as well as to integrate more
effectively the judgments that must be made before the commencement
of treatment and those that can only be made during the course of
treatment.'24 Finally, a single tribunal dealing exclusively with
questions of treatment may be able to do what judges have not
done, namely, to develop fairly uniform sentencing policies.125 On
irresponsible persons who have to decide at a moment's notice without reflection,

is less to be trusted than the question whether or not the punishment of death should
be inflicted in a given case."
"'Consider, for example, the problem involved in proving past misconduct on
the part of the defendant prior to conviction of the crime charged. Cf. People v.
Zackowitz, 254 N. Y. 192, 197, 172 N. E. 468 (1930) ; People v. Russell, 266
N. Y. 147, 151-152, 194 N. E. 65, 66-7 (1934) ; see 1 WIGMORE, EVIDENCE (1923)
?? 57, 194; cf. L. Hall, Reduction of Criminal Senttences on Appeal (1937) 37 Co-
LUMBIA LAW REV. 521, 532.
'_I Since the general verdict of guilty discloses no finding as to the details of
the criminal act, it would be necessary to prove the character of the act a second
time and renew much of the controversy on questions of fact contested at the first
trial. This difficulty could not be wholly met- even by requiring special verdicts.
"' Perhaps an exception must be made for the death penalty under contemporary
conditions as a means to avoiding nullification and to provide a fairer consideration
of the special case of politically motivated homicides. But cf. STEPHEN, supra note
118.
12 Cf. 3 STEPHEN, op. cit. supra note 116, at 85-87.
See WARNER AND CABOT, JUDGES AND LAW REFORM (1936) c. VIII and the
literature cited id. 179n; Glueck, Principles of a Rational Penal Code (1928) 41
HARV. L. REV. 453, 478 et seq.; Gausewitz, Considerations Basic to a New Penal
Code (1936) 11 Wis. L. REV. 480-510.
24 The latter consideration is less important when deterrence is the dominant
end of treatment than it is when the dominant ends are incapacitation and re-
formation, but it is of great importance even in the former case.
"1 Cf. L. Hall, Reduction of Criminal Sentences on Appeal (1937) 37 COLUMBIA
LAW REV. 762-767. It is clear that difference of opinion must exist in dealing with
particular cases. It would be a great advance, however, if in the language of
Romilly, there were only "the same spirit always prevailing, and the same maxims
the other hand, judges have an unusual opportunity to study offend-

ers while they are being tried and to observe offenders of all sorts. The
dignity of their office and their responsibility would be decreased if they
were deprived of all power over sentences ;126 and this might lead to
unfortunate results. Moreover, judges can and should develop and
formulate uniform treatment policies. The English tradition of consul-
tation among judges, the preparation and publication of statements in
explanation and justification of sentences,'27 the determination of sen-
always kept in view." Op. cit. supra, note 11, at 121. Romilly's elaboration of the
point merits quotation: "Many . . . instances might be mentioned, in which the
same circumstance may, in the different views which different men take of such
subj ects,-be considered in the light of aggravation or of extenuation, as affording
a claim to mercy, or as a reason for a rigid execution of the law. The facility with
which a theft could be committed, is with him who looks merely at the moral con-
duct of the individual, matter of extenuation; he sees in the offender only a man
who had not vigour of mind to resist a very strong temptation; but to those who
consider the interests-of the public, it may appear that it is only by a severe execu-
tion of the law, that such temptations can be overcome, and that this very circum-
stance, therefore, furnishes a reason against relaxing the severity of the law. Is the
offender young, his youth awakens compassion; 'a lenient punishment perhaps may
reclaim him,' is the observation of one man; while another exclaims, 'If so early
he has reached such a pitch of depravity, what enormities may not be expected from
him as he advances further in life! compassion to him would be cruelty to the pub-
lic.' The prisoner was intoxicated when he committed the offense: and not being at
the time in possession of his reason, Titius thinks that it would be unjust to call
him to a rigid account, and to exert much severity of punishment; while Sempronius
sees in his drunkenness only a two-fold offence, and an additional reason for
severity. It was his first offence; till the moment when he committed it he had led
a life of labour and industry; and his past good conduct affords, in the judgment of
Micio, ground to forgive a single transgression; but Demea upon these very habits
of the culprit's former life rests his condemnation: 'He was not a man without re-
sources, and forced, as it were, because he could find no employment, to live on the
plunder of the public; but having the means of exercising honest industry, he has,
without necessity, without temptation, and therefore without the possibility of ex-
cuse, plunged into guilt.'" Id. at 123 n. For an interesting empirical study of Ger-
man sentencing practices, see EXNER, STUDIEN UBER DIE STRAFZUMESSUNGSPRAXIS
DER DEUTSCHEN GERICHTE (1931).
12B Cf. Gausewitz, supra note 123, at 485-487.
121 In two notable instances trial judges have followed this procedure. See th
opinions of Judge Stern in Commonwealth v. Ritter, 13 D. & C. 285 (Pa. 1930)
(death or life imprisonment on plea of guilty to murder in first degree) and of
Judge Ulman in Maryland v. Duker, ULMAN, A JUDGE TAKES THE STAND (1933)
211 (same). Judge Stern concluded that the behavior of the defendant was not of
a sort which would be likely to be more effectively deterred by the threat of death
than of life imprisonment and that life imprisonment would adequately meet the
danger from the defendant himself, as he was unlikely to commit crimes in prison.
In the course of his opinion he observed that "the problem is not one of law at all,
but only of penology," that the "entire subject seems to be one of an uncharted sea"
and that "it would be a great advance in the practice of criminal law in the United
States if criminology were made a course of study in the law schools of our uni-
versities; it would awaken in the minds of lawyers a realization of the fact that
Society is vitally interested in the subject, and it would help to bring into the
criminal courts lawyers who, being imbued with that idea, would practice the
criminal law from a communal rather than a legalistic point of view, and would
bring to those courts a dignity and seriousness which are now sometimes lacking."
13 D. & C. at 288-289. Judge Ulman concluded that to sentence Duker to imprison-
ment "would carry with it a threat, and a serious threat, against the lives of the
tences by the full bench rather than by a single judge, the judicial con-
ference and appellate review are all available means to this end. Finally,
if judges are incompetent or dishonest, there may be little reason to
believe that a special dispositions tribunal, elected or appointed in the
same way, will be any better; the causes of inadequate personnel are
likely to cut deeper and require more fundamental remedies than the
creation of specialized courts. But we think this much is clear: it is
unwise to entrust the determination of methods of treatment primarily
to the jury and the judges to whom it is entrusted can do much that is
not now done to improve the character of their determinations.128
2. Treatment Viewed Primarily as a Means to Incapacitation

