This is so true that at the Prison Congress at St. Petersburg in 1889 the question was first propounded ``whether it can be admitted that certain criminals should be regarded as incorrigible, and, if so, what means could be employed to protect society against this class of convicts.'' And speaking as a delegate from the Law Society of St. Petersburg, M. Spasovitch acknowledged that ``this question bore the stamp of its origin on its face. Of all the questions in the programme, it seemed to be the only one directly inspired by the principles of the new positive school of criminal anthropology, whose theories, propagated beyond the land of their birth in Italy, tended to a radical reform in science as well as in legislation, in the penal law as well as in procedure, in ideas of crime as well as in the modes of repression.''
The Congress, in spite of some expressions of reserve, as when Madame Arenal platonically observed that ``an uncorrected criminal is not synonymous with an incorrigible criminal,'' adopted the following resolution:—``Without admitting that from
the penal and penitentiary point of view there are any absolutely incorrigible criminals''—which is pure pedantry—``yet since experience shows that there are in fact individuals who resist the combined action of punishment and imprisonment''—a notable admission!—``and who habitually and almost professionally renew their violation of the laws of society, this section of the Congress is unanimously of opinion that it is necessary to adopt special measures against such individuals.''
Similarly the International Union of Penal Law, in its session at Berne (August, 1890), expressed the opinions of the majority in the following terms:—``There are malefactors for whom, in view of their physical and moral condition, the constant application of ordinary punishments is inadequate. In this class are specially included the hardened recidivists, who ought to be considered as degenerate criminals, or criminals by profession. Malefactors ought to be subjected, according to the degree of their degeneration, or of the danger which they threaten, to special measures, framed with the purpose of preventing them from inflicting harm, and of amending them if possible.'' And in the session at Christiania (August, 1891), after the remarkable contribution of Van Hamel, the Union, after rejecting the proposition of Felisch, which spoke of ``the uncorrected'' in place of the ``incorrigible,'' unanimously approved the conclusions of Van Hamel:—``With a view to the more complete study of the character and injurious influence of habitual offenders, notably of such as are incorrigible (a study which is absolutely indis
pensable for legislation), the Union instructs its officers to urge upon the various Governments the great importance of statistics of recidivism which shall be detailed, precise, uniform, and adapted for comparative study. For incorrigible habitual offenders it is absolutely necessary that the trial on the last charge shall not definitely determine the treatment of the offender, but that the decision shall be carried on to a further inquiry, which shall have regard to the offender personally, to his past, and to his conduct during a fixed period of observation.
It is now necessary to inquire what form the perpetual or indefinite segregation of the criminal should assume.
Two great innovations in regard to prisons, as M. Tarde observes, have been made or developed within the past century, which are not yet adopted in every country: penal colonies, whereof transportation is only a factor, and the prison cell. The cell has assumed a leading position since it was brought over from America to Europe, where, however, the cellular prisons of St. Michael at Rome, and of Gand, had preceded it.
The cellular system, a product of the reaction against the enormous physical and moral putrefaction of the inmates of common prisons and labour establishments, may have had, and doubtless still has many advocates, amongst other reasons for the spirit of pietism and religious penitence which always goes with it; but it is open to strong criticism.
There has already been, amongst the same prison
experts, a
certain retrogressive movement in regard to isolation. Absolute
and continued isolation, indeed, both by day and by night
(``solitary confinement'') was at first recommended, even to the
introduction, grotesque in spite of good intentions, of hoods and
masks for the prisoners, a medi
Then the ``progressive system'' was introduced,
first in England, where it was devised by Maconochie, next in Ireland, which has given it a name, alternated with that of Sir W. Crofton. This is the most symmetrically perfect machinery, though reminding one somewhat of a company of marionettes. It confirms what was said by Haeckel, that the actual is a summary of the moods of aspiration, for it precisely sums up the systems which preceded it, each of which constitutes a phase of the progressive system. There is first of all a period of brotherly charity—absolute isolation for the prisoner to fall back upon his conscience, or to listen to the voice of remorse, or to receive an impression of devotion and fear. After this comes the Auburnian phase, of isolation by night and labour (when labour is accorded) by day, with the constraint of silence. Then an intermediary period in the agricultural colony or labour-gang outside the prison, like a period of convalescence, to accustom the lungs to the keen air of liberty. This is the phase added by Sir W. Crofton to the English system. Lastly comes the period of conditional release (on ticket of leave), whereby the last portion of the punishment is remitted, and will count as expiated if during the time of liberation, and for a succeeding period, the convict does not commit another crime.
