Criminology in Germany Werner S

Journal of Criminal Law and Criminology Volume 31 Article 4 Issue 5 January-February

Winter 1941 Criminology in Germany Werner S. Landecker

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Recommended Citation Werner S. Landecker, Criminology in Germany, 31 Am. Inst. Crim. L. & Criminology 551 (1940-1941)

This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. CRIMINOLOGY IN GERMANY Werner S. Landeckerl

The problem of crime can be studied I. from various points of view. The so- The Legalistic Approach: The ciologist, the psychologist, the jurist- Purpose of Punishment each looks at crime from a different angle and is concerned with an aspect German criminology can be said to of crime that is determined by the in- have arisen from the interest of the terest predominating in his field of jurist in matters of crime. This is study. This should be borne in mind hardly surprising, for in a sense crime in a discussion of German contributions is a product of law. No act is a crim- to the field of criminology. Here, too, inal act unless it is determined as such we find that the problems considered by law; i.e., unless law prescribes a vary with the branches of science from penalty for the person who has com- which the writers approach the study mitted that act. Therefore, once jurists of crime. In Germany, this has led to had become less dogmatic in their point an even greater diversity of crimino- of view by broadening their interest logical investigations than in this coun- beyond the mere interpretation of legal try. This is the case because in Ger- rules, they began to philosophize and many contributions to criminology are meditate about the purpose of legal in- not co-ordinated in any single depart- stitutions and focused their attention ment of higher learning; whereas, in on the question, Why do we punish the United States it is sociology which criminals? functions as a clearing house for all In varieties of criminological research. The answers given to this question Germany, criminology is not considered can be classified roughly into two a subdivision of sociology, nor is it an groups. According to some writers, the autonomous science in its own right; penalty is solely a reaction of society rather, it is a loose nexus among con- to the fact that a crime has been com- tributions coming from a variety of mitted; according to others, the penalty sources. Corresponding to the partic- means to an end, by which society ular points of view employed in these is a of fu- contributions, one can distinguish be- attempts to reduce the number the first tween the legalistic, anthropological, ture crimes. Customarily, psychological, sociological and biolog- group is called "absolute theories of ical approaches to the field of crimin- punishment," the second "relative the- ology. ories of punishment."

' Teaching Fellow in Sociology and Research was submitted on the recommendation of Pro- Associate, University of Michigan. This article fesnor Arthur E. Wood. [ 551] WERNER S. LANDECKER

Absolute Theories-Justice punishment should be determined by An influential "absolute" theory was the principle of retaliation. Whoever that advanced by the philosopher Im- has committed murder must die, sex manuel Kant (1724-1804). Nowadays, offenses must be punished by castra- his penal theory appears to be the tion, etc. Beccaria, therefore, who ad- weakest point in his system of thought. vocated the abolition of capital pun- Yet he laid the basis for modern liberal ishment was motivated, as Kant would and humanitarian ideas by stressing the see it, "by the compassionate senti- value of the individual. Man is an en- mentality of a humane feeling." The tity which has its own intrinsic value; fact that Kant could arrive as such ''one man ought never to be dealt with conclusions from the principle of the merely as a means subservient to the intrinsic value of man shows that so- purpose of another. ' ' 2 This principle cial problems cannot be solved solely served not only as a basis for his hu- by means of abstract reason; for any manitarian philosophy, but also as the principle, when carried to its extreme, point of departure for his penal theory defeats itself. which is utterly devoid of humanitarian Negation of Wrong considerations. Since Kant assumes that man should not be used as a mere Partly in harmony with Kant's views means, he maintains that even when is the penal theory of another great being punished man should not be used German philosopher, Georg Wilhelm as a means to an end, neither to the Friedrich Hegel (1770-1831). He, too, end of reforming society nor even to advocates an absolute theory, in that he the end of reforming the criminal him- justifies punishment not as a means self.' Punishment, then, finds its jus- to influence either society or the crim- 4 tification only in the principle of jus- inal,'but as an act of retribution. How- tice, which requires that a person who ever, the reasoning on which this thesis has committed a crime shall be pun- is based is quite different fronr Kant's. ished. In other words, punishment has In the first place, if punishment were its raison d'6tre not in any future effect an attempt at exercising influence on upon which it may be directed, but people, either on the criminal or on only in the criminal act by which it is others, it would be based on the as- preceded. sumption that man is not free. This, Hegel objects, would violate the prin- Justice, according to Kant, requires ciple that right and justice must have not only that crime be followed by their seat in the free will, not in a punishment, but also that the harm restriction of the will. To use punish- done by the offender should find its ment as a threat by which to enforce equivalent in the harm done to him; law would be much the same as to raise justice requires that the measure of a cane against a dog. Man, however,

2Immanuel Kant, The Philosophy of Law, 4 Hegel's Philosophy of Right, transl. by S. W. trans]. by W. Hastie, Edinburgh, 1887, p. 195. Dyde, London, 1896, §§90 ff. 3 Kant, op. cit., p. 195. CRIMINOLOGY IN GERMANY must not be treated as dog, but with Therefore, it can be said in a sense due accordance to his dignity and that the criminal renders the law a honor. service; he gives the law a chance to Hegel feels that punishment is a form unfold its strength and by this to ap- of recognizing the criminal as a ra- pear as a concrete entity. By inflicting tional being, because the conception punishment on the criminal the law and measure of his punishment are de- takes advantage of this opportunity for ducted from his very act. The criminal materializing itself. Law gains in con- act is a negation of law; therefore, creteness and tangibility through the law must reinstate itself by canceling act of punishment; in Hegel's terms, this negation through punishment. "it becomes an actualized will, free not Punishment is the negation of a nega- only abstractly and potentially, but tion and in this manner serves the pur- actually." pose of restoring the reality of law. Does this interpretation of punish- Strictly speaking, punishment not ment exclude that a rational purpose merely re-establishes law as it existed is attached to it, in the sense that pun- before it was violated by the criminal ishment is also used as a means to indeed, but it also transforms it from the fluence the criminal and society? Hegel state of abstractness to that of concrete- objects that this would amount to deny- ness. Hegel develops this idea in a ing the freedom of will and to treating highly philosophical manner, emphasiz- man as we treat a dog. Since Hegel's ing logical necessity rather than social days, however, psychologists have reality. But if we translate his philo- found that differences between man .qophical terminology into sociological and dog-and even neurotic rats-are language, the result is not such bad not as far reaching as they may appear sociology after all. We might-put it to be. this way: Criminal law, as all law, has Relative Theories its social reality in its practical application and enforcement. A legal act According to absolute theories as which is never violated and therefore they are exemplified in Kant's and never e.nforced exists only in the books Hegel's views, punishment looks back and has, in this sense, merely abstract to the past, so to speak, being a reac- existence. The fact that it is never tion of society to an occurrence that has broken shows that it does not ordain taken place in the past. As viewed by anything which would not be done at relative theories, however, punishment any evnt. Therefore, such an act is looks into the future, being an attempt not a social Force or control factor, for at exerting sonic kind of control over no force is so formidable that It does conditions which arc conducive to not give r1se to occasional revolts. A criminal actions. Since lese latter law which is never broken-and a law theories consider punishment as a which is always broken-exists only means of crime prevention, they are on paper. also called "prevention theories." It is WERNER S. LANDECKER

