Henceforth we must seek, through the study of facts, a
better direction for penal legislation as a function of society,
so that, by the observation of psychological and sociological
laws, it may tend, not to a violent and always tardy reaction
against crime already evolved, but to the elimination or diversion
of its natural factors.
better direction for penal legislation as a function of society,
so that, by the observation of psychological and sociological
laws, it may tend, not to a violent and always tardy reaction
against crime already evolved, but to the elimination or diversion
of its natural factors.
Criminal Sociology by Enrico Ferri
1.
1 .
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48 .
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61
1856-60 . . . . . . 1 . . . . . . 49 . . . . . . . . . 61
1861-5 . . . . . . . 6 . . . . . . 48 . . . . . . . . . 64
1866-9 . . . . . . . 5 . . . . . . 47 . . . . . . . . . 68
1872-6 . . . . . . . 7 . . . . . . 49 . . . . . . . . . 66
1877-81 . . . . . . . 7 . . . . . . 50 . . . . . . . . . 66
1882-6 . . . . . . 1 . . . . . . 49 . . . . . . . . . 65
These figures, if they do not show (as might have been foreseen)
so large an increase of severity as in the percentages of
acquittals, yet prove that repression has not diminished even in
the serious character of the punishments. On the other hand, we
can see that, in the assize cases, excluding the first period,
before the revision of 1832, whilst capital punishment shows a
certain diminution (especially due to the laws of 1832, 1848, &c. ,
which reduced the number of cases involving the death penalty),
though continuing at a certain level since 1861, sentences of
penal servitude and solitary confinement show a continued
increase from the second period, and especially since 1851.
So also at the Tribunals, except for a few oscillations, as in the
ninth period, there is a sustained increase of repression.
And the fact that this increased ratio of the more serious
punishments actually indicates a greater severity on the part of
the judges can only be contested on the ground of a simultaneous
increase of the more serious crimes and offences. On the other
hand, we note in France a general decrease of crimes against the
person (except for assaults on children), and still more of crimes
against property.
There is also a striking confirmation in the corresponding
acquittals and condemnations of a more serious character. We see,
in fact, that the more serious condemnations increase precisely
when the acquittals decrease (as in the 4th, 6th, 7th, and 10th
periods at the Assizes, and the 2nd, 5th, and 8th periods at the
Tribunals); whilst in the years of more frequent acquittals there
is also a diminution of more serious punishments, as in the 5th
and 8th periods at the Assizes. That is to say, the two sets of
statistics actually indicate a greater or less severity on the
part of juries and judges.
This firmer repression is demonstrated in spite of the continued
increase of attenuating circumstances, which rose at the Assizes
from 50 per cent. in 1833 to 73 per cent. in 1806, and at the
Tribunals from 54 per cent. in 1851 to 65 per cent. in 1886.
Nevertheless it is a fact that the number of cases tried by
default at the Assizes has continuously decreased from a
yearly average of 647 in 1826-30 to one of 266 in 1882-6.
For Italy we have the following figures:
{column missing head? }
PRETORS. TRIBUNALS. ASSIZES.
------------------------------------------
Condemned to Imprisonment. Condemned Penal Servitude
Slighter imprisonment. to death. for life. temporary punishts
1874 21 79 1. 2 5. 6 65 28
5 22 80 1. 3 6. 5 63 29
6 23 81 1. 3 6. 1 66 27
7 24 82 1. 5 7. 2 66 25
8 25 85 1 7. 6 67 25
9 25 -- 1. 2 6. 3 67 25
1880 26 -- 1. 3 5. 5 68 25
1 24 81 1. 7 6. 1 65 27
2 23 81 1. 5 6 66 27
3 23 81 1. 7 5. 4 64 29
4 23 81 1. 3 5. 3 64 30
5 23 81 1. 6 5. 4 63 30
6 21 81 1. 6 5. 7 62 30
7 21 83 1. 1 5. 8 63 30
8 21 82 1. 2 4. 7 65 29
Thus, once more, there has been no relaxation of repression,
except in late years for those condemned by the Pretors to penal
servitude for life.
The conclusion, therefore, is still the same, namely that judicial
repression, in France and Italy, has grown stronger and stronger,
whilst criminality has increased more and more.
In this fact, again, which confutes the common opinion that the
sovereign remedy of crime is the greater rigour of punishment, we
may fairly find a positive proof that the penal, legislative, and
administrative systems hitherto adopted have missed their aim,
which can be nothing else than the defence of society against
criminals.
Henceforth we must seek, through the study of facts, a
better direction for penal legislation as a function of society,
so that, by the observation of psychological and sociological
laws, it may tend, not to a violent and always tardy reaction
against crime already evolved, but to the elimination or diversion
of its natural factors.
This fundamental conclusion of criminal statistics is so important
that we must confirm it by adding to the statistical data the
general laws of biology and sociology. This is the more necessary
because my position as first stated has met with some criticism.
In the first place, it is easily seen, when we compare the total
result of crime with the varied character of its anthropological,
physical, and social factors, that punishment can exert but a
slight influence upon it. Punishment, in fact, by its special
effect as a legal deterrent, acting as a psychological motive,
will clearly be unable to neutralise the constant and hereditary
action of climate, customs, increase of population, agricultural
production, economic and political crises, which statistics
invariably exhibit as the most potent factors of the growth or
diminution of criminality.
It is a natural law that forces cannot conflict or neutralise each
other unless they are of the same kind. The fall of a body cannot
be retarded, changed in direction or accelerated, save by a force
homogeneous with that of gravity. So punishment, as a
psychological motive, can only oppose the psychological factors of
crime, and indeed only the occasional and moderately energetic
factors; for it is evident that it cannot, as a preliminary
to its application, eliminate the organic hereditary factors which
are revealed to us by criminal anthropology.
Punishment, which has professed to be such a simple and powerful
remedy against all the factors of crime, is therefore a panacea
whose potency is far beneath its reputation.
We must bear in mind a fact which is familiar enough, though it
has been too often forgotten by legislators and criminalists.
Society is not a homogeneous aggregate, but on the contrary an
organism, like every animal organism, composed of tissues of
varying structure and sensibility. Every society, in fact, with
its progressive and increasingly distinctive needs and
occupations, is a product of the union of social classes which
differ greatly in their organic and psychical characteristics.
The physical constitution, the habits, sentiments, ideas, and
tendencies of one social stratum are far from being the same as
those of other strata. Here again we have, as Spencer would say,
the law of evolution through a departure from the homogeneous to
the heterogeneous, from the simple to the complex, or, in the
words of Ardigo, a natural formation by successive distinctions.
Amongst savage tribes this distinction of the social strata does
not exist, or it is far less marked than in barbarian societies,
and still less than in civilised societies.
Every schoolmaster with a bent for psychological observation
separates his pupils into three classes. There is the class of
industrious pupils of good disposition, who work of their own
accord, without calling for strict discipline; that of the
ignorant and idle (degenerate and of weak nervous force) from whom
neither mildness nor severity can obtain anything worth having;
and that of the pupils who are neither wholly industrious nor
wholly idle, and for whom a discipline based on psychological laws
may be genuinely useful.
This is the case with large bodies of soldiers or of prisoners,
for all associations of men, and for society as a whole. These
partial organisms, due to the constant relationships of a life
more or less in common, are in this respect reproductions of
society as a whole, just as a fragment of crystal reproduces the
characteristics of the unbroken crystal. [13]
[13] There is, however, some difference between the manifestation
of the activity of a group of men and that of the aggregate
society. Between psychology which studies the individual, and
sociology which studies the society, I think there is room for a
collective psychology, to study more or less defined groups.
The phenomena of these groups are analogous, but not identical
with those of the sociological body properly so called, according
as the union is more or less definite. Collective psychology has
its field of observation in all unions, however occasional, such
as the public street, the markets, workshops, theatres meetings,
assemblies, colleges, schools, barracks, prisons, and so forth.
Many practical applications of the data of collective psychology
might be given. An example will be found in a future chapter,
when I come to consider the psychology of the jury.
In the same way, from the standpoint of criminal sociology, we may
divide the social strata into three analogous categories--the
highest, which commits no crimes, organically upright, restrained
only by the authority of the moral sense, of religious sentiments
and public opinion, together with the hereditary transmission of
moral habits. This class, for which no penal code would be
necessary, is unfortunately very small; and it is far smaller if,
in addition to legal and apparent criminality, we also take
into account that social and latent criminality through which many
men, who are upright so far as the penal code is concerned, are
not upright by the standard of morality.