and Reformation.
We have thus far proceeded on the historically congenial hypo-
thesis that the dominant end of treatment, except in the case of the ir-
responsible, should be the deterrence of potential offenders.129 We
have endeavored to analyse in general terms the intricate problems which
action on that hypothesis presents, to formulate the subordinate prin-
ciples which must be employed and the major considerations which are
relevant in their application. In the following section we must consider
the competing hypothesis that in dealing with the responsible as well as
in dealing with the irresponsible the primary ends of treatment should
be the reformation and incapacitation of particular offenders. To
other prisoners and of the guards in that institution." Id. at 220. In view of the non-
existence of an adequate treatment institution, he sentenced Duker to be hanged
but the Governor commuted the sentence. Id. at 273 et seq. See also Ulman, The
Trial Judge's Dilemma: A Judge's View in S. GLUECK, ed. PROBATION AND CRIM-
INAL JUSTICE (1933) 109 et seq.
12 The same may be said, however, with respect to the exercise of subsidiary
functions such as executive clemency and release on parole.
9 This was the hypothesis of Bentham, Romilly, Livingston, the English Com-
mon Law Commissioners, Stephen and Holmes as well as of many others who
spoke for the legislatively-minded during the last century of Anglo-American legal
development. Cf. note 7, sutpra. It is surprising therefore that Professor Hall con-
cluded from his study of sentence reduction cases involving crimes against the person
that such crimes "are punished in such a manner as will most nearly satisfy the emo-
tional reactions of the community to the crime." L. Hall, supra note 125, at 529. For
his conclusion is not based upon an expression of this objective by the courts con-
cerned, but rather upon an evaluation of "the factors considered in terms of the
theories to which they are apparently relevant." But the factors considered are at
least of sorts which are relevant in mitigating the severity of primarily deterrent
penalties, if our analysis of the problem of mitigation is correct. The fact that there
is not in the opinions "much consideration of the relative deterrent effects on others
of death and life imprisonment" [id. at 530-531] is not determinative. Professor
Hall may have been influenced by his acceptance of Professor Strahorn's analysis
of the ends which Anglo-American law in fact serves [Criminology and the Law of
Guilt (1936) 84 U. OF PA. L. REV. 491, 600]. While that analysis contains some
important insights, we think his ordering of means and ends for the most part
arbitrary.
what extent does this change in dominant ends alter the character of
the problem and of the factors which are relevant for its resolution?
It is obvious at the start that if a body of criminal law is formulated
upon the notion that the incapacitation and reformation of actual offend-
ers, rather than the deterrence of potential offenders, should be the chief
objectives of the treatment of those who commit crimes, its character
will depend largely upon which of those ends, whether incapacitation or
reformation, is regarded as the more important.
The view that incapacitation should be the dominant end leads to
the development of a theory of treatment and a pattern of official ac-
tivity, legislative and administrative, quite similar to the theoretical
development and the practical application of the view that deterrence
should be the principal objective. That is to say that a criminal code
based upon the former view and the practices involved in its adminis-
tration will be very much like a criminal code based upon the latter
view and the practices involved in its execution. (1) The methods of
treatment best adapted to incapacitation resemble the methods best
adapted to deterrence in that all are painful or harsh methods of treat-
ment. Indeed, they are in part the very same methods, namely, execution
and imprisonment; and whether they are employed for incapacitative or
deterrent purposes, from the point of view of actual and potential of-
fenders they are all punitive methods of treatment. (2) Just as it is
necessary to discriminate among actual offenders in the application of
severe methods of treatment for deterrent purposes, so is it necessary
to discriminate among them in the application of harsh methods of treat-
ment for incapacitative purposes, and partly for the same reasons. These
discriminations lead in the latter as well as in the former case to the use
of more and less rigorous methods of treatment, to imprisonment, for
example, for longer and for shorter terms. As seen by actual and po-
tential offenders, they result in both cases in the application of more and
less severe penalties. (3) The reasons for, as well as the consequences
of, the necessary discriminations are in part, at least, the same. The ob-
jections to the widespread and uniform use of drastically severe meas-
ures for the sake of deterrence apply with much the same force to
their extensive and undiscriminating use for the sake of incapacitation.
But there is an additional reason for distinguishing among offenders in
the application of incapacitative treatment. Incapacitation is not an
ultimate but an intermediate end; while it is an end when viewed in
relation to methods of treatment, it is also a means when viewed in re-
lation to the prevention of crime as a more remote end. Viewed as a
means, incapacitation requires only that dangerous offenders be incapaci-

