FOOTNOTES:[1]Although the greater part of this work was prepared in 1915, where it has been possible, the statistics furnished are of a more recent date.
FOOTNOTES:
[1]Although the greater part of this work was prepared in 1915, where it has been possible, the statistics furnished are of a more recent date.
[1]Although the greater part of this work was prepared in 1915, where it has been possible, the statistics furnished are of a more recent date.
THE ENGLISH PRISON SYSTEM.
CHAPTER I.
THE MEANING OF"PRISON REFORM."
"Prison Reform" is a phrase of many meanings. It is used indifferently by the publicist who is seeking a correct definition of the function of punishment: by the utilitarian who doubts if the official system of administration is fulfilling its State purpose: by the humanitarian whose pity is stirred by the inevitable austerity of a system, inflexibly applied to all who suffer deprivation of liberty, and whose mechanical operation might, in their opinion, be relaxed relatively to the vastly different mental and physical states of all the categories of human beings coming, in one way or another, within the domain of the criminal law.
All agree that the System should be, as far as possible, 'Reformatory,' but many are tempted to overlook that it must be also, if punishment is to have any meaning, coercive, as restraining liberty; deterrent, as an example; and retributory, in the sense of enforcing a penalty for an offence. When Plato said that the object of punishment is to "make an offender good," he did not intentionally underestimate the 'retributory' theory of punishment. He only meant that, in the language of modern philosophy,we must respect the reversionary rights of humanity, and while inflicting punishment for an anti-social act, must not lose sight of the duty of restoring, if possible, the offender to society as a better man or woman. As stated by the Committee of 1894, we must not regard him or her as "a hopeless and worthless element of the community." It must be admitted that chastisement by pain (i.e.temporary deprivation of liberty and all that that implies) appeals only to the lower nature, but it is effective in suggesting the consciousness of what the system of human rights means—the system which is maintained by a strong collective determination that it shall not be violated with impunity. This is commonly called 'retribution,' but it has nothing to do with vindictiveness or private vengeance. Society without such a collective determination to resent and punish anti-social acts would be a welter of anarchy and disorder. Let us not then be tempted in the goodness of our hearts, and in the strength of our human pity and sympathy, to overlook the necessary foundation of punishment, which is the assertion of the system of rights by pain or penalty—not pain in its physical sense, but pain that comes from degradation and the loss of self-respect.
There is some confusion in the everyday use of the phrases 'Prison Reform' and 'Penal Reform'. Formerly, 'Prison Reform' meant the structural reform of prisons, sanitation, order, cleanliness. To-day, it means the reform of the "prisoner" by improved methods of influence and treatment while in prison. 'Penal Reform' means strictly the reform of penal law, or of the system of punishment—a question of State policy, with which Parliament and the Judiciary are primarily concerned. These are, of course, greatly influenced by public sentiment and opinion. It is a difficult, complex, and subtle problem, for the solution of which we require legal knowledge, administrative experience, and a nice judgment of the temper of the community, and of the balance which should be kept between the just, and even stern, maintenance of the system of public rights and the rights of the individual human being, which must always be respected, even under chastisement. 'Prison Reform' isnot a theory of punishment: it is an incident of it: it is a question how far we can assert the rights of the State without unnecessary, or excessive, or unprofitable moral and physical damage to the individual.
Of physical damage we need not speak, for it must, I think, be conceded that the medical care of prisoners in this country is as exact, and patient, and considerate, as can be secured by an able, humane, and untiring medical staff.
With moral damage it is different. The most sanguine would hardly expect that, even with the most approved methods, the 'flétrissure' of punishment can be entirely avoided: the blow to pride and self-respect, and of the respect of one's fellow creatures, must constitute a damage which, if not irreparable, must be heavy and even lasting. A humane administration will try and mitigate this inevitable incident of all punishment. Its first and primary function must be, of course, to secure obedience, discipline, order, and the habit of industry. These things alone have a great moral value. Many cruelties have been enacted in the past in the name of prison discipline—solitude, darkness, chains, floggings, tread wheels and cranks, even until a comparatively recent period, were regarded as the essential accessories of punishment. In studying the history of punishment, we cannot fail to be struck by the singular inventiveness of the human mind in designing forms of suffering for those who broke the law—crucifixion, mutilation, stoning, drowning, torture. It was not until the folly of unprofitable and cruel punishment had been illustrated, as in this country, by its failure to correct, or prevent, or until the certainty of punishment was recognized as the real deterrent for crime, that the penal system was rationalized, and by a slow process, due to a progressive widening of the circle of humanity, to what M. Tarde describes as "la propagation ambiante des exemples," the civilized races of the world laid down the sharp and cruel instruments by which alone it had been believed that society could be avenged, and justice secured. It came slowly to be recognized, not only as a religious, but as a political truth, that the worst criminal possessed 'reversionary rights of humanity,' andthat it was only by respecting these that there existed the chance, and the hope, that a man might be reformed by punishment, and not thrown back again into the world with only one burning desire to avenge himself for the cruelties which society had indicted upon him. This is the meaning of the Platonic maxim that the purpose of punishment is "to make men good."
How do we try and 'make prisoners good in English Prisons'? Admitting the necessity for strict regulation to secure order, discipline, and obedience, what are the Reformatory influences in English Prisons? Let us first consider the nature and character of the population to whom these influences are to be applied. True, that they are all human beings, with 'reversionary rights of humanity'; but what an infinite variety of mental and physical states: what an infinite degree of will-power, of self-conciousness, and of self-control, of capacity to realize and to understand. Let us regard them as a College or University of persons of all ages, sexes, and dispositions, and let us not forget that this 'corpus' on which our reforming influences are to be brought to bear is, for the time being, not subject to all the impulses, stimuli, hopes, rewards and temptations to which persons in free life are subject. It was well and truly said by the Home Secretary (Mr. Churchill) in the House of Commons, in 1910, "the mood and temper of the public with regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country. A calm, dispassionate recognition of the rights of the accused, and even of the convicted, criminal against the State—a constant heart-searching by all charged with the duty of punishment—a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment: tireless efforts towards the discovery of curative and regenerative processes: unfailing faith that there is a treasure, if you can only find it, in the heart of every man. These are the symbols, which, in the treatment of crime and criminal, mark and measure the stored-up strength of a nation, and are sign and proof of the living virtue in it." There could not be better words thanthese to inscribe as a phylactery on the brow of every prison administration throughout the world. They are, indeed, the test of civilization. Do our works in this country correspond to this profession of faith?
Of what does this 'corpus' consist? In the year before the war there were, in round figures, 90,000 males and 32,000 females sent to prison for periods of less than 6 months: about 7,000 of both sexes sent for long periods over 6 months: about 1,000 sent to penal servitude: and about 6,000 Juvenile-Adults came within the jurisdiction of the Prison authority, either in Borstal Institutions or ordinary prisons. Of these, the percentage of recidivism in Convict Prisons was no less than 87% for males and 70% for females. Of those sentenced to imprisonment, 63% of the males, and 79% of the females had been previously convicted, while no less than 17% of the males and 31% of the females had incurred eleven or more previous convictions. Amongst the young male prisoners, 16-21, sentenced to imprisonment, about 60% had incurred no previous conviction. The system of classification to which all these are subject in prison, is described in Chapter VII.