Another class, the lowest, is made up of individuals opposed to
all sense of uprightness, who, being without education,
perpetually dragged back by their material and moral destitution
into the primitive forms of the brute struggle for existence,
inherit from their parents and transmit to their children an
abnormal organisation, adding degeneration and disease, an
atavistic return to savage humanity. This is the nursery of the
born criminals, for whom punishments, so far as they are legal
deterrents, are useless, because they encounter no moral sense
which could distinguish punishment by law from the risk which also
attends upon every honest industry.
Lastly we have the other class of individuals who are not born to
crime, but are not firmly upright, alternating between vice and
virtue, with imperfect moral sense, education and training, for
whom punishment may be genuinely useful as a psychological motive.
It is just this class which yields the large contingent of
occasional criminals, for whom punishments are efficacious if they
are directed in their execution by the axioms of scientific
psychology, and especially if they are aided by the social
prevention which reduces the number of opportunities of committing
crimes and offences.
Once again I must express my agreement with M. Garofalo, who, in
dealing with this subject, insists on the necessity of
distinguishing between the different classes of criminals before
deciding as to the efficacy of punishments.
Yet this conclusion as to the very limited efficiency of
punishments, which is forced upon us by facts, and which, as
Bentham said, is confirmed by the application of each punitive
act, precisely because its previous application did not succeed in
preventing crime, is directly opposed to general public opinion,
and even to the opinion of jurists and legislators.
On the inception or the growth of a criminal manifestation,
legislators, jurists, and public think only of the remedies, which
are as easy as they are illusory, of the penal code, or of some
new Act of repression. Even if this were useful, which is very
problematical, it has the inevitable disadvantage of making men
ignore other remedies, far more profitable, albeit more difficult,
of a preventive and social kind. And this tendency is so common
that many of those who have dwelt upon or accepted the positive
movement of the new school, not long after they had admitted that
I was in the right, declared impulsively that ``the constant
commission of crime arises from the lack of timely repression,''
and that ``one of the chief causes of the growth of crime in Italy
is the mildness of our punishments. '' Or else they forgot to ask
themselves the elementary question of criminal sociology, whether
and how far punishments have a genuinely defensive force. This is
just what happens with pedagogues who enter upon long discussions
on the various methods and means of education, without
asking themselves beforehand whether and how far education has the
actual power of modifying the temperament and character which
heredity stamps upon every individual.
These conclusions take us far beyond the limit of penal severity,
and at the same time they suffice to combat the objection commonly
raised against those who think, like ourselves, that repressive
justice ought to concern itself not with the punishment of past
crime, but with the prevention of future crime. For whilst the
advocates of severity, and those whom I will call the
``laxativists,'' virtually think (apart from a few platonic
statements) only of punishments as remedies of offences, we on the
other hand believe that punishments are merely secondary
instruments of social self-defence, and remedies ought to be
adapted to the actual factors of the offence. And since the
social factors are most capable of modification, so we say with
Prins that ``for social evils we require social cures. ''
M. Tarde, then, was not quite accurate in his remark that my
conviction as to the very slight efficacy of punishments is a mere
consequence of my ideas on the anthropological and physical
character of crime, and that, ``on the contrary, the
preponderating importance which he has assigned to the social
causes logically debars him from accepting this conclusion. '' As
a matter of fact, punishment regarded as a psychological motive so
far as it is a legal deterrent, and as a physical motive so far as
it implies the confinement of the person condemned, would more
naturally belong, in abstract logic, to the biological and
physical theory of crime. Whereas it is precisely because I
recognise the influence of social environment, in addition, that
experimental logic convinces me that punishment is not an
efficacious remedy of crime, unless forces are applied beforehand
to neutralise, or at any rate to counteract, the social factors of
crime.
And if this is not a new conclusion, as one of our critics
observes by way of reproach--as though it were not one of the
characteristics of truth to repeat itself persistently, however
much it may be forgotten or even opposed--we must nevertheless
remark that it is now repeated with a mass of new observations and
definite applications, which give it a force unknown to mere
logical deductions.
The classical school has concerned itself simply with mitigation
of punishment as compared with mediaeval excess; and for this
reason, because every age has its own mission, it could not also
concern itself with the prevention of crimes, which is far more
useful and efficacious. A few isolated thinkers, it is true,
wrote a few bold and far-reaching pages on preventive methods in
opposition to the numerous volumes on punishment; but their words
had no effect upon criminalists and legislators, because science
had not yet undertaken the positive and methodical observation of
the natural factors of crime.
I will confine myself to a few examples, in order to show that
amongst practical men, as amongst public officials and
legislators, the illusion that punishments are the true panacea of
crime is always predominant.
Practical men declare that ``the prohibitive penal law ought to be
regarded as the first and most important of preventive laws. ''
The prefets in their circulars, being concerned about the
increase of crime, put forward the most vigilant and severe
repression as a sovereign remedy. A counsellor of the French Cour
de Cassation writes that ``in a worthy system of social police
there is no better guarantee for order and safety than
intimidation. '' The Keeper of the Seals, in his report on French
penal statistics for 1876, speaking of the continued increase of
indecent assaults, comes to the conclusion that ``in any case,
only firm and energetic repression can avail against a lamentable
increase of crimes against morality. '' And more recently another
Keeper of the Seals ended his report on the statistics of 1826 to
1880 by observing that ``the growth of crime can only be opposed
by an incessantly vigorous repression. '' M. Tarde agreed with
this conclusion, saying that ``if crimes are only, as has been
said, railway accidents of a society travelling at full speed, it
must not be forgotten that, the faster the train, the stronger
must be the brake . . . and it is certain that such a state of
affairs demands an increase or a new departure of repression and
punishment. ''
It may be admitted that our conclusion is not a novelty; but, as
Stuart Mill said, there are two ways of effecting useful
innovations, to discover what was not known before, or else to
repeat with new demonstrations the truths which had been
forgotten.
And this illusion as to the influence of punishments is so
widespread that it is well to inquire into its historic and
psychological arguments; for, as Spencer says, in order to decide
as to the value of an idea, it is useful to examine its genealogy.
We may pass by the foundation of primitive vengeance, which from
the age of private combats passed into the spirit and form of the
earliest penal laws, and still subsists as a more or less
unconscious and enfeebled residuum in modern society. We may also
pass by the hereditary effect of the traditions of mediaeval
severity, which excite an instinctive sympathy for stern
punishment in connection with every crime.
But one of the main reasons of this tendency is an error of
psychological perspective, whereby men have forgotten the profound
differences of the ideas, habits, and sentiments of the various
social strata, concerning which I have spoken above. Through this
forgetfulness the honest and instructed classes confound their own
idea of the penal law, and the impression it makes upon them, with
the idea and the impression of the social classes from which the
majority of criminals are recruited. This has been remarked upon
by Beccaria, Carmignani, and Holtzendorff amongst the classical
criminalists, and by Lombroso and others of the new school who
have studied the slang and literature of criminals, which are
their psychological mirror. Again, it is forgotten that for the
higher classes, apart from their physical and moral repugnance
against crime, which is the most powerful repelling force, there
is the fear of public opinion, almost unknown amongst the classes
which have stopped short at a lower stage of human
evolution.
For the higher classes one example may suffice. It is the fact
observed upon by Mr. Spencer, that gambling debts and Stock
Exchange bargains are scrupulously discharged, though for them
there is neither penal obligation nor evidence in writing. And it
may be added that imprisonment for debt never promoted the
fulfilment of contracts, nor has its abolition discouraged it.
As for the lower classes, one visit to a prison suffices. There,
if you ask a prisoner why the punishment did not deter him from
the crime, you generally get no answer, because he has never
thought about it. Or else he replies, as I have often found, that
``if you were afraid of hurting yourself when you went to work,
you would give up working. '' These indeed are what one would
expect to be the feelings prevailing amongst the lower social
strata, to whom honest sentiments and ideas, which for us are
traditional and organic, come very late--just as Mr. Stanley
observed that the people in Central Africa are only now beginning
to employ stone guns, which in past ages were used in Europe.
Another fallacy which helps to strengthen confidence in
punishments is that the effect of exceptional and summary laws is
treated on the same basis as that of the ordinary codes, slow and
uncertain in their procedure, which saps all their force by the
chance of immunity, and the interval between the unlawful act and
its legal consequence.
Lombroso and Tarde, indeed, have confronted me with
historic examples of vigorous and even savage repressions, whereby
it was possible to stamp out some epidemic crime. But these
examples are not conclusive, for I have shown that, as soon as
these exceptional repressions were at an end, as, for instance,
after the death of Pope Sixtus V. , brigandage and other crimes
were persistently renewed. But my main rejoinder is this, that
these exceptional repressions depend upon the jus belli; and
therefore cannot enter into the ordinary and constant methods of
penal administration. This may not have the effect of an
extraordinary repression, secured by a somewhat unscrupulous
promptitude, which strikes innocent and guilty alike; and thus it
is impossible to treat as equal, or even to compare, the influence
of methods which are essentially different.