customary to distinguish among them with the fact that the pleasure which "general prevention" theories from he might derive from the act would be "special prevention" theories, depend- more than balanced by the discomfort ing on whether punishment is consid- attached to it by the law.' It is the ered a means to influence the general threat of punishment which, according public or the individual criminal. to Feuerbach, is.the agent of deterrence; the execution of the penalty has GENERAL PREVENTION only a secondary place in the balance An outstanding figure among the ad- of pleasure and pain, since it merely vocates of general prevention theories affirins the threat by its fulfilment. is Anselm von Feuerbach (1775-1833). SPECIAL PREVENTION Feuerbach has gained fame as the 1. Deterrence author of the Bavarian Penal Code of 1813, one of the greatest legislative While Feuerbach emphasized the de- achievements in the history of criminal terrence of the general public from vio- law. This code is a practical applica- lating the law, other German penolo- tion of Feuerbach's penal theory, which gists aimed at preventing the individual is known as the "theory of psycholog- criminal from continuing his criminal ical coercion." career. Among the advocates of "spe- Feuerbach realized that the use of cial prevention" theories, Karl Ludwig punishment as a means of crime pre- Wilhelm von Grolman (1775-1829) vention presupposes a notion of the agreed with Feuerbach that the insti- causes of crime. We cannot prevent tution of punishment is justified by its crime unless we know how it origi- deterrent effect. He disagreed from nates. Like the Italian Beccaria and him, however, in deriving this effect the Englishman Bentham before him, not soinuch from the threat of punish- Feuerbach explains crime in terms of ment as from its actual infliction. the pleasure principle. Man is moti- Furthermore, he believed that the de- vated to commit crimes by the pleasure terring effect is not directed against which he anticipates from the criminal the populace in general, but against act or from its results. In order to pre- the individual offender who undergoes vent crimes it is necessary to counter- punishment.6 Punishment, according to act the impulse to commit the deed with Grolman, has the purpose of deterring an impulse to abstain from it. There- the offender from committing criminal fore, the pleasure derived from the act acts in the future. Being a means 'of must be outweighed by the expectation influencing the individual offender, of pain resulting from it. Thus, the punishment, as Grolman sees it, must threat of punishment functions as a be proportional to the needs of the means to impress the potential offender individual who is subjected to it. Thus,

5 Anselm Ritter von Feuerbach, Lehrbuch des C. L von Bar, A History of Contihental Criminal peinlichen Rechts, 13th ed., Giessen, 1840, §13. Law, transl. by J. S. Bell and others, Boston, 6 K. L. W. von Grolman, Grundsaetzeder Krim- 1916, pp. 427 f. inalrechtswissenschaft, 1798. On Grolman see CRIMINOLOGY IN GERMANY

Grolman's theory of punishment has undesirable habits be broken by condi- cleared the way for more recent trends tioning the offender to opposite habits. toward the individualization of punish- Although Krause did not consider habit ment. Nevertheless, it must be realized formation but the reformation of the that he fell short of modern penolog- will of the offender as the ultimate goal ical ideas in that his individualized of penal education, he recognized that treatment aimed merely at deterrence, only through habit formation could the and that he did not recognize the nec- offender be made "to will the good." essity to change attitudes by means of more therapeutic devices. 3. Social selection

2. Reformation To the above considered penological theories, which in one form or another The therapeutic point of view, from have persisted in German criminology which punishment appears as a means until recent times, the contemporary of reforming the criminal, was strongly criminologist Hans advocated in German penology by a von Hentig has group of writers who followed the lead added a theory of punishment which of the philosopher Karl C. F. Krause proceeds from an entirely different (1781-1832). Krause denied the exist- point of view. Von Hentig, formerly ence of criminal tendencies as inherent Professor of Criminal Law and Crim- characteristics of offenders and thus inology at the University of Bonn in laid the basis for a sociological ap- Germany and now at the University proach to the problems of crime pre- of Colorado, attempts to apply Darwin's vention. He believed that criminal hypothesis of natural selection to pen- behavior results from environmental ological theory. According to Darwin, conditions to which the offender is ex- evolution is a process of selection, in posed,; and by which the criminal will which those individuals survive who 7 is formed. Therefore, the most thor- are best adapted to the conditions of ough method of preventing crime is to life. Furthermore, individuals having counteract these evil influences by edu- this 'advantage over others have the cating the criminal.8 Thus early in the best chance of procreating their kind. nineteenth century Krause anticipated Consequently, useful variations become modern trends in penal psychology ultimately fixed and thus become char- when he stated that an essential part of penal education is habit formation. acteristics of the species. The offender must be habituated to Von Hentig believes that punishment what Krause calls "the. good." Since is an agent in this process of selection. crime is the product of acquired habits, "Criminal jurisdiction," he says, "must crime prevention requires that these- work out a type of man who fulfills the

7K. C. F. Krause, Das System der Rechtsphilo- man prisons prior to the Hitler r4gime is given sophie, ed. by K. D. A. Roeder, Leipzig, 1874, pp. by Werner Gentz, "The Problem of Punishment 303 ff. in Germany," Journal of Criminal Law and s An account of educational methods in Ger- Criminology,vol. XXI (1931-1932), pp. 873-894. 556 WERNER S. LANDECKER conditions of human symbiosis." 9 Pun- tinguish various purposes of punish- ishment affects the chances of survival ment. It is Franz von Liszt (1851-1919), and propagation of the offender by one of the most outstanding men in lowering the conditions of his exist- the history of German criminology,10 ence. It leads thus to the result, as to whom we owe such a theory of pun- von Hentig states, that the "wild" va- ishment. Von Liszt, who was a cele- riety of man, the one afflicted' with brated teacher of criminal law at the criminal tendencies, will gradually dis- Urliversity of Berlin, gained interna- appear, and that a socially desirable tional reputation as the founder of the mentality will spread among men. sociological school of criminology in Besides the selective function of pun- Germany. Together with Prins in Bel- ishment, reformation of the criminal is gium and van Hamel in Holland, he considered only a secondary and sup- founded in 1889 the "International plementary goal. Punitive measures Criminalistic Association," which was should aim at reform in cases where devoted to the study of crime as a so- the criminal is amenable to correction, cial phenomenon and to the promotion and where selection would unduly of a theory of punishment as a means decimate the available "breeding ma- of preventing crime." terial." Similarly, von Hentig does Von Liszt's penal theory is based on not deny the deterring effect of punish- the principle that the object of punishment, but he considers intimidation ment is not the crime, but the criminal. merely a preliminary step in the social Therefore, he claims thht the penalty process of selection. In Von Hentig's should not be determined by the effect opinion, man is born either with or with- of the deed committed, but by the per- out criminal tendencies. To increase the sonality of the offender. 2 That aspect number of those who are born without of personality which is significant for them is the goal of punitive selection. the infliction of punishment is the greater or lesser dangerousness of the 4. Deterrence, reformation and offender to the maintenance of social isolation order.'3 From this point of view von While the theories discussed above Liszt arrives at a threefold classifica- are unitary in the sense that they em- tion of criminals; he distinguishes be- phasize a single aim of punishment as tween "acute criminals," "incipient either exclusive or predominant, a chronic criminals," and "chronic crim- more refined penological theory cannot inals." In the case of an acute crime, fail to recognize differences in kind the offender is moved to his deed by among offenders and accordingly dis- external conditions which have led to

9 Hans von Hentig, Punishment;Its Orion,Pur- in the Journal of CriminalLaw and Criminology, pose and Psychology, London, etc., 1937, p. 131. vol. II (1911-1912), pp. 22-27. LOSee Adalbert Albrecht, "Professor Franz von 12Franz von Liszt, "Die psychologischen Liszt," Journal of Criminal Law and Criminol- Grundlagen der Kriminalpolitik," in Strafrecht- ogy, vol. 11 (1911-1912), pp. 168-170. liche Aufsaetze und Vortraege, Berlin, 1905, vol. 11 The work of the association Is described by II, p. 170. the son of one of its founders, J. A. van Hamel, 13 Von Liszt, op. cit., p. 170. CRIMINOLOGY IN GERMANY a momentary excitement or to an emer- THE NATIONAL SOCIALIST CONCEPTION gency situation. Under the influence OF PUNISHMENT' of these factors the individual commits With the advent of Hitlerism, Ger- a single offense which does not spring man penal theory and practice have re- from inveterate character traits and is turned to the idea of punishment as later deeply regretted. The chronic retribution.' This trend has found its crime, on the other hand, is the product legal expression in an act in which of deeply rooted tendencies of the of- penal servitude is called a means to fender, which may or may not have make the offender atone for the wrong their origin in environmental condi- he has committed. 15 Accordingly, in tions. If the deed is the expression of an official publication of the National a criminal tendency which is in the Socialist Party, 0 punishment is defined process of development without having as "retribution for the offense by an yet taken possession of the personality injury imposed upon the offender." of the offender, von Liszt speaks of an How can we account for this revival "incipient chronic criminal." of the dark ages in German penology? Von Liszt believes that in the case By writers who can be considered thor- of each of these three categories pun- oughly permeated with current trends ishment should fulfill a different pur- of thought in Germany we are told that pose. Those who might become "acute the idea of retribution is an essential criminals" should be impressed by the element of German culture. The de- threat of punishment as a means of mand for atonement, it is stated, is as deterrence. "Incipient chronic crim- old as the German people; this demand inals" are in a stage where they are will prevail as long as the German peo- still corrigible. Therefore, in their case ple will exist. Says the writer, Under- penal measures should aim at reforma- secretary of State in the German De- tion. Von Liszt believes that reforma- partment of Justice: "Maybe the desire tion can be achieved by habituation to to have the offender atone for his deed regular work. In his opinion, reforma- cannot be based on logical or philo- tion is frequently possible in the case sophical grounds, but it lives in us, and of juvenile habitual offenders. As an that is enough."'17 He finds the justifi- implication of the reformative character cation of punishment in what he calls of punishment he advocates the inde- "a refined urge for vengeance." Simi- terminate sentence. The "chronic crim- larly, in a publication of the official inal," on the other hand, is considered "Academy of German Law" it is incorrigible by von Liszt; accordingly, pointed out that the legal penalty he states that he should be isolated which is rooted in German legal "feel- from society. ing" is retributive in nature. In typical