The progressive or retrogressive passage from one phase to another is made by a sort of automatic regulator, depending on the number of marks gained or lost by the prisoner through his good or bad behaviour, to which we know the moral or psychological value to be attached—a value purely negative.
This progressive, gradual, or Irish system has obtained a supremacy in Europe, so that even Belgium, the classic land of the cellular system, reconsidered the ideas which it had based on daily experience, and was the first continental country to introduce conditional sentences (in 1888), which are the fruit of short sentences and cellular punishments.
I do not deny that this progressive system is better than the others, though we must not forget that the almost miraculous effects of amendment and decrease of recidivism (which indeed are claimed for every new system, only to be disproved later on) were due in Ireland to the wholesale emigration of those conditionally released to North America—an emigration amounting to 46 per cent. of the prisoners released. Nor must we forget that this system, which requires a trained staff of officers, is less difficult to work in countries where, as in Ireland, there are only a few hundred prisoners; but it would be much more difficult in Italy or France, where the prisoners are numbered by tens of thousands. In these countries, accordingly, the system will not be practical unless the principle of classifying prisoners in biological and psychological categories is conjoined with it; for without this we shall not get rid of the impersonal system which is the vice of our present penal law, and under which, even in our prison administration, we treat the prisoner as a mere symbol, to which we can apply the three conventional rules of the cell, hard labour, and instruction.
But I am strongly opposed to, or accept simply as
accessory (even for the seclusion of prisoners before trial, after the preliminary examination), cellular isolation by itself, which has reached the height of absurdity and inhumanity in cases of imprisonment for life.
As Mancini said in 1876, discussing the draft of the Italian penal code, ``the punishment of hard labour for life, which is substituted in the draft for the capital sentence, differs substantially in its severity of privation and misery from all other modes of imprisonment. It must be undergone in one or two special prisons to be erected within the country. It would be the saddest and most terrible thing which the imagination of man could conceive. These tombs of the living, whom society has rejected for ever, unlike all other prisons, will condemn their inmates to continuous solitary immurement in cells, and to a life which may be worse than death itself. . . . This most wretched condition, which the free man cannot realise without horror, is to last ten years; and it is not to be in the power of man to bring it to an end sooner, if the prisoner, broken down by physical weakness, or threatened by loss of reason, cannot endure it any longer.''
After this description, I am not sorry that I denounced the cellular system as one of the madnesses of the nineteenth century.
This useless, stupid, inhuman, costly ``tomb of the living'' must be repudiated, even when reduced to its lowest terms by the new Italian code, wherein Parliament, accepting part of my amendment, fixes the term of absolute seclusion at seven years.
It will be seen by this description of cellular imprisonment that the classical criminal and prison experts have logically arrived at the conclusion that perpetual punishment should be abolished; and this renders recidivism possible even in murder. But it is clear that what we ought to abolish is not perpetual separation, but only the stupidly harsh form of isolation in cells—and this not only in life sentences, but in all sentences.
Cellular imprisonment is inhuman, because it blots out or weakens, in the cases of the least degenerate criminals, that social sense which was already feeble in them, and also because it inevitably leads to madness or consumption (by onanism, insufficient movement, air, &c.). Hence it drives the prison authorities, in order to avoid these disastrous consequences, to the injustice of building cells for murderers which are decidedly comfortable, and consequently a mockery of the honest wretchedness of the cottages and garrets of the poor. The treatment of mental diseases recognises a special form of insanity under the name of prison madness.
Cellular imprisonment, in temporary or indefinite sentences, can do nothing for the amendment of the guilty, especially because, when we do not amend the social environment, it is useless to lavish care on our prisoners if, as soon as they quit prison, they must return to the same conditions which led them into crime. No adequate social prevention can in any way be provided by the more or less arcadian devices of the prisoners' aid societies. The chief mistake of the prison experts has been to concentrate their attention
exclusively on the cell and in the cell, forgetting the external factors of crime; so that, by a familiar psychological process, the cell has become for prison experts what money is to the avaricious: it has ceased to be a means, and has become an end in itself.
Again, the cellular system is ineffectual because the very isolation which was its original object is incapable of realisation. Prisoners find a thousand means of carrying on communication with each other, during their walks, or by writing on the leaves of books lent to them to read, or by knocking on their walls according to a conventional alphabet, or by writing in the sand, or by using the drains as telephonic receivers, as was done in the cellular prisons of Mazas, Milan, &c. Plain proofs of this may be found in Lombroso's ``Les Palimpsestes des Prisons.'' ``The public, and even well-informed persons, honestly believe that the cellular prison is a dumb and paralytic thing, without tongue or hands, simply because the law has ordered silence and inactivity. But as no decree, however vigorous, can counteract the nature of things, so this organism speaks, moves, occasionally wounds or slays, in spite of all the decrees. Only, as always happens when a necessity of humanity is opposed by a law, it acts by less known, underground and hidden means.''