Another false comparison is drawn between the effective force of
various punishments, and their potentiality is confounded, whereas
it is necessary to distinguish the punishment of the written code
from that of the judge, and still more from that carried into
execution. In fact it is only natural that punishment should more
or less terrify the criminal who has been judged and is about to
be condemned; but this in no way proves its efficacy, which should
have been displayed by the menace of the law in guarding the
prisoner against the crime. Even with the death penalty, there
are many instances of condemned persons who, through congenital
insensibility, submit to it cynically. Moreover, for such as have
been overwhelmed with terror when the moment of execution arrived,
the utmost that this fact can prove is that they are so
constituted as to give themselves up completely to the impression
of the moment, without the energy to resist it. In other words,
so long as the punishment is distant and uncertain, they were not
terrified, but having always yielded to the impression of the
moment, they yielded to the criminal impulse.
For other punishments, also, it is known that punitive methods,
even when not contrary to the law, as they sometimes are in Italy,
are always less stern than simple folk imagine when they read the
codes and the sentences. And criminals naturally judge of
punishments by their own experience, that is to say, in accordance
with their practical application, and not with the more or less
candid threats of the lawmaker.
If we add to vindictive feeling, historic traditions, oblivion of
bio-psychic differences of the social strata, the confounding of
exceptional laws and ordinary punishments, and of the varying
effective force of punishment, the attitude of the public mind and
the natural tendency of criminalists to think only of their two
syllogistic symbols of crime and punishment--if we further add the
easy-going idea of the multitude, that the inscribing of a law in
the statute-book is a sufficient remedy for social diseases, we
can readily understand how this exaggerated and illusory
confidence in punishment is so persistent, and crops up in every
theoretical or practical discussion, in spite of the strong
refutation which is daily afforded by facts and psychological
observation.
All human actions, like the actions of animals, are developed
between the two opposite poles of pleasure and pain, by the
attraction of the former and the repulsion of the latter. And
punishment, which is one of the social forms of pain, is always a
direct motive in human conduct, as it is also an indirect guide,
by virtue of its being a sanction of justice, unconsciously
strengthening respect for the law. But still this psychological
truth, whilst it demonstrates the natural character of punishment,
and the consequent absurdity of abolishing it as absolutely void
of efficacy, does not destroy our conclusion as to the slight
efficacy of punishment as a counteraction of crime.
We have only to distinguish between punishment as a natural
sanction and punishment as a social sanction in order to see how
the really great power of natural punishment almost entirely
disappears in social punishment, which in all our systems is but a
sorry caricature.
The mute but inexorable reaction of nature against every action
which infringes her laws, and the grievous consequences which
inevitably follow for the man who has infringed them, constitute a
repression of the most efficacious kind, wherein every man,
especially in the earlier years of his life, receives daily and
never to be forgotten lessons. This is the discipline of natural
consequence, which is a genuine educational method, long since
pointed out by Rousseau, and developed by Spencer and Bain.
But in this natural and spontaneous form, the punishment derives
its whole force from the inevitable character of the consequences.
And it is one of the few observations of practical psychology
which have been made and repeated by the classical students
of crime, that in punishment, and especially the punishment of
death, the certainty is more effectual than the severity. And I
will add that even a small uncertainty takes away from a pain
which we fear, much of its repelling force, whereas even a great
uncertainty does not destroy the attraction of a pleasure which we
are hoping for.
Here, then, we have a primary and potent cause of the slight
efficacy of legal punishments, in the picturing of the many
chances of escape. First there is the chance of not being
detected, which is the most powerful spring of all contemplated
crime: then the chance, in case of detection, that the evidence
will not be strong enough, that the judges will be merciful, or
will be deceived, that judgment may be averted amidst the
intricacies of the trial, that clemency may either reverse or
mitigate the sentence. These are so many psychological causes
which, conflicting with the natural fear of unpleasant
consequences, weaken the repellent force of legal punishment,
whilst they are unknown to natural punishment.
There is also another psychological condition which, undermining
even the force of natural punishment, almost entirely destroys the
power of social punishment; and that is improvidence. We see, in
fact, that even the most certain natural consequences are defied,
and lose most of their power to guard an improvident man from
anti-natural and dangerous actions. Now in regard to legal
punishment, even apart from passionate impulse, it is known that
criminals, occasional and other, are specially improvident, in
common with savages and children. This weakness is
conspicuous enough in the lower and less instructed classes, but
amongst criminals it is a genuine characteristic of psychological
infirmity.
Now, whilst a very slight force is sufficient to produce very
great and constant effects, when it acts in harmony with natural
tendency and environment, every process, on the other hand, which
is opposed to the natural tendencies of man, or which does not
follow them closely, encounters a resistance which triumphs in the
last resort.
Everyday life gives us many examples. The university student,
when he gambles, risks on a single card the last remnant of his
allowance, and prepares for himself a thousand privations. Miners
and workmen at dangerous trades refuse to take warning by the
sight of comrades whom they have seen dying or repeatedly attacked
by disease. M. Despine related that, during the cholera of 1866,
at Bilbao, there were some who set up an imitation of the disease
in order to obtain charitable relief, though in several cases
death ensued. M. Fayet, in an essay on the statistics of accused
persons in France, extending over twenty years, remarked that
specific and proportionately greater criminality was displayed by
notaries and bailiffs, who knew better than any one else the
punishments fixed by law. And in the statistics of capital
punishment at Ferrara, during nine centuries, I discovered the
significant fact that there is a succession of notaries executed
for forgery, frequently at very short intervals, in the same town.
This attests the truth of the observation made by Montesquieu and
Beccaria, as against the deterrent power of the death
penalty, for men grow accustomed to the sight; and this again is
confirmed by the fact mentioned by Mr. Roberts, a gaol chaplain,
and M. Berenger, a magistrate, that several condemned men had
previously been present at executions, and by another fact
mentioned by Despine and Angelucci, that in the same town, and
often in the same place, in which executions had been carried out,
murders are often committed on the same day.
A man does not change his identity; and no penal code, whether
mild or severe, can change his natural and invincible tendencies,
such as inclination to pleasure and persistent hope of impunity.
Let us also observe that, as Mill said, the permanent efficacy of
any measure in the spheres of politics, economy, and
administration, is always inversely proportional to its force and
suddenness. Now punishment does not stand the test even of this
sociological law, for in its essence it is only the primitive
reaction of force against force. It is true that, as Beccaria
said, the classical school has always aimed at rendering social
reaction against crime less violent; but that is not enough.
Henceforward, if we are to adapt ourselves to psychological and
sociological laws, the development of our defensive administration
must tend to render this social reaction less direct. If the
struggle for existence is always to remain the supreme law of
living creatures, yet it is not necessary that it should always be
developed in the violent forms of primitive humanity. On the
contrary, one of the results of social progress is to make the
struggle for existence less violent and less direct.
In the same way, the continuous struggle between society and
criminals, instead of being a physical and social force, directly
opposed to a physical individual force, should rather become an
indirect system of psychical forces. Penal law in society has the
same qualities as education in the family and pedagogy in schools.
All the three were once dominated by the idea of taming human
passions by force; the rod was supreme. In course of time it was
perceived that this produced unexpected results, such as violence
and hypocrisy, and then men thought fit to modify their
punishments. But in our own days schoolmasters see the advantage
of relying solely on the free play of tendencies and bio-
psychological laws. Similarly the defensive function of society,
as Romagnosi said, in place of being a physical and repressive
system, ought to be a moral and preventive system, based on the
natural laws of biology, psychology, and sociology.
Force is always a bad remedy for force. In the Middle Ages, when
punishments were brutal, crimes were equally savage; and society,
in demoralising rivalry with the atrocity of criminals, laboured
in a vicious circle. Now, in the lower social grades, the brutal
man, who often resorts to violence, is in his turn frequently the
victim of violence; so that, amongst criminals, a scar is somewhat
of a professional distinction.
To sum up, our doctrine as to the efficacy of punishments does not
consist, as some critics too sparing of their arguments have
maintained, in an absolute negation, but rather and especially in
objecting to the traditional prejudice that punishments are
the best and most effectual remedies of crime.
What we say is this. Punishment by itself, as a means of
repression, possesses a negative rather than a positive value; not
only because it has not the same influence on all anthropological
types of criminals, but also because its use is rather to preclude
the serious mischief which would result from impunity than to
convert, as some imagine that it can, an anti-social into a social
being. But impunity would lead to a demoralisation of the popular
conscience in regard to crimes and offences, to an increase of the
profound lack of foresight in criminals, and to the removal of the
present impediment to fresh crimes during the term of
incarceration.
