No More Learning

The jury, then, is a retrogressive institution, as shown by
history and sociology, for it represents the mediaeval and
instinctive phase of criminal justice. It has, indeed, a few
advantages (there is always a certain profit in misfortune),
especially when it operates on the final outcome of the classical
theories--bringing to bear, for instance, an irresistible force
against repeated theft, or murders committed at the instigation of
others. And it has sometimes drawn attention to necessary penal
reforms, after accepting certain conclusions of the positive
school, such as the acquittal of criminals of passion, and
political prisoners, or a greater severity towards habitual
criminals.

But the only possible conclusion from the foregoing criticisms is
that the jury should be abolished for the trial of common crimes,
AFTER the introduction of reforms which would ensure the
capacity and independence of the judges.

Meanwhile, since it is much easier to establish a new social
institution than to abolish one, it is worth while to indicate the
principal and most urgent reforms which should be made in the jury
system, so as to eliminate its more serious and frequent
disadvantages.

The theoretical distinction of the classical school between
ordinary and political crimes is not very precise, for the so-
called political crimes are either not crimes (as when they are
confined to the manifestation of an idea), or they are common
crimes which spring from a lofty and social passion in
individuals, who have the characteristics of the criminal by
passion, or, in other words,--are but quasi-criminals; or else
they are common crimes committed by ordinary malefactors, under
the pretext of a popular idea. Instead of distinguishing crimes,
I think we ought to distinguish between ordinary and political
criminals, according to their determining motives, and the social
bearings and historical moment of their acts. At the same time,
whilst our criminal laws retain this distinction, I think it is
useful to keep the jury for the trial of political crimes and
offences, and for those connected with the press and with society
as a whole; for if in these cases the jury might yield to the
influence of class interests and prejudices (as for instance in
the trial of actions arising out of the conflict of capital and
labour), the danger will still be less than it would be with
judges alone, who are not sufficiently independent of the
executive, which in its turn is but the secular arm of the
dominant class, and which therefore combines the interests and
prejudices of the political order with those of the economic and
moral order which dominate the jury.

For common crimes it would be necessary to withhold from a
jury the trial of prisoners who avow their crime. The essence of
a trial by indictment is the principle that the discussion as to
punishment is a private affair, and it has no further ground for
existence when one of the parties withdraws from the duel. Hence
the English mistrust of a prisoner's confession of guilt, which in
the inquisitorial trial, on the other hand, is a mainstay of the
evidence. Yet I believe that in these cases the Scottish system
is preferable to the English. In England the judge begins by
asking the prisoner if he is Guilty or Not Guilty, and in case of
a confession he passes sentence without a verdict from the jury.
In Scotland, on the contrary, the prosecutor can furnish his
proof, in spite of the confession of the prisoner, and demand a
verdict from the jury. In this way it is possible to avoid not
only a scandalous acquittal of prisoners who have confessed their
guilt (as happens in Italy, France, and elsewhere), but also the
danger that the confession may not be true, and that an innocent
man may be condemned.

Juries ought, moreover, as proposed by M. Ellero, to specify
attenuating circumstances, on each of which a special question
ought to be put to them.

The jury ought also to have the right of spontaneously finding in
a sense less serious than that of the charge, even when no
corresponding question has been put to them.

But at the same time it cannot be denied that these would only be
palliatives, more or less efficacious.

The only positive conclusion is that, whilst retaining the jury
for crimes of the political and social order, we should aim
at its abolition for common crimes, immediately after securing
stringent reforms as to the independence and capacity of the
judges.


IV.

It needs no further demonstration that the modern organisation of
punishment, based partly on the assumption that we can measure the
moral culpability of criminals, and partly on an illusion as to
their general amendment, and almost entirely reduced, in
consequence, to imprisonment and the cell system, has absolutely
failed to protect society against crime.

Holtzendorff, one of the best known of the classical school,
frankly confessed that ``the prison systems have made shipwreck. ''
So also in Italy we have had disquisitions ``on the futility of
repression,'' and in Germany it has been held that ``existing
criminal law is powerless against crime. '' Thus the necessity of
taking steps to counteract this failure is forced upon us more and
more every day. We must proceed either by way of legislative
reforms, as effectual as we can make them, but always inspired by
reaction against the established prison system, or by a propaganda
on scientific lines. The most striking form which has been taken
by the latter process is the International Union of Penal Law,
which in 1891, two years after its foundation, numbered nearly six
hundred members of various nationalities, and which in the second
clause of its charter, in spite of the varied reservations of a
few members, notably supported the positive theories.

The defects of the penal system inspired by the theories of
the classical school of criminal law, and by the actual
regulations of the classical prison school, may be briefly summed
up. They are, a fallacious scale of moral responsibility;
absolute ignorance and neglect of the physio-psychological types
of criminals; intervals between verdict and sentence on the one
hand, and between the sentence and its execution on the other,
with a consequent abuse of pardons; disastrous practical effects
of corruption and of criminal association in prisons; millions of
persons condemned to short terms of imprisonment, which are
foolish and absurd; and a continuous, inexorable increase of
recidivism.