All are subject alike under general prison rules to the reforming influences of religion. The Chaplain, Priest, or Minister walks noiselessly among them all, gleaning wheat among the tares, and calling back those who will come to the bidding of the divine Imperatives, which if they have been imparted in youth, have, in many cases, almost faded from memory; and who can tell how often in the silent communings of the cell, the spark of life and regeneration may not light again at the voice of the patient, pleading Minister of God. It is not only by the call of the Chapel services, with the hymns and simple prayers, but by the regular visitation of each in their cells, that this spark latent, but not quite extinguished, may rekindle. Do not let us undervalue the quiet, patient, and unwearying task of those who minister spiritually to those in bondage in prison cells. The door is wide open to all creeds and denominations who seek to enter in; and not only to Ministers of religion, but to lay visitors and missionaries who find their prompting to thiswork by their desire to realize the holy precept "I was in prison and you visited me." Let us not forget the gentle and comforting influence of our Lady Visitors, and the thousands of forlorn and despairing women, young and old, who perhaps find, for the first time, the voice of sympathy and encouragement, which, like a ray of sunshine, lifts the gloom from off their souls.
In addition to the carefully prescribed orders for the education up to a certain Standard of such prisoners as are shown after examination on reception to be in need of it, there are, too, other means by which "the spark of life and sympathy" can be kindled in prison. Of late years, great progress has been made in the systematic introduction of outside influences in the form of lectures and addresses on lay subjects, calculated to interest and inspire, and to afford matter for reflection, and to mitigate the evil of morbid introspection inseparable from long and monotonous seclusion. The value of such influences is manifested in a wonderful degree by the reference made to them in letters from prisoners to their homes and friends. In many cases, a new outlook on life begins. Men and women who have almost lost their humanity by habitual association with the lower conditions of life,—its cupidities, baseness, and greed—whose minds have never risen above the gratification of sensual desires and impulses, have a new vista of things opened to them. Such 'conversion' may arise quite unexpectedly and fortuitously from some simple story, from some appealing incident in world history, even from simple explanation of the wonders of nature or of science. During the war, the practice was instituted of giving a weekly account of the great events occurring on the battlefields of the world: of the heroic deeds that were done: of the noble sacrifices that were made. There was a unanimous agreement as to the moral value of these addresses; and it has recently been decided to continue the system of imparting news of the world to all prisoners by the same method of weekly addresses, Governors and Chaplains having a discretion as to the subjects they shall select, and the manner in which they shall deliver them. It has often been made a reproach againstthe Prison System that prisoners are cut off from all knowledge of outside events, and are thrust back again into the world like children pushed into a dark room, and obliged to grope and feel their way before they can stabilize themselves in the current of normal life. This is no longer the case.
It is another reproach against the system that prisoners are doomed to an unnatural existence by the so-called 'law of silence.' Since 1898, there has been no 'law of silence,' strictly so-called. Previously to that date, the order ran "The Governor shall enforce the observance of silence throughout the Prison." The Committee of 1894 said on this subject: "We think that the privilege of talking might be given after a certain period as a reward for good conduct on certain days for a limited time, and under reasonable supervision, to all long-sentence prisoners, local as well as convict, who have conducted themselves well, and who are not deemed unsuitable for the privilege. The present practice of imposing silence except for the purposes of labour and during the visits of officials and authorised persons, for a period it may be of 15 or 20 years, seems to us unnatural. We recognize that careful supervision would be necessary if this privilege is allowed, but we do not think that the disadvantages which might, perhaps, from time to time, occur would be at all equal to the good likely to result from a partial and judicious removal of this very unnatural restriction." The existing rule made under the Prison Act, 1898, is as follows:—
"The Governor shall, subject to the provisions of these rules, prevent all intercourse or communication between the prisoners, so far as the conduct of the business of the prison or the labour of the prisoners will permit, and shall take care that all intercourse or communication between them shall be conducted in such manner only as he may direct. But the privilege of talking may be given after a certain period as a reward for good conduct on certain days, for a limited time, and under reasonable supervision, to such long-sentenced prisoners as have conducted themselves well, and who desire the privilege and are not deemed unsuitable for it."
Conformably to this rule, a prisoner who desires this privilege (and many do not desire it) and is not unsuitable for it, may, on Sundays, after a certain period of sentence, walk and converse with another prisoner, provided that such prisoner is of the same class, and that, in the opinion of the Governor, the association is not likely to be injurious. Female prisoners and invalids in hospital are allowed a large latitude in this respect.
The object of the regulations is not to impose a strict 'law of silence,' which is reasonably deemed 'unnatural,' but to prevent harmful and profitless gossip, and inter-communication between prisoners, which is not only dangerous from the point of view of order and discipline, but as furnishing a fertile source of corruption. Those who declaim against the 'law of silence,' in the same breath denounce the prison régime as a 'manufactory of criminals,' or as a 'nursery of crime.' In what way could criminals be better manufactured than by allowing a free intercourse, where evil designs and plottings, both for mischief inside and concerted crime outside the prison, would be fostered and encouraged?
Apart from the organized privilege of talking, allowed to well-conducted prisoners, there are many other ways in which their humanity is respected—the brightening of the daily Chapel service, with arrangements for choirs, singers, and instrumentalists taking part in the services: weekly missions in prisons: the delivery of moral and religious addresses by lay persons or members of religious bodies of any denomination: weekly classes, for which prisoners can be taken from labour, and where they may discuss among themselves selected subjects. These classes, referred to in a later Chapter, may be composed of 'Star' and Second Division prisoners, and even ordinary Third Division prisoners may be chosen to participate.
Lectures, with or without magic lantern, may be arranged on lay or sacred subjects, calculated to elevate and instruct prisoners, and containing an undoubted moral purpose and value.
Another innovation of recent years has been the issue to well-behaved prisoners who have completed six months of their sentences, of note-books and pencils, by whichthey are enabled in their leisure moments, to make a special study of some particular subject, which is likely either to be of benefit to them on discharge, or where their prospects on discharge might be impaired by the absence of any special means for maintaining the knowledge of any special subject which they previously possessed. Notes also may be taken from books regularly furnished from a well-stocked library, where such literary extracts are deemed to be of value to a prisoner for the improvement of his mental equipment.
By such methods and strivings to find the 'treasure that is in the heart of every man,' I venture to assert that there is, and has been now for many years, what Mr. Churchill described as the "tireless effort towards curative and regenerative processes," and this is the test of the virtue of a prison system, as it is also the test of the degree of humanity in the nation.
