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The Green Bag

in custody seems likewise, on moral grounds, to be regulated by the seriousness of his harmful act. Detention in such a case is not punishment but segregation for the public good. The insane person who had committed some grave injury to society, like the crime of murder, would normally be detained for life. But it is impossible to draw the line clearly between responsibility and irresponsi bility, and a murderer classed as an irrespon sible might in fact have such a degree of par tial responsibility as would render it just to impose capital punishment. In the case of the irresponsible criminal, there is always, in determining how the state shall treat him, the possibility of having to consider the aggravating circumstance of a partial respon sibility. There is also another possible cir cumstance to be considered, that of the possi bility of a complete cure. The general work ing out of the problem of disposing of insane criminals, purely from a moral standpoint, is therefore apparent. This is not approaching the subject from a legal point of view. But it should be as true in law as in morals not alone that the punish ment is to fit the crime, but that the deten tion is to fit the irresponsible act. It is even more important to recognize the fact that because there is no clearly defined dividing line between sanity and insanity, severe punishment of the slightly insane may be justifiable sometimes. This introduction will perhaps serve to show that any view which is aimed at the overthrow of that theory of responsibility which is ingrained in our crimi nal jurisprudence is false and to be resisted. Such a view, however, is advanced in a note worthy article :— "Insanity, Responsibility, and Punishment for Crime." By Professor James J. Walsh, M.D., LL.D. American Journal of the Medical Sciences, v. 138, p. 262 (Aug.). The author of this article emphasizes the fact that there is no agreement among ex perts as to an absolute definition of insanity. Insanity as a defense for crime is an excuse which may be "extremely difficult to control and keep from being abused." The judg ment of the expert, instead of being of aid to the court and to the jury, may be swayed unconsciously even when he is acting in good faith. The abused plea of insanity, together with the defeat of justice by legal technicali ties, have brought about "a very serious state of affairs." Dr. Walsh says that statistics have shown a higher percentage of railroad brakemen to have forfeited their lives than of murderers. Ambassador White has conse quently declared human life to be cheaper in this country than in any other portion of the civilized world. The author continues to say that the abuses which have brought about this situation are less serious in the medical than in the legal profession, and that the system which tolerates the abuse of the plea of insanity "is founded on certain wrong principles as regards the administration of justice."

"The idea of punishment as revenge is past," continues Dr. Walsh, and the purpose of punishment is now that of preventing repetition of the act by the criminal and of deterring others from like acts. Not only rational children, but even those who are to some degree irrational, can be taught by properly applied punishment the difference between right and wrong. Animals, that are not considered responsible, may be taught by punishment what they are not to do. Defective human beings must be made to realize that certain actions will be followed by suffering. We must not allow the subrational to escape, for otherwise he is en couraged to keep on doing wrong, and his example influences others. "So far as possible, punishment must inevi tably follow crime in the world, in order to impress the subrational and deter them from yielding to impulses. Far from being less deserving of punishment in every sense in which a modern penologist cares to inflict punishment, these individuals are more im pressed by it, and, above all, need to be more impressed by it. . . . "It is for the subrational that we most need to insist on punishment. The cunning of the insane is proverbial, and this extends also to the subrational, and many of these folk realize that their difference from others, their queerness, as their folks call it, is quite enough to make a verdict of insanity in their case assured with the present lax enforcement of law." From the foregoing abstract of Dr. Walsh's views, it will be apparent that while funda mentally right he blurs the distinction be tween responsibility and irresponsibility, as a paramount element of the problem with which courts have constantly to deal. Dr. Walsh summarizes his conclusions as follows :— "1. The term insanity is so vague that its use as a plea to enable the criminal to escape punishment is not justifiable in the present state of our knowledge. "2. Responsibility differs in different indi viduals, but it is never quite eliminated except in the absolute idiot. For those of lowered mentality, even the animals, punishment has a good effect. 3. Punishment is not revenge, but is meant to deter the individual criminal, and above all to deter others tempted to criminal acts. "4. Punishment is more needed for those of lowered mentality, of whom the expert may well declare that they are insane, than it is for the normal. "5. Subrational individuals with the cun ning of the insane will take advantage of our leniency if present conditions are allowed to continue, and we shall have a riot of crime by personal violence." Had Dr. Walsh gone more to the heart of the matter, he might have worked out his views to a more practical application to the problem of the abuse of the insanity plea. As it is, he supplies no available criterion for