tated and that they be incapacitated only so long as they are dangerous.
(4) The parallelism continues if we turn from the consequences of and
the reasons for the discriminating application of incapacitative methods
of treatment to the criteria by which the necessary distinctions should be
made. It is obvious that if some but not all offenders are to be incapac-
itated, those who ought to be, are the offenders who are dangerous, and
those who ought not to be, are the offenders who are not dangerous at
all or who are the least dangerous. It is also plain that if some offenders
are to be incapacitated more thoroughly than others, the thoroughness of
incapacitation ought to depend upon dangerousness and corrigibility;
the offenders who ought to be incapacitated most thoroughly are the
most dangerous and the least corrigible. To put the matter differently,
the less likely offenders are either to commit any crimes or to commit
grave crimes if permitted to return to society, the better the lives they
are capable of living in society, the earlier their incapacitation should
cease. But this ordering of the thoroughness of incapacitation, ranging
from permanent incapacitation, accomplished by execution or life im-
prisonment or other appropriate measures, at one extreme, to no incapac-
itative treatment whatever at the other extreme, is strictly comparable
to that ordering of the severity of treatment in accordance with the
characters of offenders which is employed in order to mitigate deterrent
penalties. We need hardly add that the problem of estimating the
characters of offenders is the same problem whether character is esti-
mated in order to determine the extent of incapacitation or the severity
of punitive treatment for deterrent purposes. (5) Nor is the corre-
spondence of an incapacitative and a deterrent system of criminal law
interrupted by the consideration that discriminations among the charac-
ters of offenders are a sufficient basis for ordering methods of treatment
directed towards incapacitation, whereas other factors must be taken
into account in ordering penalties directed towards deterrence. The most
important of these other factors is the relative undesirability of the
sort of criminal behavior for which the penalty is imposed. But, as
we have seen, the nature of an offender's behavior ought to be taken
into account in estimating his character, and this is equally true whether
character is being judged for the purpose of determining the extent of
incapacitative treatment or for the purpose of determining the severity
of deterrent penalties; if it is taken into account for the former purpose,
as it should be, the result is likely to be a fairly general, if rough,
correlation between the thoroughness with which offenders are incapac-
1316 COLUMBIA LA W REVIEW
itated and the relative undesirability of their criminal conduct. Indeed,

the case of professional criminals aside, it may be doubted whether an
incapacitative system which does not achieve that correlation can avoid
either the lesser danger of providing potential offenders with an in-
centive to engage in more rather than in less undesirable criminal be-
havior, or the greater danger of nullification. Consideration of the
other two factors which must be taken into account in fixing the harsh-
ness of deterrent penalties leads to a like conclusion. These factors are
the relative strength of the desires which motivate different sorts of
criminal behavior and the existence of a relationship between a criminal
act and some injustice done the actor. But, as we have seen, to give the
second of these factors due weight in ordering deterrent penalties is
entirely compatible with their ordering according to differences in the
characters of offenders; and to take the first of them into account dis-
turbs such an ordering only in so far as it results in increasing the
severity of penalties, without regard to the character of offenders, in
exceptional conditions of widespread provocation,-a temporary ex-
pedient to which any system of criminal law, whatever its abiding
principles, may find itself forced. (6) There is a somewhat greater
divergence between the criteria for fixing the maximum and minimum
of the severity of deterrent penalties and those for determining the
greatest and the least extent to which offenders ought to be incapacitated,
but the divergence is not very great. While the most thorough incapaci-
tation as well as the most powerful deterrent threat results from execu-
tion, there is less justification for execution to incapacitate than for the
death penalty to deter; this results from the consideration that treatment
to incapacitate is concerned primarily with the future behavior of actual
offenders whereas treatment to deter is concerned primarily with the
future behavior of potential offenders, that is, of the entire population.
Otherwise, however, the question how completely ought offenders be
incapacitated is for the most part the same as the problem how severely
ought they be punished for deterrent purposes, namely, how long
ought they be imprisoned. Similar points can be made with respect
to the minimum of incapacitation and the minimum of severity. In
many cases in which the end of deterrence requires that some penalty,
however mild, be imposed upon actual offenders, they may not be at all
dangerous or only very slightly dangerous so that the end of incapaci-
tation either does not demand that they be incapacitated to any extent
or demands that they be incapacitated only to a very slight extent. But,
as we have pointed out, in the present state of knowledge, judgments
about the dangerousness of offenders are very uncertain in m