Moreover, the cellular system is unequal in its application, for difference of race has much to say to it, and in fact it is a clumsy machinery of the northern races, repugnant to those of the south, more dependent on the open air and light. Apart from that, isolation has very different effects amongst people of the same nation, according to the different vocations
of the prisoners, especially of occasional offenders. In this connection the testimony of Faucher, Ferrus, and Tarde is thoroughly just, that in prison administration we ought to observe a distinction between dwellers in town and country.[23]
[23] Yet the question whether the cellular system should be modified in accordance with the nationality, social condition, and sex of criminals, which has not been brought forward since the Prison Congress at Stockholm, was there decided by the following resolution:—``The cellular system, where it is in operation, may be applied without distinction of race, social condition (as regards townsmen or rural population), or sex, provided that the authorities have regard to these special conditionsin matters of detail. Exception may be made in respect of the young, and if cellular discipline is applied to them also, it should be in such a way as not to prejudice their physical and moral development.'' (``Proceedings,'' 1878, pp. 303, 617.)
Again, the cellular system is too costly to be adopted as the only form of imprisonment—which, however, is enacted in the Italian penal code, the French law of 1875, and elsewhere.
And it is just by reason of the enormous expenditure on vast prisons that the grievous and mischievous contrast arises between the comforts provided for murderers and men guilty of arson in their cells and the privations to which the honest poor are exposed in hospitals, poorhouses, town garrets, country hovels, and barracks. One of the most significant results which I noticed at the exhibition of various plans of cells in connection with the Prison Congress at Rome in 1885 was that it demonstrated to the general public how the cellular system treats prisoners (whether before trial or after sentence) better than the poor, who continue to be honest in spite of their wretchedness.[23]
[23] Even prison experts have been concerned by the vast expense of the cellular system, and the following question was brought forward at the
Congress at Rome:—``What modifications would be possible, in accordance with recent experience, in the construction of cellular prisons so as to render it more simple and less costly, without detriment to the necessary conditions of a sound and intelligent application of the system?'' Detailed recommendations were agreed to on the motion of M. Herbette; but the system is unchanged, with requirements which can be only very slightly reduced.
In Germany, as well as in France and Italy, legislation has ordained, by codes and special laws, the cellular system for all punishment by imprisonment; but fortunately the system has not yet been adopted, thanks to its enormous cost. So that we have the further absurdity of codes based on prison systems which have no actual existence. And since criminals have their part in the law, not as it is written but as it is carried out, the result is naturally disastrous.
Thus the cellular system bears hard upon the honest classes, both by its enormous cost, under the form of taxation, and by competition with free and honest labour. The competition is moral in the first place, for the criminal is always assured of daily work, lodgings, and food, whilst the honest workman is assured of neither. Even the economic competition, though not extensive when we take the totals of free workmen and prisoners, is still very keen in particular places and for particular industries, whilst prison labour never indemnifies the State for its expenditure; for clearly with cellular isolation it is impossible to organise important and profitable industry. It is the small industries, such as shoemaking and carpentry, which crush the same free industries all round the prison, for they cannot stand against the artificial competition created by the nominal wages of the prison hands. Though for moral and financial
reasons the convicts must work, it is evident that on these grounds we cannot accept the cellular system as a pattern of prison organisation.
It is quite sufficient, in prisons for the segregation of criminals, to provide for isolation by night, which requires buildings far more simple and less costly than those of the cellular prisons.
Work in the open air is the only useful basis of organisation for convict prisons.
Air, light, movement, field labour, especially in southern counties and for the majority of prisoners, who are rural—these are the only physical and moral disinfectants possible for prisoners not entirely degenerate, or likely to prevent at least the absolute brutalisation of the incorrigible, by giving them healthy and more remunerative work.
The penal agricultural colony, in lands which need clearing, is the best for adults, passing from the least to the most healthy according to the categories of criminals—born, habitual, occasional—and according to the gravity of the crimes committed. To this may be added, for convicts less capable of restoration to social life, labour in mines, especially when the mines are State property. What I have said of malaria I say of fire-damp: it is much better that these should kill off criminals, than honest workmen.