14 See also Nathaniel Cantor, "Prison Reform ir Hans Frank (ed.), Nationalsozialistisches in Germany-1933," Journal of CriminalLaw and Handbuch fuer Recht und Gesetzgebung, 2nd ed., Munich, 1935, p. 1320. Criminology, vol. XXV (1934-1935), pp. 84-90. 17 Freisler, in Das kommende deutsche Straf- 15 Ordinance of the Minister of Justice of May recht, allgemeiner Tell, ed. by F. Guertner, Ber- 14, 1934, art. 48. lin, 1934, p. 14. WERNER S. LANDECKER

Nazi phraseology, the idea of retribu- which, because they depart from tradition is cdlled "one of the deepest world tional prejudices, lack in popular ap- wisdoms, an immortal principle of jus- peal. The fate of penology under Na- tice, springing forth from the elemen- tional Socialism teaches us the lesson tary depths of the uncrippled German that by merely aiming at political suc- folk-spirit."1'8 cess the- scientist forfeits the quest for What appears thus in the guise of a progress and, thus, science itself. flowery romanticism is in reality a II. methodical attempt to popularize Nazi penal methods and the Nazi system in THE LEGALISTIC APPROACH: THE general by an appeal to the most crude CLASSIFICATION OF OFFENDERS and cruel impulses of man. This poli- Throughout the history of criminal tical "philosophy" has found its most law we find that criminal acts have cynical expression in a discussion of been divided into various categories. capital punishment, written by the Un- Usually it has been the character of the dersecretary of State in the Depart- object attacked by the offender-such 19 ment of Justice, Mr. Freisler. After as life, property, or morality and de- having discarded other techniques of cency-which has served as the main execution, the writer finally arrives at criterion for the classification of pun- the alternative of the guillotine or the ishable deeds. This interest of the jur- axe. Which deserves preference? ist in categories of crime rather than Freisler decides for the axe because, as in the phenomenon of crime in general he says, "decapitation by axe better has led to the result that the person- suits the German spirit." ality of the offender also has-been ap- It is hardly necessary to point out proached in the light of the kind of of- that this is not the way of science. The fense committed by him. Here we ob- fundamental claim on which all science serve a significant difference between bases its justification and prestige is American and German criminology in to be an agent for progress. The ob- the study of the offender. American jective of penal science, in particular, criminology, not being influenced by is progress in penal treatment, i.e., to legal traditions, studies "the criminal" develop a procedure of treatment for or "the juvenile delinquent" as such. the offender which is of benefit for so- The American criminologist investi- ciety. If the penologist seeks to appeal gates causes of crime and means of re- to popular prejudices he allies himself form without differentiating between with those forces which are the most various categories of offenders accord- serious obstacles to progress. It is the ing to the legal classification of the deed politician who wishes to please the committed. The German criminologist, masses; the scientist, however, must on the other hand, follows the legal have the courage to advocate principles approach in establishing classes of

ls Schoetensack, in Schriften der Akademie LDSchriften der Akademie fuer Deutsches fuer Deutsches Recht, vol. I, Berlin, 1934, p. 90. Recht, vol. I, Berlin, 1934, p. 101. CRIMINOLOGY IN GERMANY crime, and directs his attention to the sub-classes: brutality crimes, offenses particular conditions under which the for self-expression (which includes various kinds of offenses are committed. such offenses as libel and blasphemy), If we state that criminologists in offenses by taking advantage of power, Germany follow the example of legal and exploitation offenses. Among of- tradition in that they, too, differentiate fenders for gain, Sauer again distin- between various kinds of crimes and guishes four types, which he calls the criminals, we do not mean to imply graspers, the cheaters, the traitors, and that they necessarily use the same cate- the exploiters. gories that have been established by the By means of these categories, Sauer legislator. On the contrary, the sociol- is able to establish relations between ogist uses a criterion of distinction offenses which from the point of view which differs from that employed by of criminal law appear as isolated from the jurist. While criminal law classi- each other. For instance, in Sauer's fies offenses in terms of the value at- classification assault and malicious mis- tacked, sociology determines the ele- chief are both brutality crimes, ments of the offense as a social action whereas possession of stolen property and establishes categories accordingly. and keeping a house of ill fame are An attempt at classifying crimes in both committed by the "exploiter" type. terms of their elements has been made The typological approach, as Sauer be- by Wilhelm Sauer, a contemporary lieves, broadens our knowledge because writer, in a book called "Criminal So- is throws light on related traits and ciology. ' 20 Criminology, according to identical tendencies.22 On the other Sauer, attempts to determine the es- hand, this approach makes it possible sential characteristics of every kind of to restrict generalizations to certain offense and to use them in establishing types of offenders in contradistinction types of crime, which can serve as a to other types for which they are not scientific basis for criminological in- valid. Such a generalization is Sauer's vestigations. The two main categories "law of inertia." This law applies only into which Sauer divides criminal acts to offenders for gain and states that the are offenses committed by acts of vio- offender does not turn away from his lence and offenses for gain. Acts that path unless he is urged to do so by co- belong to the first category are destruc- gent motives. Other generalizations at- tive in nature. Their main character- tempted by Sauer apply to all types istic is that the offender causes damage. of offenses. The most significant one Deeds of the second type are construc- is concerned with the frequency of of- tive in the sense that the offender acts fenses. The law formulated by Sauer 2 to achieve an advantage for himself. 7 states that an offense is committed the Under the heading of offenses com- more frequently, a) the more easily it mitted by acts of violence we find four is committed; b) the more difficult it

20 Wilhelm Sauer, Kriminalsoziologie, Berlin 21 Sauer, op. cit., p. 634. and Leipzig, 1933. 22Sauer, op,. cit., p. 22. WERNER S. LANDECKER is to control; c) the milder the deed is these studies is rather uniform; they judged; d) the more closely it is re- are based on a number of case his- lated to unpenalized or even legal ac- tories, usually between 100 and 200, tions; 23 e) the less the object of attack which are examined for the purpose of 2 is valued. 4 determining personal conditions of the The main advantage of the typolog- offender, such as sex, age, marital status, ical approach seems to be that it en- occupation, and religion; prevalent ables one to include in criminological types, such as occasional, habitual, or research the distinguishing character- professional offenders; and the situa- istics of each type. All the more it is tions in which the acts have been com- surprising that Sauer eventually re- mitted. The value of these studies con- lapses to the traditional manner of sists in making it possible to compare treating all types of offenses as iden- the conditions prevalent in each cate- tical. In his study of causative factors gory of offenders, and thus to arrive at he assumes that all offenses have the the conclusion that certain conditions same single cause, the "wish for ex- are either peculiar to some 6f them or ploitation." This wish, he states, is characteristic of criminal acts in gen- neither founded in an inherent dispo- eral. Such a concluding statement, sition of the offender nor produced by * which would co-ordinate the various the influence of environmental factors single pieces of research, has not thus upon him, but originates from his "free far appeared. will. ' 25 With this assumption Sauer III. departs from the realm of scientific investigation and enters into purely THE ANTHROPOLOGICAL APPROACH metaphysical speculation. The anthropological approach to the Another exponent of the typological study of crime and the criminal pro- approach to the study of the criminal ceeds from the assumption that crim- is Franz Exner, at present Professor at inal behavior has its counterpart in the University of Munich. Under his physical characteristics of the offender. direction, a number of investigations In German criminology we find two have *been made, in which classes of varieties of this school of thought. The criminals are studied from various first anthropological criminologists aspects. 26 Some of the groups dealt were followers of the Italian Lombroso with are murderers, receivers of stolen and adopted his theory that criminals goods, perjurers, robbers, and sex are distinguished by physical anomalies offenders. The procedure employed in of either atavistic or degenerative ori-