Our prison System has, in recent years, been subjected to a very severe test by the fact that, of necessity, penal treatment in prison, primarily designed for the criminal class, has been applied to thousands of individuals in no way belonging to that class, whom it has been necessary to commit to prison under the Defence of the Realm Acts, either as Conscientious Objectors to Military Service, or otherwise, for the safety of the realm. It is not denied that prison rules and regulations press hardly on men and women who, under normal circumstances, would never have become the subject of those punitive and repressive conditions, which are inseparable from the deprivation of liberty by the State. It may be said generally that the restraints of bondage were borne with courage and patience by the great majority of those who, under the special circumstances referred to, came within the jurisdiction of the prison Authority. To persons of refinement and education (as many were), the many restrictions necessary for the safe custody of criminals would naturally seem harsh, unnecessary, and even unnatural. No doubt their experience has given an impulse to the Prison Reformer, who, in his honourable zeal to soften the lot of the unfortunate captive, is apt to overlook the necessity for strict rules and regulations in dealing with a classto whose habits and instincts he himself is a total stranger. I think that, on the whole, it may be claimed for our Prison System that it has stood the test, and emerged from the search-light thrown upon its inner workings, with at least the admission that the humanities are not neglected: that it is doing its best with the very difficult material with which it deals, to save, encourage, and rehabilitate, when that is possible.
But good influence in prisons, and on prisoners, is a very subtle and mysterious thing. I remember being struck by a passage in the life of 'John Smith of Harrow', lately published. It was as follows: "In the conduct of school-life, it is the personal factor that works for inspiration: no perfecting of methods or machinery can ever replace this." This can be applied literally to prison life; and the first and principal duty of those who administer prisons is in the effort to secure this factor of personality in the selection of the superintending staff, not only of the superior staff—Governors, Chaplains, Medical Officers, and Matrons, but of all the subordinate grades, who are in daily touch with prisoners, and who by their conduct and bearing, and example, exercise a profound influence. We are fortunate in this country in possessing such a staff. It is not given to every man and woman to be capable of combining discipline with kindness: to be at the same time firm and gentle, to be inexorable in securing obedience, while, at the same time, adapting tone and method to the infinite mentalities and moralities to be found in Prison. It is not an exaggeration to say that harshness and abuse of authority are as rare in English Prisons as instances and examples of kind and considerate treatment are abundant; and this is the more admirable when we consider the temptations and difficulties of the task. It is in the upright and manly attributes of our Warder class, typical of the English national character, that a great reforming influence is to be found. Discipline with kindness is the watch-word of our Prison Staff, both in the higher and the lower ranks, and I can say confidently, having examined the condition of Prisons in many foreign countries, that in this respect, the 'tone' of English Prisons is unrivalled.
I have been referring so far to general reformatory influence of the Prison régime, so far as it operates generally with regard to adult prisoners, convicted of ordinary crime. There are two special categories of prisoners, where in recent years a notable departure has been made from prison regulations, in the direction of bringing to bear all those special 'stimuli' and encouragements which appeal to any better instincts that may be latent, and may inculcate laws of conduct which shall protect the offender from a relapse into evil-doing. These categories are (1) the Borstal lad, (2) the habitual offender. These represent the opposite poles of criminality—the beginning and the end of a criminal career.
In the Appendix will be found the special regulations for dealing with each, and from their perusal it will be seen that the motive power used is in the appeal to the sense of Honour. This appeal is conducted primarily, and necessarily, through the natural instincts which desire comfort and rewards in ordinary human beings. They are simple enough, but in their simplicity is their value, because they teach the homely lesson, which the older criminal may have forgotten, and the younger not yet learnt,viz:—that by good behaviour and industry, and a proved effort to profit by the encouragement they receive, they may pass from a lower to a higher grade, with increasing privilege and comfort, until in the ultimate stages they are placed entirely upon their Honour, employed in positions of trust, free from supervision, and even outside the walls of the establishment. In this way the re-entry into free life is facilitated: semi-liberty precedes full liberty, and by breaking the abruptness of the change, rehabilitation or re-settlement under normal conditions of life is achieved.
Thus the lesson is slowly learnt that there is a reward for industry and good conduct—not only in what can be gained in material comfort, but that the delicate plant of self-respect, in many cases withered, but not quite dead, can blossom again; and from self-respect follows the respect of others, of those in authority; and after release, of those with whom they associate in the outer world.
Those who have watched these two movements—atBorstal and Camp Hill—have been struck by their boldness; but in their boldness has been their great success. The Borstal and Camp Hill experiments exactly illustrate the true meaning of 'prison reform,'i.e., the building up of character on the basis of strict discipline, obedience, and order, tempered by progressive stages of increasing trust, liberty, and material improvement of status. When to these influences operating inside, while the man or woman is still in custody, is added the ever-watchful care of a highly organized system of help and protection, on which all can rely on discharge, if ready and willing to respond to advice given and help offered, 'Prison reform', in the sense of the reform of the individual prisoner, is realized in its best and most practical way. It is not Utopian: it is a fact which can be verified by the records of the Borstal and Central Associations, which deal on discharge with these two special categories. It is not achieved by newspaper articles or angry denunciation of the existing system, or by the formulation of abstract theories concerning prison treatment. It is achieved by "personality," inside and outside the penal institution—personality stimulated by a lofty conception of duty to God and man. To deny these reforming influences in English Prisons is to misrepresent wilfully, and in ignorance of the facts, the great and good work that is being done.
As to the future, there seems to me to be three directions in which those who are pressing for prison reform might usefully proceed:—
1. The organization of Probation on large and well-considered national lines.2. The application of some of the principles of Preventive Detention to our Penal Servitude system.3. The co-ordination, with a view to the prevention of crime, of all organized effort, collective and individual, now existing in this country, and of which most of the value is wasted from the absence of unity of aim, and of mutual co-operation.
1. The organization of Probation on large and well-considered national lines.
2. The application of some of the principles of Preventive Detention to our Penal Servitude system.
3. The co-ordination, with a view to the prevention of crime, of all organized effort, collective and individual, now existing in this country, and of which most of the value is wasted from the absence of unity of aim, and of mutual co-operation.
1. Though Probation is ancillary to the Prison System, and is closely allied to the actual administration of justice in the Courts of law, its method and working must be of profound interest and importance to all who desire to find alternatives, consistent with the due assertion of the law, to commitment to prison. This, as is so often said, should be the last and not the first resort. Custom, routine, and the fatal ease, and saving of trouble to all concerned, has, in the past, induced the tendency to regard the warrant of commitment to prison as the ordinary and only expedient for satisfying the claims of Justice. It is only of late years that the successful operation of Probation, orsursis á l'exécution de la peinein foreign countries, and notably in some of the States of America, has awakened a lively and growing interest in this method of finding an alternative to imprisonment; and here we have to steer a wise and prudent course between the Scylla of harsh infliction of a 'peine déshonorante' which imprisonment for a few days really is, and the Charybdis of undue leniency. This is the function of the Magistrate: on him depends a successful working of the system, and he must have a deciding voice as to its application. Put consistently with the free authority and discretion of the Court, it ought to be possible to create a national system, for which the Lord Chancellor, or Secretary of State, as Chief of the Magistracy, would be responsible. I would not advise the imposition of any official system independently of the Courts, but only that the political heads of the Judiciary should take steps to satisfy themselves that Probation, as a system, is working efficiently at every criminal court in the country, before whom offenders of all ages, liable to the penalty of imprisonment, are brought. It is the function of the Secretary of State to take steps to satisfy himself that the Police Forces of the country are working efficiently, without in any way interfering with the discretion of the local Police Authority in the management of their respective forces. This is done by a system of State-Inspection, and a certificate of efficiency when all is reported well. The same system might be applied to Probation. State control would only be exercised through an Inspector-General at Whitehall, who would be assisted by Chief Probation officers in the various judicial areas. These would be paid by the State, and a system could be devised by which the State granted a subsidy in aid of the salaries of the general body of Probation officers, who would be appointed locally under regulations approved by the Secretary of State. Such aid would be dependent, as in the case of Police, on an annual certificate of efficiency. By such means an admirable 'Salvage Corps' would be created. By 'Salvage' I mean a body of devoted men and women who, from knowledge of the character and history of individual cases, would be in a position to furnish the Courts with information and suggestions which would enable them to exercise a wise direction whether or not in any case Justice would be satisfied by granting a 'sursis', subject to satisfactory conditions and guarantees, to the penalty of imprisonment. Such a system would not conflict with the full authority and discretion of the Court, and would, at the same time, prevent Justice from striking blindly at the offender, by being in possession of material facts, which, under the present system, are often concealed from it.