The penal agricultural colony in lands already cultivated is best for children and young people.
This is the ideal and the typical form of segregation for criminals, against whom it would not be sufficient to exact strict reparation of damage, on the principles already set forth.
Wherever there is a crowding of humanity, there is human fermentation and putrefaction. Only labour in the open air will secure physical and moral health. And if agricultural work would be less fitted for criminals from the towns, there is no reason why an agricultural colony should not make itself as far as possible self-sufficing by means of workshops where prisoners could ply the trade to which they were accustomed when at liberty. For town convicts without a trade, such as vagabonds, beggars, and the like, on the ground of their muscular incapacity for hard and regular work, an agricultural colony is still the most fit, for it provides light and varied occupations, as the agricultural colonies of Holland, Belgium, and Austria bear witness.
The same evolution will take place in regard to the segregation of criminals as in regard to the seclusion of the insane; first, hospitals and prisons, with a terrible communion of corruption in both cases; then barrack life, in asylums or penitentiaries, vast and isolated; lastly, for the insane, a system of so-called village asylums, and even a free colony for harmless idiots who can be put to agricultural work and minor trades, as at Gheel in Belgium. Similarly for criminals, the sanitary ``elbow room'' of agricultural colonies will be substituted for the infectious barrack-life of the great prisons.
As for habitual criminals, their anthropological characteristics remind us that we must distinguish between the two crises of their criminal activity, and, as a consequence, between the methods of defence
against them. That is to say, we must distinguish between the initial moment at which they commit their first crime and the subsequent period in which they become habitual offenders, recidivists, and even incorrigible.
Thus it is clear that at the initial moment of their criminal career they ought to be subjected to the measures which I am about to indicate for occasional criminals; whereas, when from occasional they have become, partly by their imprisonment, habitual offenders, they must be subjected to the measures already indicated for born criminals. The latter are incorrigible through congenital tendency to degenerate, and the former are incorrigible through acquired tendency; but they end in the same degree of anti-sociality and brutalisation. There is, however, this difference, that habitual offenders nearly always commit less serious crimes, such as theft, swindling, forgery, indecent assault, whilst the born criminals, though they may be petty thieves, or not very formidable swindlers, are more frequently murderers, footpads, guilty of arson, or the like. Thus the discipline of their segregation must vary accordingly.
For occasional criminals, social defence must have a character of prevention rather than of repression, so as to save them from being driven, by a mistaken prison organisation, to become recidivists, and therefore habitual and incorrigible criminals.
It is especially important in this category to discriminate between the young and the adults, for
with the former, far more than with the latter, the preventive methods may have a sensible effect in diminishing crime. But we must take care, in place of the pedantic graduation of responsibility which satisfies the penal codes, to substitute a physiological and psychical treatment of children and young people, who are actual criminals or framing for crime.
Beginning with the physical and moral treatment of foundling children as one of the most effectual penal substitutes, and advancing to reformatory constraint and penal sentences upon the young, there is an entire system crying for radical reform, from which imprisonment for young persons should always be excluded. We must therefore abolish the so-called houses of correction; for, taking no account of the absurd and dangerous confusion created by the three classes of children committed for paternal correction, for begging and vagrancy, and for offences, no good can ever come of it, for the herding and crowding together are nowhere more productive of fermentation and putrefaction than amongst the young.
There is nothing for them but separate boarding-out with families of honest country folk, or else agricultural colonies with a discipline different from that of the colonies for adult criminals, but still based on the rule of isolation by night, work in the open air, and as little crowding as possible.
For adult occasional criminals it is unnecessary to insist any further on the absurdity and danger of short terms of imprisonment, with or without isolation in cells, which now constitute the almost
exclusive mode of repression. A few days in prison, mostly in association with habitual criminals, cannot exercise any deterrent influence, especially in the grotesque minimum of one day, or three days, as provided by the Dutch, Italian, and other codes. On the contrary, they are attended by disastrous effects, by destroying the serious character of justice, relieving prisoners of all fear of punishment, and consequently driving them to relapse, under the influence of the disgrace already suffered, and of the corrupting and compromising association with habitual criminals in prison.
The results of these short terms, indeed, which impose about the same restriction of liberty as an attack of indigestion, or a heavy fall of snow, are so manifest that the objection to them is now almost unanimous, though they still form the basis of the most recent penal codes.
As to the substitution of other repressive methods in the many cases of sentence for light offences, theorists and legislators have proposed domiciliary arrest, sureties, judicial warnings, compulsory work without imprisonment, conditional suspension of a sentence or a punishment, qualified banishment. For the moment there is a marked preference for conditional sentences.