23 It is noteworthy that this hypothesis seems Hypothesis of Conforming Behavior," The Jour- to be borne out by socio-psychological research nal of Social Psychology, vol. V (1934), pp. in this country. Floyd H. Allport has established 141-183. and substantiated a "J-curve hypothesis," accord- 24 Sauer, op. cit., p. 799. ing to which there is a negative correlation be- 25 Sauer, op. cit., p. 779. tween thp degree of the deviation of an act from 26 These studies are published in the series a generally accepted standard and the frequency Kriminalistische Abhandlungen, which is edited with which it occurs. F. H. Allport, "The J-Curve by Professor Exner. CRIMINOLOGY IN GERMANY gin. Lombroso's main follower in Ger- study of physical details, such as the many was Hans Kurella, who published formation of the skull, jaw, ears, nose, his Natural History of the Criminal in and teeth, Kretschmer is concerned 7 types 1893.2 Kurella, although on principle with the human physique and its Moreover, he differs from a faithful disciple of Lombroso, de- in general. Lombroso in that his interest is not parted from his master's theory that focused on the criminal and his char- criminal characteristics result from de- acteristics. Nevertheless, his contribu- generation. Instead he assumed that tion is of significance for criminology, physical traits by which the criminal since some of his followers attempted is distinguished originate from a va- to apply his theory to the study of the among them he named riety of sources; criminal. prenatal diseases, cerebral and infan- tile paralysis, and other conditions of Kretschmer's main assumption is various kinds affecting the normal de- that constitutional traits and behavior 30 velopment of the individual. At the traits are correlated. The method by be- same time, the spread of Lombroso's which he determines the association tween constitution and behavior is the theories in Germany resulted in at- ideal-typical; that is to say, he estab- tempts to disprove his claims. Adolf lishes certain types of body-build and Baer, in particular, chief physician at behavior, any one of which is approxi- the Ploetzensee prison in Berlin, made mated by every individual, no indi- measurements of the inmates of this vidual being a perfect example of his institution and came to results which type. Kretschmer distinguishes three substantiate Lombroso's the- did not types of body-build: the asthenic, who 28 crime is not a sis. In his opinion, is tall and thin, with narrow shoulders, physical, but a social phenomenon. He lean arms with thin muscles, and a believes that whatever factors con- narrow chest; the athletic, who is mid- tribute to the origin of criminal be- dle-sized to tall, with broad shoulders, havior result, ultimately, from environ- 2 strong development of the musculature influences. 1 mental and narrow hips; and, finally, the pyk- While the early German studies in nic, who might be described best in criminal anthropology received impetus Kretschmer's own words: "Middle from abroad, later trends in this field height, rounded figure, a soft broad face were stimulated by a German scientist, on a short massive neck, sitting be- Ernst Kretschmer. Like Lombroso, tween the shoulders; the magnificent Kretschmer can be classified as a phys- fat paunch protrudes from the deep ical anthropologist. But while Lom- vaulted chest which broadens out 31 broso concentrated his efforts upon the toward the lower part of the body."

20 cit., pp. 410 f. 271H. Kurela, Naturgeschichtedes Verbrechers, A. Baer, op. Stuttgart, 1893. 30E. Kretschmer, Physique and Character, transl. by W. J. H. Sprott, New York, 1925. 28A. Baer, Der Verbrecher in anthropologi- 31 E. Kretschmer, op. cit.,p. 29. sober Hinsicht, Leipzig, 1893. WERNER S. LANDECKER

Kretschmdr's thesis is that these con- to criminal behavior and is more easily 34 stitutional types are paired with cer- reformable. Gustav Aschaffenburg tain mental types, abnormal as well as finds that the pyknic type is prevalent normal. On the one hand, he finds that among occasional offenders, while the schizophrenia is associated with the asthenic and athletic types have a asthenic and athletic types, and manic- larger share among habitual offenders. depressive insanity with the pyknic This seems to be compatible with a 3 type. These two abnormal mental con- contention by Sauer 5 that the cyclo- ditions, he assumes, are merely deri- thyme tends more to crimes of violence vations from two corresponding "nor- and brutality, the schizothyme to fraud, mal" mental dispositions. These normal embezzlement, receiving of stolen goods types he calls "schizothyme§" and "cy- and related offenses. clothymes." Consequently, the schizo- Statistical investigations support thymes are associated with the asthenic these contentions only in part. Two and athletic types, the cyclothymes studies have been published, each with the pyknic type. based on 100 cases, one dealing with What, actually, is the disposition of inmates of a German prison,36 the other the schizothymes and the cyclothymes? with murderers of Turkish descent in Typically schizothyme, we are told, are the Russian province of Aserbaidzan.3 7 the polite sensitive man,' the world- In both groups the proportion of pyk- hostile idealist, the cold masterful na- nics was considerably lower than that ture and egoist, and the dried and emo- of the other types. However, the Ger- tionally lamed. Among the cyclothymes man study does not substantiate the we find the gay chatter-box, the quiet assumption that pyknics commit acts humorist, the silent good-tempered man, of violence; rather, the athletic type the happy enjoyer of life, and the ener- appeared to be associated with such getic practical man.2 offenses. The author of the Russian Kretschmer's theory of the associa- study found-contrary to what one tion between physique and character would have expected-that among his has been very influential in Germany murderers the asthenics outweighed as well as abroad. Some of his followers any other type in number. He comes to have made the attempt to find rela- the conclusion that the asthenic commits tionships between constitutional types his act in a premeditated, insidious 33 and criminal behavior. E. Mezger manner, frequently in connection with reports that the pyknic type, being robbery, while the deed of the pyknic more sociable and adaptable, tends less results from a sudden impulse.

32 E. Kretsctmner, op. cit., pp. 207 ff. 35 W. Sauer, op. cit., p. 27. 33 "Die Bedeutung der biologischen Persoen- 36 Kurt Boehmer, "Untersuchungen ueber den lichkeitstypen fuer die Strafrechtspflege," Mittei- Koerperbau des Verbrechers," Monatsschrift lungen der Kriminalbiologschen Gesellschaft, fuer Kriminalpsychologieund Strafrechtsreform, vol. II (1929), p. 26. vol. XIX (1928), pp. 193-209. 34 "Kriminalanthropologie und Kriminalbiolo- 37 S. Blinkov, "Zur Frage nach dem Koerperbau gie," in Handwoerterbuchder Kriminologie, ed. des Verbrechers," Monatsschrift fuer Kriminal- by A. Elster and I-L Lingemann, Berlin and Leip- psychologie und Strafrechtsreform, vol. XX zig, 1933-36, vol. I, pp. 835 f. (1929), pp. 212-216. CRIMINOLOGY IN GERMANY