consequently, if it is desirable to insure that incapacitative measures
will be employed whenever there is need for them, nearly all offenders
will have to be subjected to some incapacitative treatment. So long as
incapacitation is the dominant treatment objective, that would seem
to be the prudent course to follow, it would seem desirable to take
no chances, at least in the case of offenders who have engaged in
criminal behavior as highly undesirable as all criminal homicides must
be conceded to be. If that view of the matter is adopted, the result is
that some minimum of incapacitation must be fixed in an incapacitative
system, at least for those who commit criminal homicides and other com-
parably grave crimes, just as a minimum of severity must be established
in a deterrent system; and the former must be fixed by reference to a
similar criterion, namely, what minimum of incapacitation will avoid
the danger of nullification, both that which results from undue severity
and that which is the consequence of undue leniency. (7) The
principle of incapacitation does not require that the formulation and
application of the criteria for discriminating among offenders for pur-
poses of treatment or the making of any of the judgments of more or
less that the administration of any system of criminal law necessarily
involves, be left to other agencies than those to which similar tasks
would be entrusted in a deterrent system. Although, as we have seen,
the extent of incapacitation ought to be ordered according to the char-
acters of offenders and although it is more difficult for a legislature to
order treatment according to the character of the criminal than according
130 See p. 1272, supra. Cf. Professor Dession's illuminating paper, Psychiatry
and the Disposition of Offenders (read before the Round Table on Crimes, Asso-
ciation of American Law Schools, Chicago, 1936), especially the following observa-
tions: ". . . the declared psychiatric objectives of rehabilitation and prevention
imply the possibility, when an offender first comes in contact with the law, of pre-
dicting on the basis of psychiatric diagnosis whether he may at any given moment
be released with safety or whether he may not. But, although research goes for-
ward, the extent to which such predictions could be made with any scientific assur-
ance has not yet been demonstrated. . To further complicate matters, substantial
percentages of our offenders are mentally disordered and/or defective. The data
indicate, moreover, that there are more borderline cases of psychopathic and men-
tally defective personality than of psychosis or 'insanity' among this group. And
unfortunately the psychopath and the defective appear, generally speaking, to be
on the one hand the least susceptible to treatment and, on the other, the most diffi-
cult to label as prospective recidivists or not with any great assurance. A treatment
board would almost always be forced to find that the psychopath or defective whose
infractions to date were of a minor character might quite conceivably commit
[a] more serious offense if released at any given time. But a board could rarely
predict this on a plan of reasonable certainty. The population includes a great many
of these handicapped people, not all of whom by any means get in trouble with the
law. Whether any one of them will, or having once committed an offense, will
commit another, seems to depend very largely on incalculable future patterns of
environmental strain."
to the character of his act, a rough legislative ordering of that sort is en-
tirely feasible. It can be achieved by taking account of the relative un-
desirability of different sorts of criminal behavior, of such psychological
aspects of criminal conduct as the quality of the actor's knowledge, in-
tention, motive and provocation, and of other factors such as criminal
record and physical and mental disorders, which are indicative of an
actor's character. The case for some legislative control of the dis-
criminations to be made in the application of treatment, as a means
to equality in the administration of the criminal law, to the preven-
tion of administrative abuses which too great discretion facilitates,
and to strengthening administrative courage and sharpening admin-
istrative insight, is equally strong whether the dominant end of
treatment be incapacitation or deterrence; and the extent of the con-
trol which a legislature should attempt, is as debatable in the one case
as in the other. As for the administrative agency which should perform
the task of determining the extent of incapacitation in particular cases,
what has been said in discussing the cognate problem as it arises in a de-
terrent system applies here with a single qualification: the case for as-
signing this task to a dispositions tribunal is somewhat stronger in an
incapacitative than in a deterrent system.131 (8) Finally, whether the
principal end of treatment is incapacitation or deterrence, efforts must
be made during the period of their incarceration to reform offenders
who will some day be given their liberty.
We have so far been considering the similarities and differences
between two systems of criminal law, one having deterrence and the
other incapacitation as its dominant end and both having reformation
as a subsidiary end; and we have discovered that two such systems
would resemble one another closely. That is to say, we have found no
fundamental incompatibility between incapacitation and deterrence. We
must now consider whether and to what extent a system having either
deterrence or incapacitation as its dominant end will necessarily be
changed in character if reformation ceases to be wholly subordinate to
those ends and is given a more commanding position. This is the prob-
lem whether and to what extent there is basic inconsistency between
reformation, on the one hand, and deterrence or incapacitation, on the
other. The answer to that question, as we shall see, will depend upon
131It is stronger because (1) the end of incapacitation is likely to be disserved