In my opinion, however, none of these substitutes or short terms of imprisonment can be applied as effectively or as generally as is necessary for the large class of occasional offenders.
Domiciliary arrests, indeed, which the Italian penal code applies only to women and minors for a first
contravention of the law, with detention in the house, cannot be made effective. They would be useless for those already obliged to remain at home by their daily occupations, and for the rich, who could have any form of distraction in their own houses; and they would be injurious to those who have to earn a living for themselves and their families in workrooms, shops, offices, &c. Moreover, this domiciliary detention would be very difficult in the great towns, where it would probably require a sentinel for every condemned person.
Bail for good behaviour is too unequal in the case of the poor and the rich, and therefore too rarely applicable to be any more than an exceptional and accessory measure, taken in conjunction with the payment of damages; and this even when it is given by sureties.
Judicial warning, with or without security, which the new Italian penal code has sought to revive, in spite of many years' experience under the older codes, cannot be seriously treated. Either the prisoner is an occasional offender, or an offender through passion, having a sense of honour, in which case public opinion is itself a sufficient lesson for him, without the need of a little moral lecture from the judge; or else he has no such moral sensibility, and then the warning is a mere useless ceremony, without effect either on the criminal or on the public. So true is this that judicial warning (a different thing from police warning, which is another so-called preventive measure, both ineffectual and injurious) is rarely applied by magistrates.
Compulsory work without imprisonment may be admitted, not as a main punishment, but as a mode of enforcing strict reparation of damage, which I still believe to be the only suitable measure for occasional offenders, when the offence is slight.
The same must be said for qualified banishment (temporary removal from the place where the crime was committed), which may be added as a preventive measure, and as a satisfaction for the injured party, in the same cases where the payment of damages is the principal retribution.
There remains the conditional sentence. A judge may decide, in the case of first offenders who appear to him to call for such treatment, that the sentence or the execution of the sentence, shall be suspended for a given period, after which, if the offender has been of good behaviour, and has not committed another offence, the sentence is effaced and the condemnation is regarded as non-existent; whilst in the other case the sentence takes effect, and the punishment is added to that of the new crime.
This conditional suspension, however, assumes two very different forms.
At Boston, in the State of Massachusetts, from the year 1870 in the case of minors, and from 1878 in the case of adults, judgment is suspended without regard even to the gravity of the crime or to the antecedents of the criminal; and this custom has applied to the entire State from the year 1880. All that the judge does is to fix the period of probation. There is a probation officer whose business it is to keep his eye on the persons affected, and who has
extensive powers, including that of bringing them up for sentence even for disorderly conduct, without waiting for an actual relapse. This system has also been introduced into New Zealand and Australia (1886).
In England, after the advocacy of the probation system by the Howard Association, an Act was passed in 1887 ``to permit the conditional Release of first Offenders in certain cases.'' This law combines probation with sureties for good conduct. Judgment is given, but sentence is not pronounced. The suspension is not granted to any one who has previously committed an offence, or whose first offence would be liable to a punishment exceeding two years' imprisonment. There is no probation officer, for supervision is replaced by personal or other sureties for good behaviour.
On the continent of Europe another form has been adopted. There is no supervision by a special officer, and no surety for good behaviour; judgment is delivered and sentence pronounced; and the suspension is not forfeited by disorderly conduct, but only by an actual relapse.
This system, so far as the purpose was not effected by various
conditions as to the duration of punishment, which left room for
conditional sentences, as to the interval for taking cognisance of
relapse, and other details, was proposed in France (1884) by
Senator B Before that time, at the Prison Congresses of London (1872) and
Rome (1885), there had been some discussion, without resolutions,
on the advisability of substituting for punishment with hard
labour either simple detention without labour or compulsory labour
without imprisonment, or removal from the place where the offence
was committed, or judicial admonition. But the most noteworthy advocacy of conditional sentences, after
the action taken by the Howard Association in 1881, came from the
International Union of Penal Legislation, which at its Conference
at Berne in 1889 adopted a resolution in its favour, whilst
insisting, at the suggestion of M. Garofalo, ``on the necessity of
deciding its limitation according to local conditions, and to the
public opinion and moral characteristics of various nations.'' The Prison Congress of St. Petersburg discussed the substitution
of judicial admonition or conditional sentences for short terms of
imprisonment; but no resolution could be arrived at on this
occasion, and the matter was postponed to the next international
Prison Congress (Paris, 1895). In Austria and Germany, again, several Bills have been introduced,
dealing with conditional sentences. There are statistics for Belgium on the operation of this system.