So that the tribunals of Europe, as M. Prins observed, with the
absolute impersonality of modern justice, allow their sentences to
fall upon unhappy wretches as a tap allows water to fall drop by
drop upon the ground.

Without counting fines or police detention, there were sentenced
in Italy, in the ten years 1880-89, to various terms of
imprisonment, 587,938 persons by the Pretors, and 465,130 by the
Correctional Tribunals. That is, more than a million terms in the
minor courts within ten years!

And the total number sentenced in Italy to various punishments, by
Pretors, Tribunals, and Assize Courts, in the same ten years, was
not less than 3,230,000.

As for recidivism, without repeating the familiar figures of its
annual increase, it will suffice to recall the astounding fact to
which I drew attention before the central Commission of Legal
Judicial Statistics. That is to say, amongst the prisoners
condemned in 1887 for simple homicide, there were 224 who had been
already condemned, either FOR THE SAME CRIME (63), or for a
crime mentioned in the same section of the penal code (181); and
even of those condemned for qualified manslaughter, 78 had already
been condemned, either FOR THE SAME CRIME (8), or for one of
like character.

In France we have figures equally striking, for they relate not to
the effect of exceptional conditions, or conditions peculiar to
this or that country, but to the uniform consequence of the
classical theories of criminal law and prison organisation.

The total number condemned to imprisonment by the French
tribunals, and detained by the police, in the ten years 1879-88,
was 1,675,000; the Tribunal sentences under six days being
113,000.

And the total condemned to punishments of various kinds, by Assize
Courts, Tribunals, and police courts, reached in the same ten
years the enormous number of 6,440,000 individuals!

The meaning of this is that penal justice at the present moment is
a vast machine, devouring and casting up again an enormous number
of individuals, who lose amongst its wheels their life, their
honour, their moral sense, and their health, bearing thenceforth
the ineffaceable scars, and falling into the ever-growing ranks of
professional crime and recidivism, too often without a hope of
recovery. [19]



[19] As regards recidivism and the enormous numbers tried, England
is in as bad a position as Italy and France. See my articles in
Nineteenth Century, 1892, and Fortnightly Review, 1894. --ED.



It is impossible, then, to deny the urgent necessity of
substituting for our present penal organisation a better system
corresponding to the governing conditions of crime, more effectual
for social defence, and at the same time less gratuitously
disastrous for the individuals with whom it deals.

The positive school, in addition to the partial reforms proposed
by Lombroso, and by myself in the second edition of this work, has
put forward in the Criminology of Garofalo a ``rational system
of punishment,'' whereof it is desirable to give a summary.


I. MURDERERS (moral insensibility and instinctive
cruelty) who commit--

Murder for greed, or other selfish
gratification Criminal Lunatic Asylums: or
Murder unprovoked by the victim the death penalty.
Murder with attendant cruelty


II. VIOLENT OR IMPULSIVE CHARACTERS (deficiency
of the sense of pity, with prejudices on the
subject of honour, on the duty of revenge, &c. ).
Adults who commit--

Violent assault suddenly provoked Removal of the offender from the
by a cruel injury neighbourhood of the victim or
Justifiable homicide in self-defence his family.

Transportation to an island, colony
Homicide to avenge honour or village--at liberty, under
(isolated or endemic) supervision (for an indefinite
period, with from 5 to 10 years
supervision).

Bodily injury during a quarrel; Damages and fine: heavy for such
slight and transitory malice; as can pay. Alternative
blows; threats; slander; verbal penalty:--deduction from wages,
insults or forced labour. Imprisonment
in case of refusal.

Malicious injury or disfigurement; Criminal lunatic asylum (for
mutilation; rape or outrage with hysterical or epileptic), or
violence; restraint on personal Transportation for an indefinite
liberty period, with supervision from 5
to 10 years.

Young persons who commit-- Criminal lunatic asylums (for
those with congenital
Crimes of violence without excuse, tendencies).
or rape Penal colony in case of relapse.
Transportation without constraint.

III. DISHONEST CRIMINALS. Adults who commit--
Habitual theft, swindling, incendiarism, Lunatic asylums (if insane or
forgery, extortion epileptic). Transportation.
Labour-gangs (unfixed periods);
Occasional theft; swindling; or suspension of right to exercise
forgery; extortion; incendiarism a profession, until complete
reparation of damage.

Peculation; embezzlement; sale of Loss of office. Suspension of
offices; abuse of authority civil rights. Fine. Restitution.

Incendiarism; vindictive destruction Reparation of damage (with optional
of property (without personal imprisonment). Criminal
injury) lunatic asylums (for the insane).
Transportation (for recidivists).

Bankruptcy, when due to malpractice Restitution. Prohibition to trade
or to discharge public functions.

