IS LEGAL RECOGNITION OF GRADUATED RESPONSIBILITY PRACTICABLE?

Abstract

I believe I am correct in asserting that the basis, upon which all legislative effort to regulate human conduct in civilized countries rests, is, that for a given offense a certain penalty shall be inflicted. Arbitrary classification has been made of what are considered deflections from good conduct, giving numerous degrees of offense, each with a definite penalty attached. An offense of a certain kind and a certain degree has a corresponding kind and degree of punishment. The law can only approximately determine degrees of guilt and recognizes in most cases that extenuating or aggravating circumstances may vary the degree of offensiveness in any given act, so that much latitude is ordinarily allowed the judicial authority charged with rating criminal conduct in fixing the penalty. At the same time I believe it is true that this latitude is always for the purpose of fixing as accurately as possible the grade of the individual offense and of making its penalty to correspond, rather than a recognition of any variation in the responsibility of different individuals for an act of the same character under precisely similar circumstances. The variation recognized by the law is a variation in grade of criminal conduct-a variation in the degree of divergence from right conduct. It is true that as administered by the courts the presiding judge does sometimes attempt to include among the extenuating circumstances the capacity of the particular mental organization which is found in the offender. The penalty inflicted is sometimes modified because of a belief that full capacity does not