Such a system would be a striking advance on the road of the individualization of the offender, which is the aim and purpose of the modern penal system in all civilized countries.
2. The principle of Preventive Detention, which might perhaps be extended with advantage, but with great care and prudence, to our Penal Servitude System, is that expressed by the Advisory Committee (Section 14 (4) of the Prevention of Crime Act, 1908, Part II), and the provision for After-care (Section 15 of the same Act).
Long sentences of penal servitude are now reported periodically to the Home Office for review and consideration. Without impinging in any way on the authority of the Court, which fixes the term of the sentence, it might be arranged that such reports should be accompanied by a report of an Advisory Committee, set up at each convict prison, whose opinion would be of value to the Secretary of State in deciding whether conditional licence underadequate safeguards could be granted, or whether the stern penalty of a sentence of penal servitude having been sufficiently expiated, there might be a commutation of the sentence to the less rigorous conditions of Preventive Detention. The great success which has attended the work of the Advisory Committee at Camp Hill seems to justify the extension of the principle, quite consistently with a due and exact regard for the interests of Justice and the protection of society.
Section 12 of the Prevention of Crime Act, 1908, gives power to the Secretary of State to commute in certain cases to Preventive Detention. An Advisory Committee could fitly advise as to the occasion for the exercise of this power.
3. In addressing the Central Committee of Aid Societies last year, I ventured to propose the foundation of a National Society for the Prevention of Crime. I was led to this proposal by the experience which has come to me in watching the operation of the great network of effort now employed in diverse capacities throughout the country, not only in the aid of prisoners discharged from ordinary or local prisons, but in the supervision of Borstal, Penal Servitude, and Preventive Detention cases through the admirable machinery of the Borstal and Central Associations. In addition to these recognised, and more or less State-aided, instruments for dealing with the actual offender, we have the preventive agencies for the supervision of cases discharged from Industrial and Reformatory Schools, as well as the large field of care and tutelage for those placed on Probation,—all these methods for after-care and prevention are co-ordinated with the help given by other benevolent or religious Societies, thus forming a compact whole of altruistic effort of what is known in France as 'Patronage', or a National life-saving apparatus.
My idea was to stabilize and unify all this somewhat unconnected effort by the formation of a Central Council, on which all persons or societies working in the field of reclamation, either of young or of old, could be brought, so to speak, under 'one umbrella'.
There would be Committees of such Central Council inevery selected area or district, on which would be represented the local Aid Society, the local Probation officer, the Associate of the Borstal and Central Associations, agents of the Reformatory and Industrial School Department, and any local representatives for dealing with the care and employment of the young.
To such a body would be affiliated the associations which exist in many parts of the country for the care of the mentally defective.
There is a growing appreciation on the part of Magistrates, and the public generally, of the close and often undiscovered association between crime and mental deficiency. Steps are now being taken, notably in the Midlands and the North of England, for establishing a co-operation between the Police Authority, the Courts of law, and Committees of the County Council, working under the Mental Deficiency Act. If such co-operation could become general throughout the country, a new and formidable 'preventive' against many acts of petty and repeated lawlessness would be created, and there is little doubt that many persons of both sexes who hitherto have spent their lives in and out of Prison—the despair of the Courts, a source of perpetual trouble to Police, and of nuisance to their neighbours, would, on inquiry, and mental observation, be found to be 'irresponsibles', and proper subjects for medical care, rather than the grim severity of ceaseless and useless imprisonment. The long and mournful roll of incurable recidivists would cease to haunt our prisons, and public places; and under Institutional care, would, at least, be removed from evil-doing, if they did not regain, under medical care, their opportunity for reinstatement in normal industrious life.
It is in these directions that I think that the hope of dealing effectively with the ever-present criminal problem lies. Let those who are anxious to get to the heart of this problem know that the solution lies, not in abstract theories of so-called Prison Reform: not in academical discussion of the best prison system to adopt: not in the old vexed controversies of the comparative value of the cellular or associated plan, but in patient observation of every human being, while in the custody of the State foran infraction of its laws, and in aiding the reconstruction of a life that has failed, by the adoption of a system of After-care, on the lines I have described, or, which is far better still, in endeavouring to create such a network of preventive work throughout the land, that, as a nation, we may rejoice in being able to feel that, at least so far as human effort can avail, Prison, with all its consequences, shall be the last and not the first resort, which, in the absence of well-organized preventive and curative measures, it has too often been in the past.
CHAPTER II.
THE PRISON COMMISSION: OFFENCES, AND PUNISHMENTS.
The prisons in England and Wales are divided into (a) Convict, and (b) Local.
(a) Convict Prisons were created specially to contain convicts under sentence of transportation prior to, or in lieu of, removal to the penal colonies, and were constituted by special Acts of Parliament passed from time to time, which provided for their separate administration and inspection. In 1850, they were all placed under a Board of Directors who exercise all the powers formerly vested in the various bodies who managed them.(b) Local Prisons.—By the Prison Act, 1877, county and borough prisons, which formerly belonged to the local authorities, were transferred to and vested in the Secretary of State, a permanent Commission, not exceeding five members, being created for the purpose of aiding the Secretary of State in carrying out the provisions of the Act.
(a) Convict Prisons were created specially to contain convicts under sentence of transportation prior to, or in lieu of, removal to the penal colonies, and were constituted by special Acts of Parliament passed from time to time, which provided for their separate administration and inspection. In 1850, they were all placed under a Board of Directors who exercise all the powers formerly vested in the various bodies who managed them.
(b) Local Prisons.—By the Prison Act, 1877, county and borough prisons, which formerly belonged to the local authorities, were transferred to and vested in the Secretary of State, a permanent Commission, not exceeding five members, being created for the purpose of aiding the Secretary of State in carrying out the provisions of the Act.
In 1878, when the local prisons were thus transferred, there were, therefore, a Board of Directors of Convict Prisons, consisting of four members (including the Chairman) and a Board of Commissioners, consisting of four members (including the Chairman). The then Chairman of the Directors was appointed also Chairman of the Commissioners; but, except to this extent, at that time no further amalgamation took place, each class of prisons being administered separately. The two Boards still have separate legal existence, but under the Prison Act, 1898, every Prison Commissioner is, by virtue of hisOffice, also a Director of Convict Prisons. The Boards are now, in fact, if not in law, amalgamated.