The law of 1888 requires the keeper of the seals to report
annually to Parliament; and that authority drew up two reports,
dated May 14, 1890, and July 7, 1891. From the day when the law came into operation up to December 31,
1889, out of 61,787 sentences in the Correctional
Tribunals, 8,696 were conditional; and there were 192 relapses.
Out of 222,492 sentences in the Police Courts, 4,499 were
conditional, and there were 45 relapses. These 13,195 conditional sentences included 8,485 for crimes and
offences under the penal code; 2,286 for breaches of police
regulations; 447 for breaches of communal and provincial
regulations; and 1,977 for contraventions of special laws. The crimes and offences for which these sentences have been most
frequently pronounced are as follows:— Correctional. Police.Malicious Wounding … … … … … 3,339 … 491Thefts, &c … … … … … … 1,803 … 206Resistance to and attacks on Authorities 961 … 67Destruction of Inclosures and Property 211 … 56Swindling and Breach of Trust … … 125 … 5Slander and Defamation … … … … 113 … 79Immorality … … … … … … 112 … 10 Offences below 100 were: Abusive language, 99; Indecent assaults,
59; Threats, 58; Forgery, 49; Adultery, 48; Adulteration of food,
44; Unlawful wounding, 45; Unlawful possession, 31; Unlawful
carrying and sale of arms, 30; Bankruptcy, 26; Accidental
homicide, 20. In the year 1890, out of 41,330 sentences in the Correctional
Tribunals, whereof 36,660 were not over six months' imprisonment,
7,932 were conditional, and there were 223 relapses. Out of
121,461 in the Police Courts, 6,377 were conditional, and there
were 49 relapses. The proportion for various offences was approximately the same as
in the previous year. These figures, it is true, do not tell us much about the
effects of conditional sentences in Belgium, as we might expect
from the brevity of the experiment; so that the question still
remains in the theoretical phase. The statistics of the Massachusetts probation system are not much
more instructive. According to the decennial report (1879-88) of Mr. Savage,
probation officer at Boston, imprisonment was remitted in the
county of Suffolk (including Boston) to 322 persons in 1879 and to
880 in 1888; whilst the number officially recorded for the
following year was 994. In the course of ten years the probation
officer inquired into the cases of 27,052 persons liable to
supervision. Of these, 7,251 were put on probation, and 580 were
deprived of the benefit of the law. The grounds on which the probation system was applied in
Massachusetts were strikingly different from the circumstances
under which conditional sentences were recorded in Belgium. Thus
in Boston there were put on probation, between 1879 and 1888,
3,161 persons charged with drunkenness for the first time, 222
charged with habitual drunkenness, 211 with drunkenness for the
third time, 958 with theft, 764 with solicitation, 470 with
inflicting bodily harm, 274 with disorderly conduct and idleness,
240 with violation of domicile, especially with intrusion in
business premises. Thus, apart from the difference of penal legislation and social
life in the two countries, the Boston system is applied mainly to
drunkards, who are not true criminals by the mere fact of
intoxication.
As for the statistics of ascertained relapse, which in Boston
reached 64 out of 1,125 (6 per cent.) in 1889, I think they should
be received with caution. In the case of every new penal or
penitentiary system or measure, we never fail to receive more or
less wonderful figures on the results obtained; but the common
fate of all these splendid results has always been that they
dwindle down, even if they do not turn into a negative quantity,
so as to indicate the necessity of other more practical and
serviceable measures. The reason is, and will continue to be the
same, namely, that legislators, judges, and prison warders have no
adequate knowledge of criminals, and their activity is anything
but harmonious. This accounts for the superficial character, if
nothing more, of the measures which are taken, and which apply far
more to the crime than to the criminal, without so much as
touching the true and deep-seated roots of crime. Hence also the
inevitable disillusion, almost before the new device is a month
old. I by no means admit the two principal objections of MM.
Kirchenheim and Wach, that the conditional sentence is repugnant
to the principle of absolute justice, according to which every
offence should be visited by a corresponding punishment, and that
short terms of imprisonment, if they have not always produced a
good result, ought not to be abolished, but only applied in a more
suitable and efficacious manner. The first objection will not weigh much with those who are guided
by the principles and method of the positive school. As M.