It is the same with education, the modifying power of which is
commonly exaggerated. Education, though it has an enduring
influence on children, and is therefore more effectual than
punishment, is far more serviceable in eliminating anti-social
tendencies, whereof we all possess the germs, than in any supposed
creation of social tendencies and forces which were not present
from birth.
Thus, whilst the consequences of impunity and lack of education
are serious and mischievous, still this does not prove conversely
that punishment and education have in reality so positive an
influence as is commonly attributed to them.
It is precisely on the ground of this negative, yet real efficacy
of punishments, especially whilst they are being carried out,
that, whilst we appreciate the mitigation of punitive discipline
which has been achieved by the classical school, we
believe, on the other hand, that their abbreviation of the term of
punishments is altogether mistaken and dangerous. We admit that
punishment ought not to be an arbitrary and inhuman torture, and
for this reason we have no sympathy with the system of solitary
confinement, now so much in fashion with the classical jurists and
prison authorities, precisely because it is inhuman, as well as
unwise and needlessly expensive.
It is a psychological absurdity and a social danger, which
nevertheless underlies the new Italian penal code, that punishment
ought to consist more and more in a short isolation of the
prisoner. For, setting aside the well-known results of short
punishments, such as corruption and recidivism, it is evident that
in this way punishment is deprived of its main element of negative
efficiency against crime, as well as of its effect in preventing
crime during the incarceration of the criminal.
II.
Since punishments, instead of being the simple panacea of crime
which popular opinion, encouraged by the opinions of classical
writers on crime and of legislators, imagine them, are very
limited in their deterrent influence, it is natural that the
criminal sociologist should look for other means of social defence
in the actual study of crimes and of their natural origin.
We are taught by the everyday experience of the family, the
school, associations of men and women, and the history of social
life, that in order to lessen the danger of outbreaks of passion
it is more useful to take them in their origin, and in flank, than
to meet them when they have gathered force.
Bentham relates that in England the delays caused by hard-drinking
couriers, who used to be heavily fined without any good result,
were obviated by combining passenger traffic with the postal
service. Employers of labour secure industry and the most
productive work far more easily by offering a share of the
realised profits than by a system of fines. In the German
universities, academic jealousies and intolerance have been in
great measure overcome by paying the professors in proportion to
the number of their pupils, so that the Faculties find it to their
interest to engage and encourage the best professors, in order to
attract as many students as possible. Thus the activity and zeal
of professors, magistrates, and officials would be stimulated if
their remuneration depended not only on the automatic test of
seniority, but also on the progress displayed by publications,
sentences not reversed, settlements not cancelled, and the like.
It is better to regulate the disturbing restlessness of children
by timely diversions rather than by attempting to repress them in
a manner injurious to their physical and moral health. So in
lunatic asylums and prisons, work is a better means of order and
discipline than chains and castigation. In brief, we obtain more
from men by consulting their self-respect and interests than by
threats and restraint
If the counteraction of punishment must inevitably be opposed to
criminal activity, still it is more conducive to social order to
prevent or diminish this activity by means of an indirect and more
effective force.
In the economic sphere, it has been observed that when a staple
product fails, recourse is had to less esteemed substitutes, in
order to supply the natural wants of mankind. So in the criminal
sphere, as we are convinced by experience that punishments are
almost devoid of deterrent effect, we must have recourse to the
best available substitutes for the purpose of social defence.
These methods of indirect defence I have called penal
substitutes. But whereas the food substitutes are as a rule only
secondary products, brought into temporary use, penal substitutes
should become the main instruments of the function of social
defence, for which punishments will come to be secondary means,
albeit permanent. For in this connection we must not forget the
law of criminal saturation, which in every social environment
makes a minimum of crime inevitable, on account of the natural
factors inseparable from individual and social imperfection.
Punishments in one form or another will always be, for this
minimum, the ultimate though not very profitable remedy against
outbreaks of criminal activity.
These penal substitutes, when they have once been established in
the conscience and methods of legislators, through the teaching of
criminal sociology, will be the recognised form of treatment for
the social factors of crime. And they will also be more
possible and practical than that universal social metamorphosis,
direct and uncompromising, insisted on by generous but impatient
reformers, who scorn these substitutes as palliatives because
humanitarian enthusiasm causes them to forget that social
organisms, like animal organisms, can be only partially and
gradually transformed.
The idea of these penal substitutes amounts, in short, to this.
The legislator, observing the origins, conditions, and effects of
individual and collective activity, comes to recognise their
psychological and sociological laws, whereby he will be able to
obtain a mastery over many of the factors of crime, and especially
over the social factors, and thus secure an indirect but more
certain influence over the development of crime. That is to say,
in all legislative, political, economic, administrative, and penal
arrangements, from the greatest institutions to the smallest
details, the social organism will be so adjusted that human
activity, instead of being continually and unprofitably menaced
with repression, will be insensibly directed into non-criminal
channels, leaving free scope for energy and the satisfaction of
individual needs, under conditions least exposed to violent
disturbance or occasions of law-breaking.
It is just this fundamental idea of penal substitutes which shows
how necessary it is that the sociologist and legislator should
have such a preparation in biology and psychology as Mr. Spencer
justly insisted on in his ``Introduction to Social Science. '' And
it is the fundamental idea rather than the substitutes themselves
that we should bear in mind if we would realise their
theoretical and practical value as part of a system of criminal
sociology.
As for the efficacy of any particular penal substitute, I readily
admit, in some sense at least, the partial criticisms which have
been passed upon them. Apart from such as simply say that they do
not believe in the use of alternatives to punishment, and such as
confine themselves to the futile question whether this theory
belongs to criminal science or to police administration, a
majority of criminal sociologists have now definitely accepted the
doctrine of penal substitutes. This theory is accepted, not as an
absolute panacea of crime, but, as I have always stated it, in the
sense of a combination of measures analogous to penal repression;
in place of trusting solely to repression for the defence of
society against crime.
Let us take note of a few examples.
I. In the Economic Sphere. --Free Trade (apart from the
temporary necessity of protecting a particular manufacturing or
agricultural industry), by preventing famines and exceptional high
prices of and taxes on food, eliminates many crimes and offences,
especially against property. --Unrestricted emigration is a safety-
valve, especially for a country in which this phenomenon, assuming
large proportions, carries off many persons who are easily driven
to crime by wretchedness, or by their unbalanced energy. Thus the
number of recidivists has diminished in Ireland, not by virtue of
her prison systems, but by emigration, which reached forty-six per
cent. of released prisoners. In Italy, also, there has been a
decrease of crime since 1880, owing to other causes, such
as mild winters and plentiful harvests, but also through a vast
increase of emigration. --Smuggling, which for centuries resisted
extremely harsh punishments, such as amputation of the hand, and
even death, and which still resists prison and the fire-arms of
the revenue officers, is suppressed by the lowering of the import
tariff, as M. Villerme has shown in the case of France. So
that everyday facts justify the system of Adam Smith, who said
that the law which punished smuggling, after creating the
temptation, and which increased the punishment when it increased
the temptation, was opposed to all justice; whilst Bentham, on the
contrary, departing from his maxim that the punishment ought to be
dreaded more strongly than the offence attracted, called for the
stern repression of smuggling. --The system of taxation which
touches wealth and visible resources instead of the prime
necessaries of life, and which is proportional to the taxpayer's
income, diminishes the systematic frauds which no punishment
availed to stop, and it will also abolish the arbitrary and
exaggerated fiscal traditions which have been the cause of
rebellions and outrages. In fact, Fregier describes the
criminal industries which are called into existence by octrois,
and which will disappear with the abolition of these absurd and
unjust duties. And whilst M. Allard demonstrated that a decrease
of taxes on necessaries would have beneficial effects, not only in
economic affairs but also in respect of commercial frauds, the
Report on French Criminal Statistics for 1872 calmly continued to
call for more severe repression of such frauds. To this M.
Mercier replied that if the cause--that is to say,
disproportionate taxes--were not removed, it would be impossible
to prevent the effects. --Immunity from taxation for the minimum
necessary to existence, by preventing distraint, and the
consequent diminution of small properties, which means the
increase of the very poor, will obviate many crimes, as we see
from the agrarian conditions in Ireland. Thus there is a demand
in Italy for the inalienability of small properties, as in America
under the Homestead Exemption Law. --Public works, during famine
and hard winters, check the increase of crimes against property,
the person, and public order. For instance, during the scarcity
of 1853-5 in France, there was no such enormous increase of theft
as during the famine of 1847, simply because the Government set up
vast relief works in the winter months.
The taxes and other indirect restrictions on the production and
sale of alcohol are far more efficacious than our more or less
enormous gaols. The question of pronounced and chronic
drunkenness has increased in gravity, owing to its effect upon the
physical and moral health of the people.