The control of all Prisons is thus vested in a body of Commissioners, who act subject to the control and authority of the Secretary of State, who is himself directly responsible to Parliament for the whole administration.
In addition to the Convict and Local Prisons, the Commissioners are also responsible for the administration of the Institutions established by the Prevention of Crime Act, 1908, for dealing with:—
(a) young offenders, 16-21—Borstal Institutions.
(b) habitual criminals under 'Preventive Detention.' They are also responsible for the care and control of Habitual Inebriates sentenced under the Act of 1898; but, as pointed out later in dealing with the question of Inebriety, there are, at the present time, no inmates in custody.
Offences against the criminal law can be classed generally into two divisions—Indictable (i.e.tried on indictment before a Superior Court): Summary (i.e.tried before a Court of Summary Jurisdiction). The Superior Courts are (1) Assizes: (2) General Quarter Sessions. (1) TheAssize Courtsare itinerant criminal tribunals created by Commission to Judges of the High Court to try prisoners presented for trial by the grand juries for the several Counties in which the Assize is to be held. They can try any indictable offence whatever, and are the most important of criminal Courts of first instance. In London, a special Court, known as the Central Criminal Court, has been created by Statute, having the same powers as Courts of Assize, and sits monthly. (2)Quarter Sessions.These are held once a Quarter, and were originally meetings of the Justices of the Peace of a particular County. More recently, certain cities and boroughs have obtained the privilege of a local Court of Quarter Sessions, presided over by a Recorder, who must be a barrister. These Courts can try all indictable offences except such felonies as are punishable by Penal Servitude for Life or by Death.
Summary Justice is administered generally by Petty Sessional Courts composed of unpaid local Magistrates, not necessarily of legal experience, nominated by the Lord Chancellor; but in the Metropolis and other Cities and populous places,e.g., Birmingham, Leeds, Liverpool,etc., by paid Stipendiaries who are barristers of standing and repute, appointed by the Crown. The great mass of petty offences against the law is dealt with by these tribunals. Of late years, the powers of the Summary Courts have been extended so as to include certain indictable cases. Thus, young persons under 16, when charged with any indictable offence whatever, except homicide, may be dealt with summarily, subject to certain conditions; also adults, when charged with various forms of larceny, theft, embezzlement, &c., where the value of the property stolen does not exceed twenty pounds.
The punishments that the Superior Courts can impose are, generally speaking, penal servitude for grave offences, and ordinary imprisonment for lesser offences. The special penalty of commitment to a Borstal Institution, or to a State Inebriate Reformatory, may only be imposed by a Superior Court. Superior Courts have, in addition, the power to order Whipping in the case of Robbery with Violence, and of persons deemed to be Incorrigible Rogues under the Vagrancy Act, and for the offence of Procuration, under the Criminal Law Amendment Act, 1912. They have power also to order a person to be placed under the Supervision of Police for a fixed period after his punishment. In the Summary Courts the principal punishment is by fine. According to the Judicial Statistics for 1913, fines were inflicted in about 88 per cent. of the cases convicted for petty offences. Where a fine is not paid, imprisonment is generally ordered to take place in satisfaction in lieu of the fine. Out of 128,686 persons committed to Prison by the Summary Courts in 1913-4, no less than 74,461 were imprisoned in default of payment of fine, the amount of imprisonment being regulated by statute in proportion to the amount of fine. Under the Criminal Justice Administration Act, 1914, it is now obligatory on the part of the Courts to allow time in which to pay the fine imposed. In 1918-19, the numberof persons received into prison in default of payment had fallen enormously, only 5,264 being received, or about 2 per cent. of the total sentenced by the Courts to pay a fine, as compared with 15 per cent. in 1913-14. Though the maximum term which may be imposed by Summary Courts is limited to six months, in practice the great majority of the sentences awarded do not exceed three months.
There are also the Juvenile Courts which deal with offenders under sixteen, as to which particulars are given in a later chapter.
There is power also under the Probation of Offenders Act, 1907, for any Court (either Superior or Summary) to release an offender on probation—the former, in lieu of imposing a sentence of imprisonment, or in the case of the latter, without proceeding to conviction. The offender may be discharged conditionally on entering into recognizances to be of good behaviour, and to appear for sentence or conviction at any time within three years. The Court may, in addition, order the offender to pay damages for injuries, or compensation. A recognizance under this Act may contain a condition that the offender shall be placed under the supervision of a Probation Officer, and other conditions may be that he shall not associate with undesirable persons, and that he shall abstain from intoxicating liquors, and, generally, that he shall lead an industrious life. Details as to the operation of the law will be given in a subsequent chapter.
Previously to 1907, there was no Court of Criminal Appeal. The general principle had been that in criminal cases no appeal was allowed to either party on any question of fact; the only resource for a wrongfully convicted man was to petition the Secretary of State. A prisoner now has an absolute right to appeal on any question of law, and, if leave be obtained, on any question of mixed fact and law. He also has the right to appeal against the sentence passed on him. Neither the Crown's Prerogative of Mercy, nor the powers of the Home Secretary to institute such inquiry as he may think fit, are affected by the Act.
The penalty of death is now practically restricted to casesof murder, although permitted by law in the case of treason, and certain forms of piracy and arson. The average number of capital sentences for the last ten years has been 25, and of these, 13 suffered the extreme penalty of the law.
I propose to commence the Study of the English Prison System by a short survey of the history of Penal Servitude,—an essential preliminary to an understanding of the System as it exists to-day.
CHAPTER III.
THE HISTORY OF PENAL SERVITUDE.
Penal Servitude was substituted for Transportation in the year 1853. It will be necessary to trace shortly the history of Transportation, so that the features of Penal Servitude, as they exist to-day, may be understood. Transportation is first mentioned as a punishment under an Act passed in the reign of Charles II, which empowered Judges to exile for life the moss-troopers of Northumberland to any of H.M. Possessions in America. It is stated that in the Bloody Assizes of 1685 Judge Jeffries sent no less than 841 persons to Transportation. It appears to have been the practice to subject these transported offenders to penal labour, and to employ them as slaves on the estates of the planters. An Act was passed in the reign of George I., giving to the persons who contracted to transport a property and interest in the service of such offenders. A great want of servants in the Colonies is one of the reasons assigned for this mode of punishment. In spite of this, however, many of the Colonies, especially Barbadoes, Maryland and New York, objected to having their wants supplied by these means, and with the War of Independence, transportation to America ceased.
It was about this time that, under the influence of Blackstone, Howard, and others, what was known later as the Penitentiary System for the treatment of Crime began to be considered in England, and an Act was passed in the year 1778 for the introduction into the Prison régime of the three factors on which the so-called Penitentiary System rested,viz:—separate confinement, hard labour, and instruction—secular and religious. Although the System was commenced in good earnest in a few places,e.g., Petworth and Gloucester, under the auspices of keen prison reformers(at these places, the Duke of Richmond and Sir G.O. Paul) it was not till some fifty years later that general interest was attracted by the experiments being made in the United States, where the rival Systems—"Cellular" and "Associated," as carried out at Philadelphia and Auburn, respectively, have become historical.