to a greater extent by faulty judgments about the dangerousness and corrigibility
of particular offenders than the end of deterrence by similar judgments about the
characters of particular offenders and (2) a dispositions tribunal, of which the
trial judge might be a member but of which other students of human beings ought
also be members, should be able to make more precise and delicate judgments than
the judge alone or even a number of judges.
what is meant by reformation as an end and, whatever is meant, upon

how important a position it occupies in relation to the other ends of
treatment. Reformation may mean only such an alteration in an
offender's character as the result of treatment that he will com-
mit no crimes after he rejoins society. In that meaning, nothing
is implied as to the desirability of returning him to society at any
particular time or at all; it is enough that if and when he is released
he does not recidivate. Or it may mean that offenders are to be so
treated as to render them capable of living non-criminal lives as soon
as possible and that they are to be restored to society as soon as they
have that capacity. Implicit in this meaning is an affirmation of the
desirability of a minimum of interference with an individual's life, if
it can be non-criminal, and of a maximum of effort to assist him to lead
such a life in the shortest possible time. It will be immediately observed
that reformation in the first sense and deterrence or incapacitation can
be incompatible ends of treatment only when, to achieve the latter, meth-
ods of treatment are employed which are not wholly incapacitative; that
is, that these ends can be inconsistent only in the case of offenders who
are not executed or incarcerated for life. However, they are incongru-
ous even in such cases only to the extent that deterrence or incapacita-
tion requires (1) the use of methods of treatment that make it more
probable than it would otherwise be either that the offenders who are
subjected to them will commit further crimes or that they will commit
more numerous or more serious crimes, or (2) the exclusion of meth-
ods of treatment that would make it less probable than it would other-
wise be that the offenders who are subjected to them will recidivate at
all or recidivate to the same extent. But if reformation is taken in its
second meaning, greater incompatibility between reformation and de-
terrence or incapacitation is possible, for they can be inconsistent not
only in the two respects just stated but also to the extent that deterrence
or incapacitation requires the use of methods of treatment which result:
(3) in the incapacitation to any degree of offenders who are not
dangerous or who could be reformed by non-incapacitative methods of
treatment; (4) in the continued incarceration of offenders who are no
longer dangerous; (5) in the permanent incapacitation of corrigible of-
fenders; and (6) in the exclusion of methods of treatment best adapted
to the speedy reformation of offenders.
The question is, then, to what extent does deterrence or incapacita-
tion necessitate the use of methods of treatment that have these results ?
First, to what extent does either of them demand that methods of treat-
ment be employed which are causative of recidivism? Capital punish-
ment and life imprisonment cannot have that effect because offenders
treated in those ways are permanently eliminated from society and have
no opportunity to become recidivists. On the other hand, although we
know no more about the causes of recidivism than about the causes of
crime in general, there is some basis for the opinion that some of the
methods of treatment best designed to deter and, to a lesser degree, some
of those best adapted to incapacitate, but which are not permanently in-
capacitative, do increase the probability that offenders treated in those
ways will commit further crimes or will commit more crimes or more
grave crimes than they otherwise would. We have previously expressed
the judgment that this opinion has sufficient basis in what is known in
general about human nature and behavior, to justify the condemnation
of corporal punishment and a brutal prison routine as means to deter-
rence; and, of course, these methods of treatment do not serve the end
of incapacitation at all. If, then, brutal methods of treatment are not
employed for either deterrent or incapacitative purposes, as they need
not be, but only methods whose severity consists solely or chiefly in the
fact or in the duration of incarceration, the problem reduces to this: To
what extent is imprisonment or imprisonment for a longer rather than
a shorter term causative of recidivism? No one can answer that ques-
tion but, whatever the relationship between imprisonment and recid-
ivism, there is reason to believe that it is much less likely that an of-
fender will r6cidivate after serving a term of imprisonment of the
length of those which are now commonly administered in the case of
aggravated homicides for which the penalty is neither death nor life
imprisonment, than that he will become a recidivist after being im-
prisoned for a comparatively short period. In the former case he will
rejoin society after time has produced profound changes in him and,
probably, in the environment to which he returns; in the latter case these
changes will not have occurred. These considerations not only justify
the exclusion of cruel methods of treatment in order to deter or inca-
pacitate but constitute arguments for the use of probation and parole
even in a system of criminal law in which deterrence or incapacitation is
the dominant end: (1) If imprisonment may be a cause rather than a pre-
ventive of recidivism and if, other things being equal, the shorter the
term of imprisonment the more likely it is to be followed by recidivism,
it would seem prudent to substitute for relatively short terms of impris-
onment such non-incapacitative methods of treatment as probation, at
least in the case of those offenders who appear to be the least danger-
ous.132 (2) If among offenders who are neither executed nor imprisoned
132 In such cases, it will be observed, a wise policy of mitigation would, apart
from the consideration discussed in the text, lead to relatively short terms of im-