It is interesting to compare the find- What is the significance of Kretschmer's ings of these investigations with studies theory for the criminologist? The of juvenile delinquents which have thesis of an association between phy- been made by Willemse at two reforma- sique and character should be applied 8 tories in the Union of South Africa3 in the field of criminology with extreme He found the delinquency of asthenics caution; present-day psychologists do to be characterized by lack of energy, not recognize the existence of an entity susceptibility to influences, timidity, called "character." On the other hand cowardly acts, careful calculativeness, we know that the individual responds and a tendency to commit acts solitar- to stimuli by certain modes of reaction. ily. The delinquency of athletics does It can be expected that modes of re- not seem to be so well defined in char- action are associated with body-build, acter; Willemse stresses their self-con- since in reaction processes the physical fidence and egocentricity. The delin- organism plays a part. It is apparent quency of pyknics, finally, consists usu- that this must apply also to modes of ally in momentary aggressions, sensa- reaction which are classified as crim- tional joy-rides with stolen motors, inal behavior. It should not be over- forming of criminal gangs, sexual ex- looked, however, that there are a va- cesses, and alcoholic intemperance. riety of other factors which contribute In the United States, Kretschmer's also to the formation of behavior pat- approach exercised influence on Earn- terns. Science is not yet in a position est Albert Hooton, a Harvard Professor to determine the share of the consti- who recently made an attempt at re- tutional factor as compared with others. viving the anthropological study of the Few criminologists, if any, would as- criminal in this country which re- sume that the constitutional factor (in ceived wide attention. Hooton applies Kretschmer's sense) is ever responsible Kretschmer's classification of physique for a tendency to criminal behavior. in a modified manner; his categories On the other hand, many criminologists are entirely based on height and would probably agree that in those weight. He believes that he has dem- cases where a criminal tendency has onstrated conclusively that constitu- become established the constitutional tional types are associated with certain factor frequently determines the type offenses. The most important of his of criminal behavior in which this findings are the relationship of short- tendency is materialized. ness and slenderness to burglary and larceny and to frequency of previous IV. conviction, of tallness to murder, and THE PSYCHOLoGIcAL APPROACH a predilection for sex crimes shown by The psychological study of crime has 0 the short, fat men. been cultivated in Germany for a long In conclusion it might be asked, time. In a comparison of the contribu-

38 W. A. Willemse, ConstitutionalTypes in De'- 39E. A. Hooton, Crime and the Man, Cam- linquency, New York, 1932. bridge, Mass., 1939, p. 98. WERNER S. LANDECKER tions of the three principal continental object more acceptable to the indi- countries it has been said that in each vidual. (6) Consequently, in cases of them a special trend has always been where a repression has taken place be- noticeable-Italy emphasizing the an- havior can be explained only by uncov- thropological side of crime, France the ering the repressed desire and its re- social side, and Germany the psycho- lation to its substitute in the conscious. logical side.4" At present, German The application of this theory to the writers do not emphasize the psycho- study of the criminal is apparent; to logical aspect of crime any longer,4 understand a criminal act it is neces- and many of the earlier studies have sary to determine motivations which been rendered obsolete by more recent are buried in the unconscious of the developments in the field. Neverthe- criminal. Furthermore, these repressed less, a number of contributions made motivations serve also as a means to by German psychologists during the explain the phenomenon of crime in last few decades are still of great sig- general. Franz Alexander and Hugo nificance for criminological investiga- Staub, two leading exponents of the tion. Freudian school of criminology, find There is hardly a school of thought the criminal to be distinguished from in German psychology that has exer- the non-criminal by a difference in re- cised greater influence upon the study pression processes.42 The criminal does of the criminal than the psychoanalytic not deviate from the rest of the popu- movement, which proceeded from the lation by inherent, hereditary traits; teachings of Sigmund Freud (1856- rather, criminal behavior is the out- 1939). The basic points of Freud's the- come of developmental conditions by ory which are of interest in the present which the individual has been pre- context can be summarized as follows: vented from adjusting himself to"so- (1) Freud holds that the human mind ciety. -According to the psychoanalytic is in part made up of processes of which school of.thought, every individual, re" the individual is unaware; these he gardless of whether he develops into calls "the unconscious." (2) The un- a criminal or not, is born with the conscious is largely formed by expe- mental equipmpent of a criminal; that riences during the early years of life. is to say, he is born with impulses (3)" Its content is to a great extent of which are not in harmony with the either a sexual or an egotistic character. requirements of social life. The normal (4) It consists of material which would individual is able to repress these im- prove painful at the conscious level and pulses and to transform them into so- which enters the unconscious by means cially acceptable striving; the future of repression. (5) The repressed object criminal fails in carrying out this ad- is substituted in the conscious by an justment. 3 Whether or not the indi-

40 Maurice Parmelee, editorial preface to Gus- 42 F. Alexander and H. Staub, The Criminal, tav Aschaffenburg, Crime and It Repression, the Judge and the Public, transl. by G. Zilboorg, transL by A. Albrecht, Boston, 1913, pp. X11 f. New York, 1931, p. 34. 41S below part VI. 43 Alexander and Staub, ibid. CRIMINOLOGY IN GERMANY vidual is able to repress his original conditions which have been found to drives and to find socially harmless be correlated with criminal behavior. outlets for them depends on the educa- Such factors of frustration are poverty, tion which he receives. It is, therefore, unsatisfactory occupational status, the social factor of the bringing up meager education insofar as it lowers which is of decisive importance in the the earning capacity, youthful age origin of crime as seen by the Freudian where lacking earning power is a school. source of frustration, smaller than av- The need for repressing a desire erage stature, physical ugliness and arises only if it is not eliminated by deformity, membership in socially in- being fulfilled. By experiencing an ferior racial and national groups, ille- interference in materializing his de- gitimacy, unsatisfactory marital condi- sires the individual is frustrated. tions, and unwholesome home condi- Freud's followers claim that criminal tions and the resulting frustration of behavior results from desires which the child. The volume of crime is con- have not found a socially acceptable ceived of as a function of the inter- substitute and which, therefore, have action and balance between the degree become frustrated. A group of Amer- of frustration, on the one hand, and the ican sociologists and psychologists, who degree of anticipated punishment, on are greatly influenced by Freud, have the other. The amount of crimes com- indeed emphasized the function of frus- mitted in a society depends on the ex- tration in the causation of crime.44 tent to which the effect of frustration These writers have attempted to sub- is balanced by anticipated punish- 47 stantiate their hypothesis that frustra- ment. tion always leads to aggression.4 5 They In its attempt at determining the claim that in the case of a frustration causes of crime the psychoanalytic the individual reacts to this experience school is at its best in cases where by an act of aggression, which is not criminal acts seem to lack rational mo- necessarily directed against the agent tivation; i.e., where they cannot be that caused the frustration. This as- traced to motives which ordinarily un- sumption is utilized also in the explan- derlie acts of the same kind. It has ation of crime, since crime is harmful been found, for instance, that some- to one or more members of the group times thefts are committed although the in which it is committed and is, there- thief has no use for the stolen object. 48 fore, an act of aggression. In such cases, the criminal act is fre- In their attempt to trace the origin quently an outlet for sexual wishes of crime to the influence of frustration, and thoughts which the individual has the authors stress elements of it in attempted to repress. 4 Likewise, fire-

44John Dollard, Leonard W. Doob, Neal E. 47 Op. cit., p. 141. Miller, 0. H. Mowrer and Robert R. Sears, Frus- tration and Aggression, New Haven, 1939, esp. 4s William Healy, "Psychoanalytic Contribu- pp. 110-141. tions to the Understanding and Treatment of 45 Op. cit., p. 1. Behavior. Problems," The American Journal of 46 p. cit., p. 111. Sociology, vol. XLV (1939-1940), pp. 422 f. WERNER S. LANDECKER

setting frequently can be traced to While the Freudian school traces 4 sexual urges. In a great number of crime to a variety of unconscious mo- cases, criminal behavior is a means to tivations, the followers of Alfred Adler compensate a sense of inferiority. The (1870-1937) consider crime as the criminal tries to overshadow his tend- product of a single impulse. For Ad- ency to depend on others and traces of ler, the primary agent in human be- femininity by displaying toughness and havior is the wish to gain superiority aggressiveness. 0 Another motivation, over others. If a person experiences also unconscious, is what is called the a feeling of weakness or inferiority, his "spite reaction." The offender finds desire for superiority compels him to himself hurt or neglected by somebody relieve his feeling of inferiority by an whom he considers responsible for him- effort to excel. The intensity of this self and takes revenge by disgracing effort.is determined by the degree to this person by his own criminal acts. " which he is affected by an inferiority Another typical example of psychoan- feeling. Consequently, an extreme alytic interpretation is the "criminal sense of inferiority will lead to an ex- out of a sense of guilt." Criminal acts, aggerated attempt at compensation. it is maintained, are sometimes committed because the offender is burd- According to Adler's school of "In- ened with an unconscious feeling of dividual Psychology," crime is an over- guilt.5 2 Such a feeling of guilt may have compensation for a deep feeling of in- its origin in forbidden wishes, possibly of feriority. Adler, himself, in a paper an incestuous character, which the of- on juvenile delinquents,5 4 explains a fender has repressed in his early child- certain case of theft as a means of hood. In order to relieve this feeling compensation for a feeling of -inferi- of guilt, the individual seeks punishment, the criminal act being a means ority, which the delinquent had ac- of attaining this desired goal. Again, quired due to the fact that his parents in other cases the individual is unable used to keep drawers and containers to bear the responsibilities and fric- locked from him. Another example is tions which everybody has to undergo the case of a boy who had experienced in the state of freedom and commits a severe frustrations because his younger criminal act in order to get into jail, sister was manifestly preferred to him. where he can live in a condition of The outcome was that he stole money dependency and routine, without being from his mother with which he bought forced to make his decisions for him- candy. Part of this he distributed 53 self. among other boys in order to compen-