Although historically our Prison System may be said to date from the Prison Act, 1778, a long, dismal history of ill-considered administration was destined to intervene before the principles of penal science, as now understood, obtained expression. It is probable that the discovery of Australia by Captain Cook was the "mésure de circonstance" which determined the prison history of this country for nearly fifty years. The easy methods and means of transportation which this great Colony afforded, relieved Parliament of the necessity of inventing any new and wise methods for the punishment of crime. The system instituted in 1788 for the transportation of offenders to the Australian Colonies was regularly organized and extensively acted upon up to 1840. It could not, however, survive the condemnation of the Parliamentary Inquiry of 1837. It was condemned absolutely, as being unequal, without terror to the criminal class, corrupting to both convicts and colonists, and extravagant from the point of expense. This condemnation of the Colonial System followed closely on another Inquiry of the previous year into the Hulks, and the System of Imprisonment at home.
Transportation to New South Wales was abolished by Order in Council in 1840, and in the case of those still transported to Van Dieman's Land, a "progressive stage" system was instituted, under which convicts were able to gain a succession of privileges in different classes, terminating either in a ticket-of-leave in the Colony, or in a conditional or absolute pardon. This plan, however, failed, as the benefits of a gradually improving condition could not be realized from the fact that the supply of convicts was greater than the demand, and so they could not be absorbed when they had qualified for private service or employment. There was no employment to prevent these men from starving, and the Government were obliged to furnish subsidies and work. By 1846,accounts which had been received of the moral degradation of the convicts, crowded together in depôts, were of so alarming and deplorable a nature, that public opinion was deeply roused, and the two Ministers who were then responsible (Lord Grey at the Colonial Office and Sir George Grey at the Home Office) took the matter in hand. Transportation was stopped for two years, and it was generally agreed that it could not be resumed on the former plan. It was arranged that all convicts should undergo (1) a limited period of separate confinement at home, the advantages of which as a basis of discipline had been fully proved at Pentonville Prison: (2) that they should then be sent to associated labour on Public Works in this country, or at Gibraltar, and Bermuda, and (3) thence they should be removed on Ticket-of-Leave to any Colony disposed to receive them.
The history of Pentonville Prison is an essential guide to a clear understanding of the actual basis of our Penal Servitude, as well as of our ordinary Prison System. I have already stated that the Penitentiary idea, of which the basis is separate or cellular confinement, had found expression in an Act of Parliament of 1778, and that the idea had, owing to many circumstances, remained obscure till it was revived in the United States of America. In the second quarter of the last century Mr. Crawford, an Inspector of Prisons appointed under the Prison Act, 1824, (which had again endorsed the principle, although little or no effect was given to it) was sent to America to report on the question. Papers drawn up by himself and Mr. Russell, also an Inspector of Prisons for the Home District, were submitted to Parliament, and were widely discussed. In 1837, Lord John Russell, the then Home Secretary, issued a Circular to the Magistracy expressing his own conviction on the efficacy of separate cellular confinement, as a means both for the punishment of crime, and for the reformation of the offender. It was then decided to erect Pentonville Prison as a model Prison on the cellular plan for the purpose of practically working out a new system of Prison discipline. The Prison was occupied in December 1842. Commissioners were appointed to superintend the experiment, drawn from leadingmembers of the social and public life of the community. Two Medical Commissioners were also appointed to watch narrowly the effect on the health of the prisoners. The period of separate confinement was limited to eighteen months. The Second Report of the Commissioners expressed the opinion that the adoption of separate confinement, as established at Pentonville Prison, promised to effect a most salutary change in the treatment of criminals, and was well calculated to deter, correct, and reclaim the offender; and in their Fourth Report they stated that the Separate System was safe and efficient, and that generally the moral results of the discipline had been most encouraging, and were attended with a success which was without parallel in the history of prison discipline, and that it was the only sound basis on which a reformatory discipline could be established with any reasonable hope of success.
In virtue of these strong and unanimous opinions, the principle of Separate Confinement for the first stage of Penal Servitude was established, the period in the first instance not to exceed fifteen or eighteen months. At the end of that period the principle of employing convict labour on national works of importance was adopted, as affording, in connection with the reformatory influences brought to bear in separate confinement, the best means of training the men to those habits of industry which would fit them to earn an honest livelihood on discharge, either at home or abroad. The abolition of the Hulks was at the same time decided upon. The employment of a large body of convicts on what was called the "Public Works" System commenced a new era in the history of Prison Administration in England. It was a combined system applicable to all convicts: (1) a fixed period of separate confinement: (2) employment in association on Public Works at home for a period apportioned to the term of the sentence: (3) disposal with a Ticket-of-Leave in the Colonies. It was ordained that a convict "shall not pass out of the custody of the Government in the Colony until he shall be engaged, for at least a year, for service with some private employer. If suitable service cannot be obtained, the convict shall be employed by Government." The condition of the Ticket-of-Leave was that "theholder is required to remain in a particular district, must be at his dwelling from 10 o'clock at night to day-break, and must report himself periodically to the Police Officer of the district." This combined system of home discipline and colonial disposal depended for its success (1) on the character and conduct of the convict being such, while under the discipline of a Public Works Prison, that remission could reasonably be accorded with a view to expatriation: (2) that the Colony should be willing to receive convicts on Ticket-of-Leave,i.e., in a state of semi-liberty. In fact, convicts were able to render themselves ready for transportation after serving less than half the period of their sentence,e.g., two years, in a seven years' sentence, two-and-three-quarters in ten years, and so on. The claims to this remission were carefully estimated from daily records of conduct and industry kept by the subordinate officers. No Mark System, as now understood, was then in operation. A system of Badges (worn on the arm of every prisoner) was the principal incentive to good conduct. As soon as the letters "V.G." (Very Good) were inscribed on the Badge, he became eligible for a Ticket-of-Leave. Gratuities were also credited to well-conducted convicts for conduct and industry, respectively. There were three degrees of conduct, carrying 6d., 4d., andNILper week. There were three degrees of industry—VERY GOOD,GOOD, andNIL, carrying 9d., 4d., andNIL.