for life there are those who are less likely to become recidivists if
released at an earlier rather than a later date, it would seem prudent to
terminate their incarceration by parole rather than to hold them in
durance.133 It is well to note, however, that each of these courses not
only requires administrators to make judgments which in the present
state of knowledge it is exceedingly difficult to make,134 but also involves
the renunciation of means better adapted to incapacitation and deter-
rence in favor of means better adapted to reformation.135 In short, each
of them involves the subordination of the ends of incapacitation and de-
terrence to the end of reformation in such cases to an extent which will
vary with the sort of treatment which would otherwise have been em-
ployed; and this in turn depends somewhat upon the kinds of crimes
which have been committed. For example, probation is likely to result
in a greater sacrifice of deterrent considerations in cases of criminal
homicides than in cases of petty thefts.136 But in the present state of
knowledge no one can say whether a system of criminal law which ac-
cords priority to reformation to the extent indicated is likely to result
in the prevention of more or fewer serious crimes than one which does
not. However this issue is resolved, one can say that in so far as the
former really promotes the welfare of actual offenders and reduces
public expenditures for the maintenance of penal institutions and their
inmates, it serves ends which the latter does not. And in any case the
point which is important for our present purposes is only that in order
to guard against the danger that deterrent or incapacitative treatment
may lead to recidivism, a system of criminal law in which deterrence is
prisonment, and this whether the dominant end is deterrence or incapacitation. That
some homicide cases may be of this sort is clear. Indeed, English officials testifying
before the Select Committee on Capital Punishment paid strikingly high tribute to
the character of many reprieved murderers whom they came to know in prison, and
even to the characters of some who were executed. See REPORT p. 52 et seq. A
similar tribute from many American prison officials would not be difficult to ob-
tain.
13 Cf. Alexander Paterson, supra note 108, on the progressive deterioration of
persons confined in prisons for periods longer than ten years. Even if he is right
about this, however, it is not clear that their deterioration is of the sort that would
lead them to recidivate after release. Cf. Dr. James Devon, testifying before the
Committee [MINUTES OF EVIDENCE No. 3260]: ". . . those who have been in for
15 or 20 years, when they come out do not commit other murders, but they come
out not very fit to do much good in the world."
134 The judgment that a man will recidivate because of protracted incapacitation
is perhaps an even more difficult judgment than the judgment that he will be ruined
by being incapacitated at all.
35 It will be observed that probation or parole will disserve the end of in-
capacitation only when the administrative judgment that the offender is not danger-
ous or no longer dangerous turns out to be unsound, but that they disserve the end
of deterrence to whatever extent the deterrent efficacy of the law is decreased by the
diminution in its severity to which they lead.
1" Cf. pp. 1270-1272 supra.
the principal end would not require extensive modification, and one in
which incapacitation is the chief end would need even less alteration.
So much in answer to the question whether and to what extent those
ends demand that methods of treatment be employed which are causa-
tive of recidivism. The next question is whether and to what extent
they preclude the use during the period of incarceration of methods of
treatment adapted not merely to avoid making recidivists out of prison-
ers who will someday be released but to prevent their becom-
ing recidivists, that is, to reform them. The end of incapacitation
certainly does not preclude the use of such methods; to do what can
be done to reform offenders who are undergoing imprisonment does
not disserve the end of incapacitation; accordingly, to do so does not
involve the subordination of that end to reformation. But it may be
more difficult to reconcile the use of reformative treatment with the re-
quirements of deterrence. Whether or not it is, depends upon the sorts
of treatment which are best adapted to alter the characters of various
types of prisoners and the extent to which treating actual offenders in
such ways will render incarceration less unattractive to potential of-
fenders. We ourselves are inclined to believe that there is no known
method of reformative treatment which would have this effect to any
considerable degree. Most men appear to regard imprisonment as suffi-
ciently unpleasant even when for brutal punishments and deadening
idleness there are substituted moral and intellectual education, vocational
guidance and training, physical and mental therapy, wholesome food,
and some recreation. They are likely to continue to regard it as ex-
ceedingly unpleasant so long as they can remain a nation of free men
and can avoid economic disintegration. But it may well be that as
knowledge of the causes of criminality increases, new methods of re-
formative treatment will be contrived which will so transform penal
institutions that they will offer to many persons a type of environment
and a measure of freedom that they will find preferable to the relatively
anarchic conditions of extra-institutional life. In that event the treat-
ment best adapted to reformation would disserve the end of deterrence
and could not be employed without elevating the former end above the
latter.
Thus far we have considered in what respects a system of criminal
law having deterrence or incapacitation as its dominant end and ref-
ormation as a subsidiary end, would necessarily undergo transfor-
mation as reformation, in the sense of an end of treatment requiring
efforts to reform offenders who may some day be returned to the com-
munity, is given a more and more important position among the ends of
treatment. If we now examine the same problem when reformation is