49 W. Healy, op. Cit., p. 422. 52 F. Alexander and H. Staub, The Criminal, 50 Franz Alexander and William Healy, Roots the Judge and the Public, pp. 112 ff., 159 ff. 53 Alexander and Healy, Roots of Crime, p. 67. of Crime, New York and London, 1935, pp. 67 54 Alfred and 223 ff. Adler, "Demoralized Children," in The Practice and Theory of Individual Psychol- 51 Alexander and Healy, op. cit., p. 67. ogy, London, 1933, pp. 346 f. CRIMINOLOGY IN GERMANY sate his inferior role at home by gain- achieving something, the satisfaction of ing prestige elsewhere.5 pursuing and attaining a goal; he has Of particular interest for the sociolo- lost respect for his performance and gist is an attempt to use Adlerian prin- instead acquired a feeling of being a ciples as a means of determining socio- small and insignificant particle within cultural causes of crime. This attempt a total structure. The spread of this has been made by Professor Gotthold feeling of insignificance and inferiority Bohne, Director of the Criminological is accompanied by an equally widening through acts Institute at the University of'Cologne. 6 need for compensation His objective was to explain an increase which give control, prestige or-at The mounting in the rate of capital crimes in Ger- least-conspicuousness. demand for such compensation, as a many, as well as an increase in reck- corollary of present cultural trends, lessness in the commission of crimes, is in Bohne's opinion responsible for particularly a growing lack of regard to criminal activ- for human life. Bohne advances the the increasing resort ities and the growing recklessness in hypothesis that this trend can be accounted for by the declining influence their execution. of individualism in modern life. Until If this analysis is correct for condi- the middle of the nineteenth century, tions in Germany-and it seems that it history had witnessed a breakdown of reveals at least a contributing factor in authoritative controls over the indi- the formation of criminal trends-then vidual. Man had become more and it must all the more be applicable to more emancipated from communal re- American conditions. On the one hand, strictions and, in accordance with this the process of standardization and development, had increasingly learned mechanization seems to have acquired to recognize the intrinsic value of the greater impetus in the United States human personality. This trend was re- than abroad. On the other hand, com- versed through the impact of the in- petent observers have pointed out that dustrial revolution. Again social and in this country more than anywhere economic factors of control arose, life else the criminal enjoys a sort of mor- became more and more industrialized bid prestige. There are strata of the and mechanized, and as a result the population that look at the criminal individual was once more deprived of with a kind of hero worship.5 7 Under his initiative and his role as an inde- such conditions crime lends itself easily pendent and self-sufficient unit. Be- to an interpretation which stresses its ing degraded to a mere wheel in an compensatory elements. intricate industrial machinery, the in- Obviously, the Adlerian approach, dividual has lost the satisfaction of especially as it is represented by

s5 Alfred Adler, op. cit., pp. 347 f. Other cases trachtungen zu den Kapitalverbrechen der letzten are analyzed from the point of view of individual Zeit," Deutsche Juristen-Zeitung, vol. XXXIII psychology by Alexandra Adler, Guiding Human (1928), pp. 1502-1507. Misfits, New York, 1938, pp. 44-54. 57 F. Alexander and W. Healy, Roots of Crime, 50G. Bohne, "Individualpsychologische Be- pp. 282 f. WERNER S. LANDECKER

Bohne, does not overlook the social nourishment. 6' He proceeds with an bases of crime. In spite of the psycho- analysis of the social causes of crime. logical point of departure, the social Among these he discusses the change and cultural setting of crime finds due. in social activities and conditions under recognition. This is not quite so evi- the influence of seasonal changes of dent in the case of the psychoanalytic weather, race and religion, urban and school of criminology. But although rural environment, occupation, the con- the psychoanalyst emphasizes psychic sumption of alcohol, prostitution, gamb- aspects of crime, he does not assume ling, superstition, economic conditions, that by this approach the causes of and certain social situations, such as, crime are determined in their entirety. crises and strikes. Following his analy- Alexander and Healy recognize that a sis of social factors, he deals with the complete explanation of crime must personal and psychic causes of crime, proceed from the sociological as well and concludes with. a discussion of the as the psychological point of view. 5" treatment and' prevention of crime. Both social and psychic factors are at This work, therefore, is distinguished work in producing criminal behavior. not only by its sociological approach to As long as this fact is recognized by the study of crime, but also as the only the psychologist and the sociologist, contribution by a German writer which the specialization of each in restricted in its scope and organization resembles aspects of crime can only be welcomed. an American textbook on criminology. V. Recent sociological research in the field of crime has been influenced THE SOCIOLOGICAL APPROACH greatly by American patterns. It has Sociological research in the field of been the merit of Franz Exner to have criminology had received a promising directed the attention of German start in Germany as early as 1902, when scholars on current trends in American the first edition of Gustav Aschaffen- criminology. Exner became acquainted burg's classic Crime and Its Repres- with research in the United States sion'0 was published. Since then, how- upon the occasion of a journey to this ever, there has been a surprising country in 1934. After having returned scarcity in original contributions of this to Germany, he published a "Criminal- character.6 0 The point of view on which istic Report on a Journey to Amer- Aschaffenburg's work is based is truly ica, '' 62 where he raises the question sociological. Crhie, he says, is a prod- what Germany can learn from the uct of human society; only within so- United States in the treatment of ciety does crime originate, and from crime. His answer is:. "About nothing its connection to society it draws fresh in the field of penal law and procedure,

5S Alexander and Healy, op. cit., pp. 273 ff. 1930) is especially noteworthy. 59 In 1913, it was made available in an English 61 Aschaffenburg, op. cit., p. 5. translation. 62 F. Exner, "Kriminalistischer Bericht ueber 60 Among the exceptions Moritz Liepmann's eine Reise nach Amerika," Zeitschrift fuer die book on War and Crime in Germany (Krieg und gesamte Strafrechtswissenschaft,vol. LIV (1935), Kriminalitaet in Deutschland, Stuttgart, etc., pp. 345-393, 511-543. CRIMINOLOGY IN GERMANY some things of value in the field of have given little attention,66 i.e., What punitive treatment, and a great deal in aspects of crime are the subject-matter the field of criminological research."'6 3 of sociology, and how does the socio- There are two features of American logical approach to crime differ from criminology by which Exner was espe- other approaches? It was Franz von cially impressed, and which he conse- Liszt 67 who in his famous article "Crime quently attempted to transplant to Ger- as a Socio-Pathological Phenomenon" 8 many: the ecological investigation of first determined the scope of a criminal crime and the prediction of success or sociology. According to von Liszt, failure in parole. In the line of ecology, crime appears from the biological and Exner instigated a study in which the psychological points of view as an attempt was made to show the exist- event in the life of the individual, and ence of a "delinquency area" in the must from these points of view be ex- city of Munich after the fashion of Clif- plained by the characteristics of the ford Shaw's research in Chicago. 4 The individual. From the angle of the result was negative; the author did not sociologist, on the other hand, crime is succeed in demonstrating that cases of studied as an event in the life of so- delinquency are concentrated in a cer- ciety and explained as a product of tain part of the city. Furthermore, social conditions. Both approaches, in stimulated by methods of determining von Liszt's opinion, are not mutually the probability of recidivism, which exclusive but supplement each other. had been developed in this country by Every crime is the product of indi- Ernest W. Burgess, Sheldon and Eleanor vidual traits of the criminal, on the one T. Glueck, and others, Exner inaugu- hand, and of social conditions surround- rated similar research in Germany." ing the offender, on the other. Thus, The study of German delinquents von Liszt comes to the conclusion that showed that the factors associated with the causes of crime can be found only by recidivism were largely identical with a study of both the social and the indi- those found by American criminol- vidual aspects of crime; among these, ogists. however, he considers the former by The main contribution of German far more significant than the latter. scholars to the sociology of crime lies Does the interrelationship of indi- in the fact that they have provided its vidual and social aspects of crime imply theoretical foundation. In particular, that the sociologist must concern him- they have concerned themselves with self with both? In a later publication a question to which American writers von Liszt made clear that this is not