In France the average consumption of wine, estimated at 62 litres
(13. 64 gallons) per head in 1829, exceeded 100 litres in 1869; and
in Paris the average of 120 litres in 1819-30, reached 227 litres
in 1881. The average yearly consumption of alcohol in France rose
from . 93 in 1829 to 3. 24 in 1872, and 3.
1856-60 . . . . . . 1 . . . . . . 49 . . . . . . . . . 61
1861-5 . . . . . . . 6 . . . . . . 48 . . . . . . . . . 64
1866-9 . . . . . . . 5 . . . . . . 47 . . . . . . . . . 68
1872-6 . . . . . . . 7 . . . . . . 49 . . . . . . . . . 66
1877-81 . . . . . . . 7 . . . . . . 50 . . . . . . . . . 66
1882-6 . . . . . . 1 . . . . . . 49 . . . . . . . . . 65
These figures, if they do not show (as might have been foreseen)
so large an increase of severity as in the percentages of
acquittals, yet prove that repression has not diminished even in
the serious character of the punishments. On the other hand, we
can see that, in the assize cases, excluding the first period,
before the revision of 1832, whilst capital punishment shows a
certain diminution (especially due to the laws of 1832, 1848, &c. ,
which reduced the number of cases involving the death penalty),
though continuing at a certain level since 1861, sentences of
penal servitude and solitary confinement show a continued
increase from the second period, and especially since 1851.
So also at the Tribunals, except for a few oscillations, as in the
ninth period, there is a sustained increase of repression.
And the fact that this increased ratio of the more serious
punishments actually indicates a greater severity on the part of
the judges can only be contested on the ground of a simultaneous
increase of the more serious crimes and offences. On the other
hand, we note in France a general decrease of crimes against the
person (except for assaults on children), and still more of crimes
against property.
There is also a striking confirmation in the corresponding
acquittals and condemnations of a more serious character. We see,
in fact, that the more serious condemnations increase precisely
when the acquittals decrease (as in the 4th, 6th, 7th, and 10th
periods at the Assizes, and the 2nd, 5th, and 8th periods at the
Tribunals); whilst in the years of more frequent acquittals there
is also a diminution of more serious punishments, as in the 5th
and 8th periods at the Assizes. That is to say, the two sets of
statistics actually indicate a greater or less severity on the
part of juries and judges.
This firmer repression is demonstrated in spite of the continued
increase of attenuating circumstances, which rose at the Assizes
from 50 per cent. in 1833 to 73 per cent. in 1806, and at the
Tribunals from 54 per cent. in 1851 to 65 per cent. in 1886.
Nevertheless it is a fact that the number of cases tried by
default at the Assizes has continuously decreased from a
yearly average of 647 in 1826-30 to one of 266 in 1882-6.
For Italy we have the following figures:
{column missing head? }
PRETORS. TRIBUNALS. ASSIZES.
------------------------------------------
Condemned to Imprisonment. Condemned Penal Servitude
Slighter imprisonment. to death. for life. temporary punishts
1874 21 79 1. 2 5. 6 65 28
5 22 80 1. 3 6. 5 63 29
6 23 81 1. 3 6. 1 66 27
7 24 82 1. 5 7. 2 66 25
8 25 85 1 7. 6 67 25
9 25 -- 1. 2 6. 3 67 25
1880 26 -- 1. 3 5. 5 68 25
1 24 81 1. 7 6. 1 65 27
2 23 81 1. 5 6 66 27
3 23 81 1. 7 5. 4 64 29
4 23 81 1. 3 5. 3 64 30
5 23 81 1. 6 5. 4 63 30
6 21 81 1. 6 5. 7 62 30
7 21 83 1. 1 5. 8 63 30
8 21 82 1. 2 4. 7 65 29
Thus, once more, there has been no relaxation of repression,
except in late years for those condemned by the Pretors to penal
servitude for life.
The conclusion, therefore, is still the same, namely that judicial
repression, in France and Italy, has grown stronger and stronger,
whilst criminality has increased more and more.
In this fact, again, which confutes the common opinion that the
sovereign remedy of crime is the greater rigour of punishment, we
may fairly find a positive proof that the penal, legislative, and
administrative systems hitherto adopted have missed their aim,
which can be nothing else than the defence of society against
criminals.
Henceforth we must seek, through the study of facts, a
better direction for penal legislation as a function of society,
so that, by the observation of psychological and sociological
laws, it may tend, not to a violent and always tardy reaction
against crime already evolved, but to the elimination or diversion
of its natural factors.
This fundamental conclusion of criminal statistics is so important
that we must confirm it by adding to the statistical data the
general laws of biology and sociology. This is the more necessary
because my position as first stated has met with some criticism.
In the first place, it is easily seen, when we compare the total
result of crime with the varied character of its anthropological,
physical, and social factors, that punishment can exert but a
slight influence upon it. Punishment, in fact, by its special
effect as a legal deterrent, acting as a psychological motive,
will clearly be unable to neutralise the constant and hereditary
action of climate, customs, increase of population, agricultural
production, economic and political crises, which statistics
invariably exhibit as the most potent factors of the growth or
diminution of criminality.
It is a natural law that forces cannot conflict or neutralise each
other unless they are of the same kind. The fall of a body cannot
be retarded, changed in direction or accelerated, save by a force
homogeneous with that of gravity. So punishment, as a
psychological motive, can only oppose the psychological factors of
crime, and indeed only the occasional and moderately energetic
factors; for it is evident that it cannot, as a preliminary
to its application, eliminate the organic hereditary factors which
are revealed to us by criminal anthropology.
Punishment, which has professed to be such a simple and powerful
remedy against all the factors of crime, is therefore a panacea
whose potency is far beneath its reputation.
We must bear in mind a fact which is familiar enough, though it
has been too often forgotten by legislators and criminalists.
Society is not a homogeneous aggregate, but on the contrary an
organism, like every animal organism, composed of tissues of
varying structure and sensibility. Every society, in fact, with
its progressive and increasingly distinctive needs and
occupations, is a product of the union of social classes which
differ greatly in their organic and psychical characteristics.
The physical constitution, the habits, sentiments, ideas, and
tendencies of one social stratum are far from being the same as
those of other strata. Here again we have, as Spencer would say,
the law of evolution through a departure from the homogeneous to
the heterogeneous, from the simple to the complex, or, in the
words of Ardigo, a natural formation by successive distinctions.
Amongst savage tribes this distinction of the social strata does
not exist, or it is far less marked than in barbarian societies,
and still less than in civilised societies.
Every schoolmaster with a bent for psychological observation
separates his pupils into three classes. There is the class of
industrious pupils of good disposition, who work of their own
accord, without calling for strict discipline; that of the
ignorant and idle (degenerate and of weak nervous force) from whom
neither mildness nor severity can obtain anything worth having;
and that of the pupils who are neither wholly industrious nor
wholly idle, and for whom a discipline based on psychological laws
may be genuinely useful.
This is the case with large bodies of soldiers or of prisoners,
for all associations of men, and for society as a whole. These
partial organisms, due to the constant relationships of a life
more or less in common, are in this respect reproductions of
society as a whole, just as a fragment of crystal reproduces the
characteristics of the unbroken crystal. [13]
[13] There is, however, some difference between the manifestation
of the activity of a group of men and that of the aggregate
society. Between psychology which studies the individual, and
sociology which studies the society, I think there is room for a
collective psychology, to study more or less defined groups.
The phenomena of these groups are analogous, but not identical
with those of the sociological body properly so called, according
as the union is more or less definite. Collective psychology has
its field of observation in all unions, however occasional, such
as the public street, the markets, workshops, theatres meetings,
assemblies, colleges, schools, barracks, prisons, and so forth.
Many practical applications of the data of collective psychology
might be given. An example will be found in a future chapter,
when I come to consider the psychology of the jury.
In the same way, from the standpoint of criminal sociology, we may
divide the social strata into three analogous categories--the
highest, which commits no crimes, organically upright, restrained
only by the authority of the moral sense, of religious sentiments
and public opinion, together with the hereditary transmission of
moral habits. This class, for which no penal code would be
necessary, is unfortunately very small; and it is far smaller if,
in addition to legal and apparent criminality, we also take
into account that social and latent criminality through which many
men, who are upright so far as the penal code is concerned, are
not upright by the standard of morality.
Another class, the lowest, is made up of individuals opposed to
all sense of uprightness, who, being without education,
perpetually dragged back by their material and moral destitution
into the primitive forms of the brute struggle for existence,
inherit from their parents and transmit to their children an
abnormal organisation, adding degeneration and disease, an
atavistic return to savage humanity. This is the nursery of the
born criminals, for whom punishments, so far as they are legal
deterrents, are useless, because they encounter no moral sense
which could distinguish punishment by law from the risk which also
attends upon every honest industry.