understood in its other sense as an end of treatment requiring that ef-
forts be made to reform offenders as soon as possible and to return them
to society as soon as they have been rendered capable of living non-
criminal lives, we shall discover a greater incompatibility between in-
capacitation or deterrence and reformation; we shall find that incapaci-
tative and deterrent methods of treatment are likely to disserve the end
of reformation to a much greater degree. In the first place, if ref orma-
tion is taken in its second sense, the execution or imprisonment of an
offender for life can be justified only if he is actually and utterly incor-
rigible; which is to say that it is doubtful that such thoroughly inca-
pacitative treatment can ever be justified in the present state of psy-
chological knowledge. And even if there are types of offenders of
whom we can say that they are utterly beyond redemption, it is even
more doubtful that we can make such judgments about particular of-
fenders with assurance until we have made earnest efforts to reform
them, or that we can make them with finality until such attempts have
continued for a considerable period of time.137 In the second place, if,
as the reformative end demands, only dangerous offenders are to be
incapacitated138 and are to be incapacitated only as long as they are
dangerous, and if dangerousness is estimated by administrators with a
bias against incapacitation or deterrence and in favor of reformation,139
either because of its new and more prominent position among the ends
of treatment or for any other reason, incapacitative measures will be
employed less frequently and less thoroughly. In that event, not only
will the end of incapacitation be disserved but the end of the deterrence
as well, since the severity of the scheme of treatment as a whole will
be further diminished. In the third place, it seems quite clear that if a
genuine effort is to be made to reform all offenders who may be cor-
rigible as speedily as possible, treatment must take the direction of the
moral and intellectual education of offenders, the cure of their minds
and bodies, and the reconstruction of their environments on a gargan-
137 It must not be forgotten that a man's corrigibility is relative to the treatment
to which he is subjected and the character of the environment in which he would
have to live in the event that he were released. It cannot be said in the present
state of knowledge of any man whose difficulty is moral rather than physical that
there are no methods of treatment to which he would respond and no social en-
vironments in which he could lead an acceptable life.
138 That is, offenders who cannot safely be subjected to some non-incapacitative
form of treatment.
l By reason of the nature of the question of dangerousness [cf. Wechsler and
Michael, supra note 1. at 731, n. 128], the decision of that question in close cases
is likely to depend upon whether administrators believe that offenders should be
incapacitated in all doubtful cases or only in clear cases. Cf. Dession, loc. cit. supra
note 130.
tuan scale.140 In such a scheme of things such institutions as the sani-

tarium and the collective farm, rather than the liberal prison or the
prison colony, yield the appropriate institutional pattern. Finally, the
application of reformative treatment requires that administrators make
a number of very delicate judgments about particular offenders both at
the time of conviction and during the course of treatment. However
capable and wise they may be, administrators will find it extremely
difficult to achieve the necessary subtlety in their determinations unless
they are allowed great freedom in making and revising their decisions.
In brief, reformation as an end demands that legislatures should not
attempt to control administrators further than to prescribe very broad
criteria of dangerousness for their guidance.
It is clear from what we have heretofore said that in our judgment
such extensive subordination of incapacitation and deterrence to re-
formation in its larger meaning cannot be justified in the present state
of knowledge as a means to the prevention of crime. Its justification
must rest upon whatever social values inhere in salvaging the lives of
criminals. The objections to giving reformation primacy among the
ends of treatment are many and some of them apply with especial force
to the treatment of persons who have engaged in homicidal behavior.
Stated quite briefly, they are: (1) the diminution of the deterrent efficacy
of treatment; (2) the impairment of its incapacitative efficacy as the
result of the uncertainty of judgments about dangerousness and corrig-
ibility; (3) the danger of nullification; (4) the danger of inequality in
treatment; (5) the danger that administrators will abuse their great
freedom of decision; and (6) the tremendous cost of reformative treat-
ment on a scale so gigantic. Those who would make reformation the
dominant end of treatment must make concessions to these objections,
as is indicated by the character of the criminal codes whose draftsmen
have been animated by Positivist ideas.14' The force of some of these
objections can be reduced by the legislative prescription of maximum
and, perhaps, minimum periods of incapacitation on the basis of aggra-
vating and extenuating factors such as we have enumerated.142 But the
more extensive the concessions which are made to the objections to the
priority of reformation, the less its dominance over incapacitation and
deterrence will be, and the more the resulting system will resemble
"40This point has been forcefully stated by Professor Dession, loc. cit. supra
note 130.
14 Cf. FERRI PROJECT, op. cit. supra note 70, discussed in Glueck, Principlesi
of a Rational Penal Code (1928) 41 HARV. L. REV. 453, 467 et seq.; MEXICAN CODE
(1929) arts. 47-63, 963-988; MEXICAN CODE (1931) art. 302 et seq.; SOVIET CODE,
supra note 102; see also art. 9.
142 Cf. p. 1300, supra.
those we have discussed above. The problem is not whether the com-
promise shall be made but what its terms shall be. There is no answer to
this problem for all times and places if, indeed, there is one for any time
and place.143 To a considerable extent the conflict between deterrence
and incapacitation, on the one hand, and reformation on the other, as
ends of the treatment of criminals, represents a genuine antinomy in the
government of men. No one who values humanity can fail to desire
that reformation, broadly conceived, be made a more important end of
treatment than it now is or be too fearful of the consequences of doing
so.
JEROME MICHAEL
HERBERT WECHSLER
COLUMBIA UNIVERSITY SCHOOL OF LAW
'43 It could be answered with reference to crime prevention only if crime pre-
vention were regarded as the supreme value and we knew what combination of
these ends would prevent the most crime.