63 F. Exner, op. cit., p. 345. 66 An exception is: Jerome Michael and Mor- 64 Klaus Seibert, Die Jugendkriminalitaet timer J. Adler, Crime, Law and Social Science, Muenchens in den Jahren 1932 und 1935, Krim- New York, 1933, pp. 77-87. inalistische Abhandlungen, ed. by F. Exner, vol. 67 Cf. above p. 12. XXVI, Leipzig, 1937, pp. 44-62. 65 F. Exner, "Die Prognose bei Rueckfallsver- 68'"Das Verbrechen as sozial-pathologische brechern," Mitteilungen der Kriminalbiologi- Erscheinung," in F. von Liszt, Strafrechtliche schen Gesellschaft, vol. V (1938), pp. 43-53. Aufsaetze und Vortraege, vol. H, pp. 230-250. WERNER S. LANDECKER

the caseP9 The individual aspects of "the science which attempts to describe crime are of interest only if a certain crime as a social phenomenon and to deed of a certain offender is considered; understand it as a function of social only then is a study of the offender conditions." Criminal sociology is con- from the anatomical, physiological, cerned with crime as a mass phe- psychological and genetic points of nomenon, whereas criminal psychology view significant. It is the physician, the deals with the individual crime. Never- judge, the psychologist, and the prison theless, Exner holds that. a'single crime officer who are concerned with the sin- also can be studied in a sociological gle offender; but not the sociologist. manner, i.e., by an investigation of the The sociologist, as von Liszt points out, social situation from which the deed studies a series of crimes, composed of has originated. While, thus, criminal innumerable instances, which as a sociology is concerned not only with whole is typical for society in general social conditions but also with indi- or a certain social organization. In the vidual cases, likewise criminal psy- explanation of such a series of crimes chology cannot neglect to consider mass it is irrelevant to ask why the indi- phenomena. Certain data cannot be vidual criminal happened to commit his studied from the psychological point of act; instead, the explanation can be view but by mass observation. For in- found only in social, political or eco- stance, studies of the psychology of the nomic conditions, by which a whole sexes or of age groups are possible only group of individuals is affected. Event- if a great number of cases are used. ually, von Liszt was led to abandon Thus, Exner concludes that sociology the view that crime must be accounted has to pay attention to the single case for by a combination of social and indi- also, and likewise psychology to crime vidual factors. Rather, he assumed as a mass phenomenon. Yet, he main- that the study of either the individual tains that there remains a distinct dif- or the social factor must prevail, de- ference between the two. The psy- pending on whether one is concerned chologist considers crime in its intra- with a single crime-which in his human conditions, i.e., as a phenomenon opinion is not the matter of the soci- rooted in the individual mind; also in ologist--or with crime in general and those cases where he studies a whole its various types. mass of crimes his interest is focused' If we compare von Liszt's definition on the psychic aspects of these crimes. of criminal sociology and its subject- For the sociologist, however, crime is matter with the views of a more recent a social phenomenon, which he at- 70 writer, such as Exner, we find some tempts to study in its social conditions. divergence of opinion, although von He is never concerned with the de- Liszt's influence is still noticeable. scription of a single case for its own Exner defines criminal sociology as sake. Single cases serve only as means

60 F. von Liszt, "Die gesellschaftlichen Fak- 70F. Exner, "Kriminasoziologie," in Hand- toren der Kriminalitaet," op. cit., pp. 433-447. woerterbuch der IMiminologie, vol. II, pp. 10-26. CRIMINOLOGY IN GERMANY of studying the influence of social the stress on biological factors is in factors upon the individual and thus line with the views of the National of determining, ultimately, the connec- Socialist Party which is the controlling tion between such factors and crime in power in Germany. The central theme general. of National Socialism is the doctrine of In conclusion, it seems that von the determination of human behavior Liszt's main contribution to the defini- by "blood" and "race." According to tion of criminal sociology as against this assumption, the basic personality criminal psychology consists in the idea pattern of the individual results from that the two branches of criminology deal inherited traits which are either com- with different problems. To this Exner mon to the whole race or pecul iar to has added that sometimes the study of a more limited biological group, such different problems requires the investi- as the family. Under a dictatorial sys- gation of identical material; but al- tem such as it is established by Na- though both sciences overlap in their tional Socialism, research is permitted use of data, they differ because data only if it proceeds on the basis of the which in one science are studied for political doctrine in power; the task of their own sake serve in the other only research, then, is to give scientific sup- as a means to an end. port to the officially accepted hypothesis. This being the case, it is VI. easily understood why a leading exponent of the school of criminal biology THE BIOLOGICAL APPROACH could state: "Criminal biology has con- The biological approach to the study tributed its share to the support of the 7' 2 of crime stands at the end of this survey authoritarian form of government. -because it ispredominant in Germany Under modern dictatorships there is an at the piesent time. Its advocates main- official and solely acceptable school of tain that crime is mainly the outcome thought in every field of science in gen- of inherited dispositions. There are two reasons why present-day crim- eral and in criminology in particular. inology in Germany places emphasis This is not only the case with the on the theories of hereditary-biological biological approach in Germany; we causation. First, this trend can be ex- find that the same holds true for Soviet plained by the fact that a major part Russia where, in accordance with the of contributions to criminological re- Marxian ideology, crime may be studied search in Germany has been made by only in terms of the socio-economic 3 physicians and psychiatrists.71 Second, approach.7

71 See Nathaniel Cantor, "Recent Tendencies gemeinschaft," Mitteilungen der Kriminalbio- in Criminological Research in Germany," Jour- logischen Gese lschaft, vol. V (1938), p. 10. nal of CriminalLaw and Criminology,vol. XXVII 73 Cf. Nathan Berman and E. W. Burgess, "The (1936-1937), p. 782. Development of Criminological Research in the .2 Adolpf Lenz, "Die Persoenlichkeit des Tae- Soviet Union,". American Sociological Review, ters und sein Verschulden gegenueber der Volks- voL 11 (1937), p9.216 f. WERNER S. LANDECKER