Lastly we have the other class of individuals who are not born to
crime, but are not firmly upright, alternating between vice and
virtue, with imperfect moral sense, education and training, for
whom punishment may be genuinely useful as a psychological motive.
It is just this class which yields the large contingent of
occasional criminals, for whom punishments are efficacious if they
are directed in their execution by the axioms of scientific
psychology, and especially if they are aided by the social
prevention which reduces the number of opportunities of committing
crimes and offences.
Once again I must express my agreement with M. Garofalo, who, in
dealing with this subject, insists on the necessity of
distinguishing between the different classes of criminals before
deciding as to the efficacy of punishments.
Yet this conclusion as to the very limited efficiency of
punishments, which is forced upon us by facts, and which, as
Bentham said, is confirmed by the application of each punitive
act, precisely because its previous application did not succeed in
preventing crime, is directly opposed to general public opinion,
and even to the opinion of jurists and legislators.
On the inception or the growth of a criminal manifestation,
legislators, jurists, and public think only of the remedies, which
are as easy as they are illusory, of the penal code, or of some
new Act of repression. Even if this were useful, which is very
problematical, it has the inevitable disadvantage of making men
ignore other remedies, far more profitable, albeit more difficult,
of a preventive and social kind. And this tendency is so common
that many of those who have dwelt upon or accepted the positive
movement of the new school, not long after they had admitted that
I was in the right, declared impulsively that ``the constant
commission of crime arises from the lack of timely repression,''
and that ``one of the chief causes of the growth of crime in Italy
is the mildness of our punishments. '' Or else they forgot to ask
themselves the elementary question of criminal sociology, whether
and how far punishments have a genuinely defensive force. This is
just what happens with pedagogues who enter upon long discussions
on the various methods and means of education, without
asking themselves beforehand whether and how far education has the
actual power of modifying the temperament and character which
heredity stamps upon every individual.
These conclusions take us far beyond the limit of penal severity,
and at the same time they suffice to combat the objection commonly
raised against those who think, like ourselves, that repressive
justice ought to concern itself not with the punishment of past
crime, but with the prevention of future crime. For whilst the
advocates of severity, and those whom I will call the
``laxativists,'' virtually think (apart from a few platonic
statements) only of punishments as remedies of offences, we on the
other hand believe that punishments are merely secondary
instruments of social self-defence, and remedies ought to be
adapted to the actual factors of the offence. And since the
social factors are most capable of modification, so we say with
Prins that ``for social evils we require social cures. ''
M. Tarde, then, was not quite accurate in his remark that my
conviction as to the very slight efficacy of punishments is a mere
consequence of my ideas on the anthropological and physical
character of crime, and that, ``on the contrary, the
preponderating importance which he has assigned to the social
causes logically debars him from accepting this conclusion. '' As
a matter of fact, punishment regarded as a psychological motive so
far as it is a legal deterrent, and as a physical motive so far as
it implies the confinement of the person condemned, would more
naturally belong, in abstract logic, to the biological and
physical theory of crime. Whereas it is precisely because I
recognise the influence of social environment, in addition, that
experimental logic convinces me that punishment is not an
efficacious remedy of crime, unless forces are applied beforehand
to neutralise, or at any rate to counteract, the social factors of
crime.
And if this is not a new conclusion, as one of our critics
observes by way of reproach--as though it were not one of the
characteristics of truth to repeat itself persistently, however
much it may be forgotten or even opposed--we must nevertheless
remark that it is now repeated with a mass of new observations and
definite applications, which give it a force unknown to mere
logical deductions.
The classical school has concerned itself simply with mitigation
of punishment as compared with mediaeval excess; and for this
reason, because every age has its own mission, it could not also
concern itself with the prevention of crimes, which is far more
useful and efficacious. A few isolated thinkers, it is true,
wrote a few bold and far-reaching pages on preventive methods in
opposition to the numerous volumes on punishment; but their words
had no effect upon criminalists and legislators, because science
had not yet undertaken the positive and methodical observation of
the natural factors of crime.
I will confine myself to a few examples, in order to show that
amongst practical men, as amongst public officials and
legislators, the illusion that punishments are the true panacea of
crime is always predominant.
Practical men declare that ``the prohibitive penal law ought to be
regarded as the first and most important of preventive laws. ''
The prefets in their circulars, being concerned about the
increase of crime, put forward the most vigilant and severe
repression as a sovereign remedy. A counsellor of the French Cour
de Cassation writes that ``in a worthy system of social police
there is no better guarantee for order and safety than
intimidation. '' The Keeper of the Seals, in his report on French
penal statistics for 1876, speaking of the continued increase of
indecent assaults, comes to the conclusion that ``in any case,
only firm and energetic repression can avail against a lamentable
increase of crimes against morality. '' And more recently another
Keeper of the Seals ended his report on the statistics of 1826 to
1880 by observing that ``the growth of crime can only be opposed
by an incessantly vigorous repression. '' M. Tarde agreed with
this conclusion, saying that ``if crimes are only, as has been
said, railway accidents of a society travelling at full speed, it
must not be forgotten that, the faster the train, the stronger
must be the brake . . . and it is certain that such a state of
affairs demands an increase or a new departure of repression and
punishment. ''
It may be admitted that our conclusion is not a novelty; but, as
Stuart Mill said, there are two ways of effecting useful
innovations, to discover what was not known before, or else to
repeat with new demonstrations the truths which had been
forgotten.
And this illusion as to the influence of punishments is so
widespread that it is well to inquire into its historic and
psychological arguments; for, as Spencer says, in order to decide
as to the value of an idea, it is useful to examine its genealogy.
We may pass by the foundation of primitive vengeance, which from
the age of private combats passed into the spirit and form of the
earliest penal laws, and still subsists as a more or less
unconscious and enfeebled residuum in modern society. We may also
pass by the hereditary effect of the traditions of mediaeval
severity, which excite an instinctive sympathy for stern
punishment in connection with every crime.
But one of the main reasons of this tendency is an error of
psychological perspective, whereby men have forgotten the profound
differences of the ideas, habits, and sentiments of the various
social strata, concerning which I have spoken above. Through this
forgetfulness the honest and instructed classes confound their own
idea of the penal law, and the impression it makes upon them, with
the idea and the impression of the social classes from which the
majority of criminals are recruited. This has been remarked upon
by Beccaria, Carmignani, and Holtzendorff amongst the classical
criminalists, and by Lombroso and others of the new school who
have studied the slang and literature of criminals, which are
their psychological mirror. Again, it is forgotten that for the
higher classes, apart from their physical and moral repugnance
against crime, which is the most powerful repelling force, there
is the fear of public opinion, almost unknown amongst the classes
which have stopped short at a lower stage of human
evolution.
For the higher classes one example may suffice. It is the fact
observed upon by Mr. Spencer, that gambling debts and Stock
Exchange bargains are scrupulously discharged, though for them
there is neither penal obligation nor evidence in writing. And it
may be added that imprisonment for debt never promoted the
fulfilment of contracts, nor has its abolition discouraged it.
As for the lower classes, one visit to a prison suffices. There,
if you ask a prisoner why the punishment did not deter him from
the crime, you generally get no answer, because he has never
thought about it. Or else he replies, as I have often found, that
``if you were afraid of hurting yourself when you went to work,
you would give up working. '' These indeed are what one would
expect to be the feelings prevailing amongst the lower social
strata, to whom honest sentiments and ideas, which for us are
traditional and organic, come very late--just as Mr. Stanley
observed that the people in Central Africa are only now beginning
to employ stone guns, which in past ages were used in Europe.
Another fallacy which helps to strengthen confidence in
punishments is that the effect of exceptional and summary laws is
treated on the same basis as that of the ordinary codes, slow and
uncertain in their procedure, which saps all their force by the
chance of immunity, and the interval between the unlawful act and
its legal consequence.
Lombroso and Tarde, indeed, have confronted me with
historic examples of vigorous and even savage repressions, whereby
it was possible to stamp out some epidemic crime. But these
examples are not conclusive, for I have shown that, as soon as
these exceptional repressions were at an end, as, for instance,
after the death of Pope Sixtus V. , brigandage and other crimes
were persistently renewed. But my main rejoinder is this, that
these exceptional repressions depend upon the jus belli; and
therefore cannot enter into the ordinary and constant methods of
penal administration. This may not have the effect of an
extraordinary repression, secured by a somewhat unscrupulous
promptitude, which strikes innocent and guilty alike; and thus it
is impossible to treat as equal, or even to compare, the influence
of methods which are essentially different.