The first prisoners were embarked from Portland in 1849. Favourable accounts were received of their conduct from Van Dieman's Land and Australia. The System, however, which was bearing good fruits, only remained in operation till 1852, when Van Dieman's Land refused any longer to be made the receptacle for the disposal of malefactors from the Mother-Country, and the cessation of Transportation, and the release of so many desperate characters at home, caused the gravest apprehension in the public mind. There were at that time about 8,000 male convicts in the Convict Prisons in England, and at Bermuda and Gibraltar. The question arose whether the men should be released perfectly free, as had previously been the case of thousands discharged from the Hulks, or whether the plan of granting a Ticket-of-Leave on a principle which had long been established in the Colonies, should be adopted. The Penal Servitude Act, 1853, represents the decision of Parliament on the matter. That Act substituted sentences of Penal Servitude for those of Transportation, four years of the one being deemed equivalent to seven years of the other; and the Secretary of State was empowered to grant to a convict a licence to be at large during the unexpired portion of the original sentence of Transportation. Public opinion remained, however, restless and dissatisfied with the discharge of so many Ticket-of-Leave holders in the Mother-Country, and a formidable public agitation led to the appointment of a Select Committee of the House of Commons in 1856. The Penal Servitude Act of 1857 embodies their recommendation,viz:—that the terms of Penal Servitude should be extended to a period corresponding with former sentences of Transportation, and that every punishment by Penal Servitude should, in addition to separate Imprisonment and labour on Public Works, include a further period capable of being abridged by the good conduct of the convict himself,i.e., that there should be a remission of part of a sentence of Penal Servitude in the case of those convicts whose conduct in Prison was such as not to deprive them of the indulgence. The portion to be remitted varied from one-sixth in the case of a three years, or minimum, sentence, to one-third of a sentence of fifteen years and upwards. The principal punishment for serious crime became then what it has remained ever since, and involves a triple responsibility on the part of the Judge who passes the sentence, the Secretary of State who fixes the maximum amount of remission, and the Prison Authorities whose duty it is to keep a just account of the conduct and industry which will enable them to reckon the amount of remission to be granted.
What has since been known as the Progressive Stage System was introduced by regulations passed subsequently to the Act of 1857. They prescribed a period of nine months in separate confinement, the remaining term of the sentence being divided into three stages of discipline, representing three equal portions of the residue of thesentence. On passing from the first to the second Stage, prisoners were rewarded in the way of extra gratuities, badges, etc. On arriving at the third Stage, there was a further increase of privileges of the same nature, and a different dress from that of ordinary convicts was worn.
The object aimed at was to devise a useful system of progressive reformatory discipline, based upon a nice adjustment of the elements of hope and repression, but subject to the principle that the punishment due to the crime is the primary object, and that, consistently with that, no effort to reform should be neglected.
This idea of progressive reformatory discipline had, therefore, an entirely English origin, and was the result of the tireless efforts made at that time by Sir Joshua Jebb, and his colleagues, to devise a system for the punishment of serious crime in lieu of Transportation. It retained such features of the Colonial System as it was practicable to engraft on the system of Penal Servitude at home, although this latter involved a longer term of detention in actual custody with diminished prospect of employment on discharge.
It betrays a curious ignorance of the English System that the origin of this idea has become historically attributed to an Irish source. Idle principle which had been established with so much care at Pentonville and Portland was introduced into Ireland by Sir Joshua Jebb himself, when, in consequence of the number of convicts in that country rising from 700 to two or three thousand, he was ordered by the Government to proceed to Dublin, and advise the Prison Authority there with a view to the adoption of the Progressive System. The English Rules were, as far as possible, applied at Spike Island and at Mountjoy. In 1850, a few years later, Sir Joshua Jebb was again ordered by the Government to proceed to Ireland, but as he was unable to go, Captain Knight, Governor of Portsmouth Prison, took his place, with the result that a Board of three Directors was formed, (of which Captain Knight was a member) who entered upon their duties in 1854. Captain Crofton, Chairman of the Board, stated in evidence before a Committee of the House of Commons that he had followed out the English System,and in the Report for 1855 it is stated that the System of Progressive Classification continued to have an excellent effect. The only difference in the Irish System was the adoption of an Intermediate Stage before discharge followed by Police Supervision, both the conditions having been established as elements of the English System in the Colonies. This part of the Colonial System was not, however, adopted in England, as the Government naturally shrank from the great and novel responsibility of finding employment in England for discharged convicts. Ireland, however, with its rural and scattered population, its demand for labour, and its centralized police, afforded facilities both for securing employment, and, with it, police supervision, which should not be hostile, as a system ofespionage, but friendly in its character, and from knowledge of local circumstances, calculated to promote the welfare of the convict. The relatively small number of convicts in Ireland rendered easy the introduction of the so-called Intermediate System, which was simply the collection of the better-disposed convicts previous to their discharge in centres under easy discipline, with a view to disposal under favourable conditions. The strong belief which existed at the time that the so-called Irish System was producing results which were unprecedented was due to the economic history of the country. During the years when the system was introduced, it happened that Ireland was passing through a crisis without parallel in the history of Europe. The crisis included a famine, a pestilence, an exodus, a transfer of large areas of land to a new proprietary, and the introduction of a new Poor Law. The population was decimated three times between 1845 and 1861. Towards the end of this period, work became plentiful, and wages rose as much as one hundred per cent. At the same time, in England the population was increasing, work was difficult to find, there was no centralized police as in Ireland, and any comparison between the results of the two Progressive Systems would have been valueless, the conditions being so entirely different.
Owing to an increase of serious crime in the early 'sixties, public attention was again called to the system of punishment in force, and a Royal Commission wasappointed to enquire into the operation of the Penal Servitude Acts. It was found that the late increase in crime coincided in point of time with the discharge of convicts sentenced for short terms,i.e., for three years under the Act of 1857; and it was proposed that the minimum term of penal servitude should be increased, and that longer sentences should be passed on persons guilty of habitual crime. The Commissioners pointed also to defects in the methods of identification: they objected to reconvicted convicts not receiving remission, and believed that it would be more effectual to pass long sentences on reconvicted prisoners than to remove the chief inducement to industry and good conduct. They found fault with the Regulations made under the Act of 1857, on the ground that they did not indicate to convicts with sufficient clearness that remission could only be earned as a reward for industry and conduct. They objected to giving credit for general good conduct as well as for industry, on the ground that the mere abstaining from misconduct gives no just claim for reward. They advocated the adoption of the Mark System as introduced into Australia by Captain Maconochie, and, subject to a considerable remission of punishment earned under this system, they were in favour of longer sentences. They came further to the opinion that the Irish System of Police Supervision should be adopted in England. They thought that the sentence of Penal Servitude should be for not less than seven years, subject to the concession that the third of a period would be remitted under the operation of the Mark System, when the highest industry had been maintained. They were in favour of continuing Transportation to Western Australia: they pronounced against the high rates of gratuities which convicts in England were entitled to receive, and regarded favourably the system by which convicts in the Irish Intermediate Prisons, and the "road parties" in Western Australia were allowed to spend a weekly portion of their earnings in procuring for themselves certain indulgences. Appended to the Report of the Commission was a Memorandum by Lord Chief Justice Cockburn, which has become historical as laying down the principles which, in his opinion, ought to beobserved in the punishment of offenders,viz:—
"These purposes are twofold; the first, that of deterring others exposed to similar temptations from the commission of crime; the second, the reformation of the criminal himself. The first is the primary and more important object: for though society has, doubtless, a strong interest in the reformation of the criminal, and his consequent indisposition to crime, yet the result is here confined to the individual offender, while the effect of punishment, as deterring from crime, extends not only to the party suffering the punishment, but to all who may be in the habit of committing crime, or who may be tempted to fall into it. Moreover, the reformation of the offender is in the highest degree speculative and uncertain, and its permanency, in the face of renewed temptation, exceedingly precarious. On the other hand, the impression produced by suffering, inflicted as the punishment of crime, and the fear of its repetition, are far more likely to be lasting, and much more calculated to counteract the tendency to the renewal of criminal habits. It is on the assumption that punishment will have the effect of deterring from crime that its infliction can alone be justified, its proper and legitimate purpose being not to avenge crime but to prevent it. The experience of mankind has shown that though crime will always exist to a certain extent, it may be kept within given bounds by the example of punishment. This result it is the business of the lawgiver to accomplish by annexing to each offence the degree of punishment calculated to repress it. More than this would be a waste of so much human suffering; but to apply less out of consideration for the criminal is to sacrifice the interests of society to a misplaced tenderness towards those who offend against its laws. Wisdom and humanity, no doubt, alike suggest that if, consistently with this primary purpose, the reformation of the criminal can be brought about, no means should be omitted by which so desirable an end can be achieved. But this, the subsidiary purpose of Penal Discipline, should be kept in due subordination to its primary and principal one. And it may well be doubted whether, in recent times, the humane andpraiseworthy desire to reform and restore the fallen criminal may not have produced too great a tendency to forget that the protection of society should be the first consideration of the lawgiver."