Criminal biology, as defined in the pressives, schizophrenics, epileptics, basic text,7 4 is "the systematic study of and psychotics; on the other hand, the the personality of the offender and of percentage of the feebleminded in the his offense as an individual experi- families of the recidivists was 23.1% ence." For the study of personality as against 6.6% in the families of the from the point of view of criminal bi- non-repeaters. In general, Stumpfl ology the hereditary background of the found the families of the recidivists to offender is of primary importanceY' 'be characterized by a spirit of enter- Accordingly, the objective of research prise, unsteadiness, and a desire for in criminal biology has been to demon- independence. The families of non- strate the significance of the hereditary repeaters, on the other hand, were pre- factor in the formation of the criminal dominantly pedantic, co-operative, con- personality. servative, and stationary. The typical criminal personality is Stumpfl arrived at the conclusion supposedly found among habitual of- that crime is the product of certain fenders, whereas individuals who have character traits which are inherited. committed offenses not more than once The validity of this conclusion is greatly are considered to have succumbed to impaired by the unscientific manner in environmental influences. To bear out which the data have been gathered, this thesis, the psychiatrist Friedrich which is quite typical for the investi- Stumpfl studied 195 recidivists, who gations of family histories undertaken had served at least five penal sentences, by criminal biologists. All too fre- and compared them with a control quently the author received his infor- group of 166 former offenders who had mation from unreliable sources, as evi- been convicted only once and since denced by phrases such as "he is sup- then refrained from criminal acts for posed to have been . . . " "people say a period of at least 15 years.7 6 In order of him . . . ," "but there are also peo- to show the role of heredity in the ple who say . . . ," or "somebody who background of both groups, the author knew him well said. . . ." Data ob- investigated the family history of each tained in such a fashion are not the offender. He found that in the families kind of material on which scientific con- of the recidivists the number of crim- clusions can be based. inals was considerably larger than in The author of another study at- the families of the non-repeaters; e.g., tempted to determine the role of the percentage of criminal brothers heredity and environment in the forma- was 37.0% as against 10.8%, and of tion of 500 recidivists. 77 This writer cousins 17.5% as against 6.3%. Re- determined the number of those who garding mental diseases, there was no were "mentally inferior," found that significant difference for manic de- they constituted 80% of his recidivists, 74 Adolf Lenz, Grundriss der Kriminalbiologie, 77 Karl Schnell, Anlage und Umwelt bei 500 Vienna, 1927, p. 20. Rueckfallsperbrechera, Kriminalistische Ab- 75 A. Lenz, op. cit., p. 22. handlungen, ed. by F. Exner, vol. XXII, Leip- 76 F. Stumpfl, Erbanlage und Verbrechen, Ber- zig, 1935. lin, 1935. CRIMINOLOGY IN GERMANY and thus arrived at the "conclusion" vironment.7 9 Such self-restriction is that in 80% of his cases crime was wise indeed; the avoidance of hasty caused by inherent traits. That mental conclusions is a great merit of this work characteristics can result from environ- as compared with the studies men- mental influences also is evidently not tioned above. That criminal parents recognized under the reign of the Na- have criminal offspring is not neces- tional Socialist doctrine. sarily due to the hereditary transmis- More judicious in its conclusions is sion of criminal tendencies; it can just a study of criminals who committed as well be explained by the fact that acts of violence in comparison to the the children of criminals are exposed criminal behavior of their offspring, by during their most formative period of Konrad Ernst.78 This book is based on life to an environment conducive to the an investigation of 93 cases of convicts formation of criminal habits. Whether who had committed at least three acts actually heredity or environment have of violence and had adult descendants. contributed more to the transmission of The author found that among the sons criminal traits, and whether it is at all of the offenders 56.4%o had been con- possible to differentiate heredity from victed also, and not less than 27.1%o environment, we do not know. To the more than thrice. The corresponding solution of these problems the recent percentages among daughters were German studies have contributed as 23.4%o and 1.6%. Variations in the much and as little as the much earlier crime rate of. the second generation American investigations of the famous were correlated with certain character- J ukes and Kallikak families. istics'of the first generation. A high A number of studies have been rate among the offspring was associated undertaken with a view toward demon- with the following traits of their strating the importance of heredity as fathers: Early delinquencies, short in- a cause of crime by a more exact tervals between offenses, continuation method. This method is the investiga- of criminal activities in the later periods tion of twins, of whom at least one is of life, a large number of penal sen- a criminal offender. Twins are either tences, variations in kind of criminal "identical" (monozygotic) or "fra- acts, convictions for, beggary, and the ternal" (dizygotic). Identical twins are commission of sex crimes against family those who have developed from the members. same ovum and whose hereditary back- The scope of this study is described ground is therefore more similar than by ,the author as the comparison of that of fraternal twins who have de- criminal behavior in two generations. veloped from two different ova. Among He expressly declined to decide whether criminal biologists the opinion is preva- the correlations established by him are lent that a comparison of identical and due to the influence of heredity or en- fraternal pairs of twins who have grown

78 K. Ernst, Ueber Gewalttaetigkeitsverbrecher 79 K. Ernst, op. cit., p. 1. und ihre Nachkommz, Berlin, 1938. WERNER S. LANDECKER up in the same environment affords an but the differences he found between opportunity to determine the influence identical and fraternal pairs of twins of heredity upon criminal behavior. were smaller than those at which Lange The hypothesis employed in the studies had arrived. Kranz came to the result of this school is the following: If in that 21 out of 32 identical pairs and 23 the case of identical twins one sibling out of 43 fraternal pairs consisted of is an offender the other should be an two criminal siblings. Even less pro- offender too, because both have the nounced was the difference found in a same hereditary qualities. Among fra- study by Friedrich Stumpfl.12 Here, the ternal twins, however, the other sibling number of criminal pairs was 11 out is expected to be a non-criminal, since of 18 identical pairs and 7 out of 19 the two differ in their hereditary fraternal pairs. The most impressive make-up. research of this kind has been under- The first study of this kind was made taken by a group of American stu- 8 3 by Johannes Lange, who believed to dents. The number of pairs used in have proved by his research that this investigation was 340, a sample "crime is destiny."'80 Lange's material much larger than any Which was avail- consisted of 13 identical and 17 fra- able to German workers. This material ternal pairs of twins, of whom at least was composed of cases of adult crim- one was an offender. He found that in inality, juvenile delinquency, and cases 10 cases of identical twins both siblings of behavior difficulties in children. The had committed offenses, whereas among authors found that out of a total of 126 the fraternal twins there were only two identical pairs 105 pairs were both such pairs. There are three plain rea- marked by any one of the three be- sons why the results of this study are havior problems. Among 214 fraternal not as startling as its title. First, the pairs both siblings were affected in only two samples, 13 and 17, are too small 68 cases. to support generalizations. Second, in What do these twin studies show? botb samples the alleged rule suffered Their authors claim that the compari- exceptions which require explanation. son of identical and fraternal twins fur- Third, the methods of distinguishing nishes a method by which the role of between identical and fraternal twins heredity can be determined without the are far from being foolproof. interference of environmental factors. The weight of at least the first of Since twins, regardless of whether these shortcomings has been decreased identical or fraternal, supposedly grow by further research in the same direc- up in the same environment it is main- tion. The samples used in a study by tained' that the environmental factor is Heinrich Kranz8 1 were slightly larger, kept constant in these studies, heredity

so J. Lange, Crime and Destiny, transl. by am Lebenslauf von Zwillinoen, Leipzig, 1936. Charlotte Haldane, New York, 1930. 83 Aaron J. Rosanoff, Leva M. Handy and Isabel Sl Lebensschicksale kriminellerZwillinge, Ber- Avis Rosanoff, "Criminality and Delinquency in lin, 1936. Twins," Journal of Criminal Law and Crimi- 82 Die Urspruenge des Vrbrechens, dargestellt nology, vol. XXIV (1933-1934), pp. 923-934. CRIMINOLOGY IN GERMANY being the only variable. This assump- There can be no doubt that heredity tion is erroneous. First, it never hap- has its share in the formation of human pens that two individuals live in ex- behavior in general and in the causa- actly the same environment however tion of crime in particular. But no un- similar they may be. It must not be biased student of crime will deny that overlooked that -environment includes the hereditary factor works in a total not only economic conditions and family structure of conditions among which status, which are the same for all mem- heredity is but a single item. Unfortu- bers of the same family during their nately, it has always been a character- early years of life, but also less tangible istic of the specialist to overemphasize but equally potent factors such as one's the importance of his particulak ap- role within the family, the child-parent proach to his object of study. It is no relationship, and associations outside wonder that this tendency is even aug- the family. If variations in these re- mented when political expediency puts spects exist even for identical twins, a premium on it. A true scientist will which cannot be doubted, then they never forget that the more he narrows exist all the more for fraternal twins. down his field of specialization the less The latter show greater dissimilarities he is able to explain the total situation in appearance than the former, and it which he focuses from his limited point must be expected that these differences of view. Therefore, the exaggerations call for differences in reaction on the of the biological school of criminology of parents and other associates. part should serve us as a warning against Therefore, it can be assumed that the scientific onesidedness and narrow- differences in environment are greater mindedness and against the dangers of for fraternal than for identical twins. political control over science. If pres- If this is the case, the factor of environment is not kept constant in these ent-day criminology in Germany helps studies, so that it is fallacious to ascribe us in this way to define better our own variations in behavior solely to vari- goals, then history will judge it a not ations in heredity. entirely useless adventure in science.