Another false comparison is drawn between the effective force of
various punishments, and their potentiality is confounded, whereas
it is necessary to distinguish the punishment of the written code
from that of the judge, and still more from that carried into
execution. In fact it is only natural that punishment should more
or less terrify the criminal who has been judged and is about to
be condemned; but this in no way proves its efficacy, which should
have been displayed by the menace of the law in guarding the
prisoner against the crime. Even with the death penalty, there
are many instances of condemned persons who, through congenital
insensibility, submit to it cynically. Moreover, for such as have
been overwhelmed with terror when the moment of execution arrived,
the utmost that this fact can prove is that they are so
constituted as to give themselves up completely to the impression
of the moment, without the energy to resist it. In other words,
so long as the punishment is distant and uncertain, they were not
terrified, but having always yielded to the impression of the
moment, they yielded to the criminal impulse.
For other punishments, also, it is known that punitive methods,
even when not contrary to the law, as they sometimes are in Italy,
are always less stern than simple folk imagine when they read the
codes and the sentences. And criminals naturally judge of
punishments by their own experience, that is to say, in accordance
with their practical application, and not with the more or less
candid threats of the lawmaker.
If we add to vindictive feeling, historic traditions, oblivion of
bio-psychic differences of the social strata, the confounding of
exceptional laws and ordinary punishments, and of the varying
effective force of punishment, the attitude of the public mind and
the natural tendency of criminalists to think only of their two
syllogistic symbols of crime and punishment--if we further add the
easy-going idea of the multitude, that the inscribing of a law in
the statute-book is a sufficient remedy for social diseases, we
can readily understand how this exaggerated and illusory
confidence in punishment is so persistent, and crops up in every
theoretical or practical discussion, in spite of the strong
refutation which is daily afforded by facts and psychological
observation.
All human actions, like the actions of animals, are developed
between the two opposite poles of pleasure and pain, by the
attraction of the former and the repulsion of the latter. And
punishment, which is one of the social forms of pain, is always a
direct motive in human conduct, as it is also an indirect guide,
by virtue of its being a sanction of justice, unconsciously
strengthening respect for the law. But still this psychological
truth, whilst it demonstrates the natural character of punishment,
and the consequent absurdity of abolishing it as absolutely void
of efficacy, does not destroy our conclusion as to the slight
efficacy of punishment as a counteraction of crime.
We have only to distinguish between punishment as a natural
sanction and punishment as a social sanction in order to see how
the really great power of natural punishment almost entirely
disappears in social punishment, which in all our systems is but a
sorry caricature.
The mute but inexorable reaction of nature against every action
which infringes her laws, and the grievous consequences which
inevitably follow for the man who has infringed them, constitute a
repression of the most efficacious kind, wherein every man,
especially in the earlier years of his life, receives daily and
never to be forgotten lessons. This is the discipline of natural
consequence, which is a genuine educational method, long since
pointed out by Rousseau, and developed by Spencer and Bain.
But in this natural and spontaneous form, the punishment derives
its whole force from the inevitable character of the consequences.
And it is one of the few observations of practical psychology
which have been made and repeated by the classical students
of crime, that in punishment, and especially the punishment of
death, the certainty is more effectual than the severity. And I
will add that even a small uncertainty takes away from a pain
which we fear, much of its repelling force, whereas even a great
uncertainty does not destroy the attraction of a pleasure which we
are hoping for.
Here, then, we have a primary and potent cause of the slight
efficacy of legal punishments, in the picturing of the many
chances of escape. First there is the chance of not being
detected, which is the most powerful spring of all contemplated
crime: then the chance, in case of detection, that the evidence
will not be strong enough, that the judges will be merciful, or
will be deceived, that judgment may be averted amidst the
intricacies of the trial, that clemency may either reverse or
mitigate the sentence. These are so many psychological causes
which, conflicting with the natural fear of unpleasant
consequences, weaken the repellent force of legal punishment,
whilst they are unknown to natural punishment.
There is also another psychological condition which, undermining
even the force of natural punishment, almost entirely destroys the
power of social punishment; and that is improvidence. We see, in
fact, that even the most certain natural consequences are defied,
and lose most of their power to guard an improvident man from
anti-natural and dangerous actions. Now in regard to legal
punishment, even apart from passionate impulse, it is known that
criminals, occasional and other, are specially improvident, in
common with savages and children. This weakness is
conspicuous enough in the lower and less instructed classes, but
amongst criminals it is a genuine characteristic of psychological
infirmity.
Now, whilst a very slight force is sufficient to produce very
great and constant effects, when it acts in harmony with natural
tendency and environment, every process, on the other hand, which
is opposed to the natural tendencies of man, or which does not
follow them closely, encounters a resistance which triumphs in the
last resort.
Everyday life gives us many examples. The university student,
when he gambles, risks on a single card the last remnant of his
allowance, and prepares for himself a thousand privations. Miners
and workmen at dangerous trades refuse to take warning by the
sight of comrades whom they have seen dying or repeatedly attacked
by disease. M. Despine related that, during the cholera of 1866,
at Bilbao, there were some who set up an imitation of the disease
in order to obtain charitable relief, though in several cases
death ensued. M. Fayet, in an essay on the statistics of accused
persons in France, extending over twenty years, remarked that
specific and proportionately greater criminality was displayed by
notaries and bailiffs, who knew better than any one else the
punishments fixed by law. And in the statistics of capital
punishment at Ferrara, during nine centuries, I discovered the
significant fact that there is a succession of notaries executed
for forgery, frequently at very short intervals, in the same town.
This attests the truth of the observation made by Montesquieu and
Beccaria, as against the deterrent power of the death
penalty, for men grow accustomed to the sight; and this again is
confirmed by the fact mentioned by Mr. Roberts, a gaol chaplain,
and M. Berenger, a magistrate, that several condemned men had
previously been present at executions, and by another fact
mentioned by Despine and Angelucci, that in the same town, and
often in the same place, in which executions had been carried out,
murders are often committed on the same day.
A man does not change his identity; and no penal code, whether
mild or severe, can change his natural and invincible tendencies,
such as inclination to pleasure and persistent hope of impunity.
Let us also observe that, as Mill said, the permanent efficacy of
any measure in the spheres of politics, economy, and
administration, is always inversely proportional to its force and
suddenness. Now punishment does not stand the test even of this
sociological law, for in its essence it is only the primitive
reaction of force against force. It is true that, as Beccaria
said, the classical school has always aimed at rendering social
reaction against crime less violent; but that is not enough.
Henceforward, if we are to adapt ourselves to psychological and
sociological laws, the development of our defensive administration
must tend to render this social reaction less direct. If the
struggle for existence is always to remain the supreme law of
living creatures, yet it is not necessary that it should always be
developed in the violent forms of primitive humanity. On the
contrary, one of the results of social progress is to make the
struggle for existence less violent and less direct.
In the same way, the continuous struggle between society and
criminals, instead of being a physical and social force, directly
opposed to a physical individual force, should rather become an
indirect system of psychical forces. Penal law in society has the
same qualities as education in the family and pedagogy in schools.
All the three were once dominated by the idea of taming human
passions by force; the rod was supreme. In course of time it was
perceived that this produced unexpected results, such as violence
and hypocrisy, and then men thought fit to modify their
punishments. But in our own days schoolmasters see the advantage
of relying solely on the free play of tendencies and bio-
psychological laws. Similarly the defensive function of society,
as Romagnosi said, in place of being a physical and repressive
system, ought to be a moral and preventive system, based on the
natural laws of biology, psychology, and sociology.
Force is always a bad remedy for force. In the Middle Ages, when
punishments were brutal, crimes were equally savage; and society,
in demoralising rivalry with the atrocity of criminals, laboured
in a vicious circle. Now, in the lower social grades, the brutal
man, who often resorts to violence, is in his turn frequently the
victim of violence; so that, amongst criminals, a scar is somewhat
of a professional distinction.
To sum up, our doctrine as to the efficacy of punishments does not
consist, as some critics too sparing of their arguments have
maintained, in an absolute negation, but rather and especially in
objecting to the traditional prejudice that punishments are
the best and most effectual remedies of crime.
What we say is this. Punishment by itself, as a means of
repression, possesses a negative rather than a positive value; not
only because it has not the same influence on all anthropological
types of criminals, but also because its use is rather to preclude
the serious mischief which would result from impunity than to
convert, as some imagine that it can, an anti-social into a social
being. But impunity would lead to a demoralisation of the popular
conscience in regard to crimes and offences, to an increase of the
profound lack of foresight in criminals, and to the removal of the
present impediment to fresh crimes during the term of
incarceration.
It is the same with education, the modifying power of which is
commonly exaggerated. Education, though it has an enduring
influence on children, and is therefore more effectual than
punishment, is far more serviceable in eliminating anti-social
tendencies, whereof we all possess the germs, than in any supposed
creation of social tendencies and forces which were not present
from birth.