Wechsler Rationale of The Law of Homicide II

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A Rationale of the Law of Homicide II

Author(s): Jerome Michael and Herbert Wechsler

A RATIONALE OF THE LAW OF HOMICIDE II

In our survey of the considerations which are of principal im-

1 See Wechsler and Michael, A Rationale of the Law of Homicide I (1937) 37

each of these hypotheses in turn with a view to articulating the sub-

themselves. Taking the false position that punishment is necessarily retributive in

B. THE TREATMENT OF PERSONS WHO COMMIT CRIMINAL HOMICIDES

1. Treatnment Viewed Primarily as a Means to Deterrence

9See Wechsler and Michael, supra note 1, at 731, 735-6, 752-7.

practicable in a civilized society geared for peace. In the first place,

treatment is not necessarily16 based upon a retributive philosophy, as

use of life-imprisonment may avoid these dangers to some extent, the

lem of nullification by complainants and witnesses, and, in any event,

This problem is discussed at greater length, infra, p. 1308 et seq.

IL There are several reasons why the severity of penalties should

sirable it is that they be thoroughly incapacitated; the better the lives

I. The severity of penalties should be correlated with the strength

IV. The severity of penalties should also be correlated with the

I- THE RELATIVE UNDESIRABILITY OF CRIMINAL BEHAVIOR

probable consequences. Even when our knowledge of probable con-

See Wechsler and Michael, supra note 1, at 739-746.

tion or loss of property as well as of life. Similarly, other things being

II THE CHARACTER OF THE OFFENDER

31 By a man's "passions" we mean the pattern of his sensual desires.

(a) The Nature of the Homicidal Behavior

(1) The Significance of Advertence and Inadvertence

'The significance of this fact as evidence of the actor's character is indefinite;

is, to the actor's failure to make use of his knowledge, to heedlessness

(2) The Significance of the Actor's Intention

Cf. SALMOND, ON JURISPRUDENCE (8th ed. 1930) 408-413. Salmond argues

By hypothesis, the ends for which men commit criminal homicides,

4 Bentham, defining motive as "the perspective of a pleasure to be procured, or

(4) The Significance of the Antecedent Circumstances: Provocation

Provocation may be greater or less, but it cannot be measured by

5 Cf. SUMMA THEOLOGICA, I-II, Q. 22, A. 3 ad 2: "Intensity of passion depends

(b) There is a converse to provocation. There are circumstances

(5) The Significance of Deliberation and Impulse

52 On the distinction between deliberation and impulse as one primarily of de-

deliberation in another way. Thus it may be said that reflection prior

(b) The Actor's Physical and Psychical Condition at the Time

recognition that excess of passion or defect of reason may be due to

disorders, with which to supplement the judgments of common experi-

(c) The Actor's History

If the nature of a homicidal act is significant for the estimation of

serious instances of anti-social conduct, criminal and non-criminal.6'

knowledge only the roughest approximations are possible. However, it is interesting

(d) The Effect of the Homticidal Experience Upon the

It is obvious enough that killing a fellow human being can be an

1II THE RELATIVE STRENGTH OF THE DESIRES WHICH MOTIVATE

been argued, the severity of deterrent penalties ought to vary with

"Cf. PALEY, PRINCIPLES OF MORAL AND POLITICAL PHILOSOPHY ( 11th Ameri-

One further and analogous point remains to be made. When we

7 See Wechsler and Michael, supia note 1, at 733.

deterrence is the dominant end of treatment.79 In the first place,

may consciously create unjustifiable risks of death, although they do not

IV. CAUSAL RELATIONSHIP BETWEEN THE CRIMINAL ACT AND SOME

We have previously observed that the fact that a criminal act is

Formulated in terms of justice, Green stated90 the principle as

This principle is inconsistent with those which we have already

The major points of the foregoing discussion can be roughly sum-

Factors of Major Significance in Ordering the Severity of Punitive

In what has been written we have not addressed ourselves specifi-