Gautier says, it is absolutely useless to dispute about
consequences when we start from premisses so opposed to each other
as retributive justice, according to which every fault demands a
proportional punishment—``fiat justitia pereat mundus''—and
social defence, according to which a justice without social
advantage is an unjust justice, afflicted with metaphysical
degeneracy. The second objection appears to me to have no better foundation,
for the disadvantages of punishments by short terms of
imprisonment are organic and inevitable defects. There is no
chance of their practical amelioration, for they have all been
tried, from the system of association to that of absolute
isolation, from the most inflexible vigour to the mildest
treatment. Amelioration of short-term punishments can only have
an indirect influence by way of palliation; but it is the actual
imprisonment for a short term which is trifling and unavailing. At the same time, and not to mention other objections on points of
detail, specially applicable to the form given to conditional
sentences on the continent of Europe, as compared with the
American system, (which is certainly better, since it does not
leave the offender to himself, and is not restricted to the simple
legal relapse), I am not enthusiastically in favour of the
conditional sentence. And my lack of enthusiasm, in spite of the
first impression, which was decidedly favourable, is based on
different grounds from those hitherto stated by the opponents of
this reform. In the earliest edition of this work I maintained that repression
ought to be mild in form for occa sional criminals, and
progressively severe for recidivists and habitual evildoers, until
it reached perpetual segregation. The Italian proverb, that ``the
first fault is pardoned and the second whipped,'' is an
unconscious confirmation of the popular opinion. And from this
point of view the conditional sentence, if combined as in the
French law with progressive severity of repression for
recidivists, is sufficiently attractive in the first instance. But the conditional sentence, to consider it for a moment as it
has hitherto been propounded and carried out, has two
characteristic defects, in common with the actual penal system, of
which its advocates, for the most part balancing between the
classical and positive school, cannot get rid. In the first place, whilst the classical school has fixed its
attention on crime, and the positive school studies the criminal,
especially in regard to his biological and psychological
character, the advocates of the conditional sentence (and of the
laws which have so far brought it into operation) oscillate
between the two standpoints, considering the criminal, no doubt,
rather than the crime, but only the average and abstract criminal,
not the living and palpitating criminal, as he is to be found in
his several categories. In proof of this it is enough to observe
that the ninth article of the Belgian law admits the conditional
sentence, so far as punishment is concerned, when this punishment
does not exceed six months,*even if the period is made up by the
cumulation of two or more!In other words, the conditional
sentence is allowed in the case of a criminal who has
com mitted several offences—which substantially (except in
the few cases of connected offences due to the same action, or
arising out of the same occasion) is a mere case of relapse, and
therefore proves in the majority of cases that the law is not
dealing with true occasional criminals; for these, as a rule, like
criminals of passion, only commit a single crime or offence. The two fundamental conditions of the conditional sentence in
Europe (a slight infraction and a nonrelapsed criminal) do not,
therefore, afford a complete guarantee of the utility of its
application. It is true that this system tends to fix the attention of the
judge on the personal conditions of the prisoner, requiring him to
decide if the conditional sentence is suitable to the particular
occasion, having regard to the special circumstances of the action
and the individual, apart from the legal limitations of the
offence and of the punishment. But we know that the crowding of the prisons with persons
condemned to short terms of imprisonment is attended by a grievous
crowding in the courts of prisoners accused of slight offences and
contraventions. Thus it is inevitable that the judges, even apart
from their ignorance of the biological and psychological
characters of the offenders, being compelled to decide ten or
twenty cases every day, cannot fix their attention on the
procession of figures which files past the magic lantern of the
courts, but simply leave them with a ticket bearing the number of
the article which applies, not to*them,but to their particular
infraction of the law. Thus the judges will come to
pronouncing the conditional sentence almost mechanically,
just as they have come to give the benefit of attenuating
circumstances by force of habit This device also was introduced in
France in 1832, in order to ``individualise punishment''—that is
to say, to compel the judge to apply his sentence rather to the
criminal than to the crime. So long as penal procedure is not radically reformed, as we have
proposed, in such a manner that the inquiry, the discussion, the
decision upon the evidence, which are the only proper elements of
penal justice, aim at and lead up to the determination of a
prisoner's biological and psychological type, it will be humanly
impossible for the practical application of these judicial
measures to overcome the mechanical impersonality of justice,
which applies rather to the crime than to the criminal. Hence the conditional sentence, though it was evolved by the abuse
and disastrous effects of short terms of imprisonment, and in
spite of its generating principle that ``the first fault is
pardoned and the second whipped,'' has to-day only the character
of an eclectic graft on the old classic stock of penal law and