The views of the Lord Chief Justice on the value of Police Supervision, and Ticket-of-Leave, and the aspect from which he regarded the value of the Irish Intermediate System attracted much attention at this time. He stated:—
"Those who advocate remission, make supervision an essential element in their system, as necessary not only for the security of the public, but also for the protection of the convict himself when first set free and exposed anew to temptation. But it may be questioned first, whether supervision is practicable; secondly, whether, if practicable, it is not more mischievous than beneficial. There can be little doubt that by change of name, and change of locality, which, as we have just seen, is largely resorted to for this purpose, holders of Tickets-of-Leave can without much difficulty elude the vigilance of the police; and no adequate means have been suggested for satisfactorily overcoming this difficulty. But a far more serious objection arises from the fact that, at least in this country, any supervision by the police, or other officer appointed for the purpose, would be fatal to the convict's chance of employment, on which his continuing in the right course, if so disposed, so materially depends. Police supervision is incompatible with the concealment of the man's antecedents, while, in the great majority of instances, the well-doing of the convict must depend on his secret being kept. Few masters would employ a man who was known to be a convicted felon, and an equal obstacle would be found in the disinclination of other labourers to be associated with one thus degraded. It would seem, therefore, that if remission is to be continued, it would be better that it should not be attended by any attempt at supervision, the beneficial effects of which, from the difficulty of carrying it out, are doubtful, while its mischievous tendency, so far as relates to the welfare of the convict, is apparent. It would seem to be better to leave the liberated convict totake his chance of finding employment and making his way as he can, than to fetter him with a clog which may prevent the possibility of honest exertion."
It was in consequence of the Report of the Commission that in 1864 an Act was passed raising the minimum sentence of Penal Servitude from three to five years. The Act also authorized any two or more Justices of the Peace to exercise powers of corporal punishment for offences against Prison discipline, hitherto vested exclusively in one of the Directors, the Commission of 1863 having expressed the opinion that acts of violence committed by convicts were not punished with sufficient promptitude or severity. This measure also enacted the principle that a convict on licence should report periodically to the Police of the district in which he should reside, and any failure to comply with the conditions imposed in the licence might result in its forfeiture, and in the re-committal of the holder to Prison.
As a result of this measure, the Progressive Stage System, through which convicts passed on their road to remission, was further defined and elaborated, and the Mark System as now in operation was instituted. Every convict was required to earn by actual labour a certain number of marks, proportioned to the length of his sentence, to enable him to purchase, as it were, any remission of sentence, or to advance from the lower to the higher class. Although misconduct would involve a forfeiture of marks, the marks are allotted simply for actual industry, as shown by the amount of work done, and are checked by the actual measurement of the work, where such is possible. The Directors, in their Report for 1865, comment on the introduction of the system as follows:—
"The value of the Mark System when honestly administered is, that it gives a tangible idea to the convicts of the value of their daily labour, and our endeavour has been to impress upon them that they must earn these marks to gain the advantages held out to them of remission of sentence and advancement in classes. Like any other system of recording the conduct and industry of convicts, the Mark System requires careful watching, to prevent it from degenerating into mere routine, and to avoid favouritismor intimidation. We have under existing circumstances the advantage that the convicts are employed in important Public Works, which admit of accurate measurement and valuation; and we think the checks we have adopted are sufficient to guarantee that whatever the convicts do earn will be earned by fair labour accompanied by good behaviour. It is very satisfactory to us to state, that although none of the officers of the English Convict Prisons had any previous experience of the working of the Mark System, which might naturally be expected to be regarded with some kind of suspicion, its success has far exceeded our expectations. The Governors and the subordinate officers have devoted themselves very zealously to master the principles and details of the Mark System, and have entered into the spirit of the measure with great zeal, and the testimony of the Governors to the beneficial results on the labour and industry of the convicts is very gratifying. The convicts themselves take a lively interest in the account of their marks, which they watch with earnestness, and fully avail themselves of the privilege of bringing before the Directors any grievance they think they have respecting them."
The Mark System, as then introduced, has remained in operation ever since, and may be regarded as the fundamental principle of the Penal Servitude System. We have not at our disposal to-day the same amount of "Public Work," strictly so-called,i.e., buildings, harbour-making, &c., and the allocation of marks cannot be checked to the same degree by actual measurement of work done, but the record of daily industry, whatever the employment may be, is strictly kept. The gain or loss of marks, either for remission or stage, constitutes the reward or punishment lying at the root of convict discipline. As will be explained in a later Chapter, this has been applied also to the Local Prison System,mutatis mutandis, in common with many other features in the Convict Prisons, which, previous to the Prison Act, 1877, were alone under the direct control of the Government.
At the same time a considerable reduction was made in the large amount of gratuity paid to convicts, and themaximum earnable was reduced to £3, irrespective of length of sentence, with power to grant a further bonus of £3.
The changes resulting from the Royal Commission of 1863, and the Penal Servitude Act of 1864, were generally satisfactory as tested by the number of persons sentenced to penal servitude. The Authorities reported in 1871 that there was good reason to believe that great progress had been made in solving the difficulty of forming an effective system of Secondary Punishment. Although in that year there was a considerable increase in the number of reconvictions to penal servitude, this was due to an alteration in the law brought about by the Habitual Criminals Act, 1869, and the Prevention of Crimes Act, 1871, by which greater facilities were given to the Police for the detection of habitual criminals, the proportion of recommittals depending more on the activity of the Police and means of identification at their disposal than on any changes in the Prison System. The Act of 1871 provided that a person convicted a second time on indictment might be sentenced to be subject to Police Supervision for a number of years, not exceeding seven, after the expiration of his sentence. During such period he is required to notify his place of residence to the Police, and to report himself to them monthly, in default of which he is liable to imprisonment. The Act also imposed similar obligations and penalties on persons released from penal servitude, and, further, if it were proved that the convict was living dishonestly, he would be liable to be sent back to prison to undergo the remainder of his unexpired portion of penal servitude. The effectual supervision of a discharged convict, which resulted from these provisions, began to show itself in an increase both in the number of sentences to Penal Servitude and in the number of reconvictions. In the year 1876, these latter had nearly doubled during the past two decades, rising from 11 to 21 per cent.