Thus, whilst the consequences of impunity and lack of education
are serious and mischievous, still this does not prove conversely
that punishment and education have in reality so positive an
influence as is commonly attributed to them.
It is precisely on the ground of this negative, yet real efficacy
of punishments, especially whilst they are being carried out,
that, whilst we appreciate the mitigation of punitive discipline
which has been achieved by the classical school, we
believe, on the other hand, that their abbreviation of the term of
punishments is altogether mistaken and dangerous. We admit that
punishment ought not to be an arbitrary and inhuman torture, and
for this reason we have no sympathy with the system of solitary
confinement, now so much in fashion with the classical jurists and
prison authorities, precisely because it is inhuman, as well as
unwise and needlessly expensive.
It is a psychological absurdity and a social danger, which
nevertheless underlies the new Italian penal code, that punishment
ought to consist more and more in a short isolation of the
prisoner. For, setting aside the well-known results of short
punishments, such as corruption and recidivism, it is evident that
in this way punishment is deprived of its main element of negative
efficiency against crime, as well as of its effect in preventing
crime during the incarceration of the criminal.
II.
Since punishments, instead of being the simple panacea of crime
which popular opinion, encouraged by the opinions of classical
writers on crime and of legislators, imagine them, are very
limited in their deterrent influence, it is natural that the
criminal sociologist should look for other means of social defence
in the actual study of crimes and of their natural origin.
We are taught by the everyday experience of the family, the
school, associations of men and women, and the history of social
life, that in order to lessen the danger of outbreaks of passion
it is more useful to take them in their origin, and in flank, than
to meet them when they have gathered force.
Bentham relates that in England the delays caused by hard-drinking
couriers, who used to be heavily fined without any good result,
were obviated by combining passenger traffic with the postal
service. Employers of labour secure industry and the most
productive work far more easily by offering a share of the
realised profits than by a system of fines. In the German
universities, academic jealousies and intolerance have been in
great measure overcome by paying the professors in proportion to
the number of their pupils, so that the Faculties find it to their
interest to engage and encourage the best professors, in order to
attract as many students as possible. Thus the activity and zeal
of professors, magistrates, and officials would be stimulated if
their remuneration depended not only on the automatic test of
seniority, but also on the progress displayed by publications,
sentences not reversed, settlements not cancelled, and the like.
It is better to regulate the disturbing restlessness of children
by timely diversions rather than by attempting to repress them in
a manner injurious to their physical and moral health. So in
lunatic asylums and prisons, work is a better means of order and
discipline than chains and castigation. In brief, we obtain more
from men by consulting their self-respect and interests than by
threats and restraint
If the counteraction of punishment must inevitably be opposed to
criminal activity, still it is more conducive to social order to
prevent or diminish this activity by means of an indirect and more
effective force.
In the economic sphere, it has been observed that when a staple
product fails, recourse is had to less esteemed substitutes, in
order to supply the natural wants of mankind. So in the criminal
sphere, as we are convinced by experience that punishments are
almost devoid of deterrent effect, we must have recourse to the
best available substitutes for the purpose of social defence.
These methods of indirect defence I have called penal
substitutes. But whereas the food substitutes are as a rule only
secondary products, brought into temporary use, penal substitutes
should become the main instruments of the function of social
defence, for which punishments will come to be secondary means,
albeit permanent. For in this connection we must not forget the
law of criminal saturation, which in every social environment
makes a minimum of crime inevitable, on account of the natural
factors inseparable from individual and social imperfection.
Punishments in one form or another will always be, for this
minimum, the ultimate though not very profitable remedy against
outbreaks of criminal activity.
These penal substitutes, when they have once been established in
the conscience and methods of legislators, through the teaching of
criminal sociology, will be the recognised form of treatment for
the social factors of crime. And they will also be more
possible and practical than that universal social metamorphosis,
direct and uncompromising, insisted on by generous but impatient
reformers, who scorn these substitutes as palliatives because
humanitarian enthusiasm causes them to forget that social
organisms, like animal organisms, can be only partially and
gradually transformed.
The idea of these penal substitutes amounts, in short, to this.
The legislator, observing the origins, conditions, and effects of
individual and collective activity, comes to recognise their
psychological and sociological laws, whereby he will be able to
obtain a mastery over many of the factors of crime, and especially
over the social factors, and thus secure an indirect but more
certain influence over the development of crime. That is to say,
in all legislative, political, economic, administrative, and penal
arrangements, from the greatest institutions to the smallest
details, the social organism will be so adjusted that human
activity, instead of being continually and unprofitably menaced
with repression, will be insensibly directed into non-criminal
channels, leaving free scope for energy and the satisfaction of
individual needs, under conditions least exposed to violent
disturbance or occasions of law-breaking.
It is just this fundamental idea of penal substitutes which shows
how necessary it is that the sociologist and legislator should
have such a preparation in biology and psychology as Mr. Spencer
justly insisted on in his ``Introduction to Social Science. '' And
it is the fundamental idea rather than the substitutes themselves
that we should bear in mind if we would realise their
theoretical and practical value as part of a system of criminal
sociology.
As for the efficacy of any particular penal substitute, I readily
admit, in some sense at least, the partial criticisms which have
been passed upon them. Apart from such as simply say that they do
not believe in the use of alternatives to punishment, and such as
confine themselves to the futile question whether this theory
belongs to criminal science or to police administration, a
majority of criminal sociologists have now definitely accepted the
doctrine of penal substitutes. This theory is accepted, not as an
absolute panacea of crime, but, as I have always stated it, in the
sense of a combination of measures analogous to penal repression;
in place of trusting solely to repression for the defence of
society against crime.
Let us take note of a few examples.
I. In the Economic Sphere. --Free Trade (apart from the
temporary necessity of protecting a particular manufacturing or
agricultural industry), by preventing famines and exceptional high
prices of and taxes on food, eliminates many crimes and offences,
especially against property. --Unrestricted emigration is a safety-
valve, especially for a country in which this phenomenon, assuming
large proportions, carries off many persons who are easily driven
to crime by wretchedness, or by their unbalanced energy. Thus the
number of recidivists has diminished in Ireland, not by virtue of
her prison systems, but by emigration, which reached forty-six per
cent. of released prisoners. In Italy, also, there has been a
decrease of crime since 1880, owing to other causes, such
as mild winters and plentiful harvests, but also through a vast
increase of emigration. --Smuggling, which for centuries resisted
extremely harsh punishments, such as amputation of the hand, and
even death, and which still resists prison and the fire-arms of
the revenue officers, is suppressed by the lowering of the import
tariff, as M. Villerme has shown in the case of France. So
that everyday facts justify the system of Adam Smith, who said
that the law which punished smuggling, after creating the
temptation, and which increased the punishment when it increased
the temptation, was opposed to all justice; whilst Bentham, on the
contrary, departing from his maxim that the punishment ought to be
dreaded more strongly than the offence attracted, called for the
stern repression of smuggling. --The system of taxation which
touches wealth and visible resources instead of the prime
necessaries of life, and which is proportional to the taxpayer's
income, diminishes the systematic frauds which no punishment
availed to stop, and it will also abolish the arbitrary and
exaggerated fiscal traditions which have been the cause of
rebellions and outrages. In fact, Fregier describes the
criminal industries which are called into existence by octrois,
and which will disappear with the abolition of these absurd and
unjust duties. And whilst M. Allard demonstrated that a decrease
of taxes on necessaries would have beneficial effects, not only in
economic affairs but also in respect of commercial frauds, the
Report on French Criminal Statistics for 1872 calmly continued to
call for more severe repression of such frauds. To this M.
Mercier replied that if the cause--that is to say,
disproportionate taxes--were not removed, it would be impossible
to prevent the effects. --Immunity from taxation for the minimum
necessary to existence, by preventing distraint, and the
consequent diminution of small properties, which means the
increase of the very poor, will obviate many crimes, as we see
from the agrarian conditions in Ireland. Thus there is a demand
in Italy for the inalienability of small properties, as in America
under the Homestead Exemption Law. --Public works, during famine
and hard winters, check the increase of crimes against property,
the person, and public order. For instance, during the scarcity
of 1853-5 in France, there was no such enormous increase of theft
as during the famine of 1847, simply because the Government set up
vast relief works in the winter months.
The taxes and other indirect restrictions on the production and
sale of alcohol are far more efficacious than our more or less
enormous gaols. The question of pronounced and chronic
drunkenness has increased in gravity, owing to its effect upon the
physical and moral health of the people.
In France the average consumption of wine, estimated at 62 litres
(13. 64 gallons) per head in 1829, exceeded 100 litres in 1869; and
in Paris the average of 120 litres in 1819-30, reached 227 litres
in 1881. The average yearly consumption of alcohol in France rose
from . 93 in 1829 to 3. 24 in 1872, and 3.