procedure. As such, notwithstanding its attractive features (for
it indicates a step in advance towards the positive system of
social defence, which desires to see the application of collective
defence to the individual's power of offence), it seems to me to
be destined, not long after its earliest application, to deceive
the anticipations of happy and beneficent results, such as its
advocates entertain. Moreover, the conditional sentence, precisely be cause it is
a graft on the old classic stock of penal justice, has another
very serious defect, inasmuch as it overlooks the victims of the
offence. Its advocates, in fact, continue to maintain that reparation of
damage is a private concern, for which they benevolently recommend
a strict remedy, but which they nevertheless, in practice,
entirely overlook. The offender who is conditionally sentenced is, therefore, to
secure a suspension of punishment—which, indeed, it is as well to
remember, he also secures, often enough, by a legal limitation,
or, as in Italy, by the remission of punishments under three
months, accorded whenever (as is generally the case) there is a
petition for pardon. But is there any one who gives a thought to
the victims? From this point of view it may even be said that the conditional
sentence makes things worse than before; for the victims are not
to have so much as the satisfaction of seeing punishment inflicted
on those who have injured them, in cases of assault, theft,
swindling, and the like. And it is useless to make the platonic
remark, as M. Fayer has done, that punishment is punishment even
when conditional, and involves the censure of the public
authority, and holds in reserve a punishment for relapse, and
hangs over the head of the offender until his term of probation
has expired. All this is pretty enough—except the relapse, which implies the
poor consolation of a repetition of the offence, which would be no
great satisfaction for the victims of the first. But it is all
hypothetical and theoretical. The essential thing, so far
as the victims are concerned, is that the offender goes
unpunished. It is true that occasional offenders deserve consideration, from
the point of view of prevention in particular; but honest folk who
are injured by them deserve it still more. I do not therefore agree with Garofalo, who proposed at Brussels
that the conditional sentence should be subject to the consent of
the injured party; but I think that it ought not to be permitted
until there has been an indemnification for the victims of the
offence, or at least a guarantee, either by the offender, or
directly by the State. In short, for occasional criminals who commit slight offences, in
circumstances which show that they are not of a dangerous type, I
say, as I have said already, that reparation of the damage
inflicted would suffice as a defensive measure, without a
conditional sentence of imprisonment As to the occasional criminals who commit serious offences, for
which reparation alone would not be sufficient, temporary removal
from the scene of the crime should be added in the less serious
cases, whilst in the cases of greater gravity, owing to material
and personal considerations, there should be indefinite
segregation in an agricultural colony, with lighter work and
milder discipline than those prescribed in colonies for born
criminals and recidivists. The last category is that of criminals through an impulse of
passion, not anti-social but susceptible of excuse, such as love,
honour, and the like.
For these individuals all punishment is clearly useless, at any
rate as a psychological counteraction of crime, for the very
conditions of the psychological convulsion which caused them to
offend precludes any deterrent influence in a legal menace. I therefore believe that in typical cases of criminals of passion,
where there is no clear demand for mental treatment in a criminal
lunatic asylum, imprisonment is of no use whatever. Strict
reparation of damage will suffice to punish them, whilst they are
punished already by genuine and sincere remorse immediately after
the criminal explosion of their legitimate passion. Temporary
removal from the scene of their crime and from the residence of
the victim's family might be superadded. Nevertheless it must not be forgotten that I say this in
connection with criminals in whom the passionate impulse is really
exceptional, and who present the physiological and psychical
features of the genuine criminal of passion which I enumerated in
the first chapter. I come to a different conclusion in the case of criminals who have
merely been provoked, who do not completely present these
features, who are actuated by a combination of social and
excusable passion with an anti-social passion, such as hate,
vengeance, anger, ambition, &c. Of such a kind are murderers
carried away by anger just in itself, by blood-feuds, or desire to
avenge the honour of their family, by vindication of personal
honour, by grave suspicion of adultery, &c.; persons guilty of
malicious wounding, disfigurement through erotic motives, and the
like. These may be classed as occasional criminals, and
treated accordingly{.??} Such, then, in general outline, is the positive system of social,
preventive, and repressive defence against crimes and criminals,
in accordance with the inferences from a scientific study of crime
as a natural and social phenomenon. It is a defensive system which, in the nature of things, must of
necessity be substituted for the criminal and penitentiary systems
of the classical school, so soon as the daily experience of every
nation shall have established the conviction, which at this moment
is more or less profound, but merely of a general character, that
these systems are henceforth incompatible with the needs of
society, not only by their crude pedantry, but also because their
consequences are becoming daily more disastrous.
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