Uttering false coin; forgery of stock Imprisonment (unfixed periods)
and certificates; personation, and fine, in addition to loss of
false witness, &c. office, and restitution.

Bigamy, palming or concealment of Banishment for unfixed periods.
birth


Young persons who commit--
Theft, swindling, &c. An agricultural colony (for unfixed
periods).


IV. Persons guilty of--

Outbreaks, resistance or disobedience Imprisonment(for unfixed periods)
to authority



In other words, the system of repression proposed
by M. Garofalo amounts to this:--

Absolute elimination of the criminal
Penalty of death
Criminal lunatic asylum.
Transportation with liberty.
Perpetual banishment.

Relative elimination Banishment for various periods.
Agricultural colonies.
Interdiction from a particular
neighbourhood.

By payment of money.
Reparation of damages Deduction from wages.
Fine (going to the State) Forced labour, without
Indemnification of the victims imprisonment.

Imprisonment for fixed periods for special offences (forgery and
outbreaks);
or as alternative to indemnification or forced labour.
Interdiction of certain professions and public functions.



M. Liszt also, agreeing with the positive school in regard to the
necessity of a radical reform in the penal system, yet with
certain reservations, has propounded a scheme, which, however, as
it does not sufficiently consider various classes of criminals,
whom he divides merely into the habitual and the occasional, would
need completion, especially in comparison with the well-reasoned
scheme of Garofalo. M. Liszt's system is as follows:--

Punishment by fines.

In proportion to the property of the
offender--not alternative with For offences (with alternative
imprisonment imprisonment).

Capable of being worked out by For contraventions of the law
forced labour without imprisonment (without imprisonment).

Conditional sentences.

For first offenders condemned to
imprisonment, with or without For offences punishable by
sureties for three years imprisonment.

Imprisonment (for an indeterminate period, a maximum and minimum
being enacted).
Separate confinement--six weeks to two years.

House of detention (separate for 2 to 15 years (with police
one year, then gradual relaxation supervision and assistance of
discharged prisoners)--or for life.

Indemnifications (always as a civil liability) added to other penalties.



I believe, however, that it is necessary, before laying down
practical and detailed schemes, more or less complete, to
establish certain general criteria, based upon the
anthropological, physical, and social data of crime, such as may
lead up to a positive system of social defence.

These fundamental criteria, it seems to me, can be reduced to the
three following:--(1) No fixity in the periods of segregation of
criminals; (2) the social and public character of the exaction of
damages; (3) the adaptation of defensive measures to the various
types of criminals.

1. For every crime which is committed, the problem of punishment
ought no longer to consist in administering a particular dose, as
being proportionate to the moral culpability of the criminal; but
it should be limited to the question whether by the actual
conditions (breach of law or infliction of injury) and by the
personal conditions (the anthropological type of the criminal) it
is necessary to separate the offender from his social environment
for ever, or for a longer or shorter period, according as he is or
is not regarded as capable of being restored to society, or
whether it is sufficient to exact from him a strict reparation of
the injury which he has inflicted.

Under this head there is a radical contradiction. The
existing schemes of punishment, differing in their machinery (and
out of harmony with the sentence of the judge, often even with the
terms of the law), are all based on the principle of fixed periods
of punishment, graduated into hundreds and thousands of possible
doses, and have regard far more to the crime than to the criminal.
On the other hand we have the positive system of punishment, based
on the principle of an unfixed segregation of the criminal,
which is a logical consequence of the theory that punishment ought
not to be the visitation of a crime by a retribution, but rather a
defence of society adapted to the danger personified by the
criminal.

This principle of unfixed punishment is not new, but it is only
the positive theory which has given it system and life. The idea
of justice as assigning punishment to a crime, measured out by
days and weeks, is too much opposed to the principle of the
indeterminate sentence to allow it to receive any systematic trial
under the sway of the classical theories. There has been only an
isolated and exceptional use of it here and there, such as the
seclusion of mad criminals in special asylums, ``during her
Majesty's pleasure,'' in England. Nevertheless, personal freedom
(which is held to be violated by seclusion for unfixed periods) is
greatly respected by the English people.

The fundamental principle of law is that of a restriction imposed
by the necessity of social existence. It is evident, therefore,
to begin with, that seclusion for an unfixed period, as for life,
is in no way irreconcilable with this principle of law, when
imposed by necessity. Thus it has been proposed, even by
the classical school, as a mode of compensation or adjustment.

If, indeed, we admit an increase of punishment for a first
relapse, it is logical that this increase should be proportional
to the number of relapses, until we come to perpetual seclusion or
transportation, and even to death, as under the mediaeval laws.
So that there are some of the classical school who, by way of
being logical if not practical, and refusing to admit progressive
increase, begin by refusing increase in any degree, even for a
first relapse.

Moreover, if the jurists agree in allowing conditional liberation,
before the term assigned in the sentence, when the prisoner seems
to have given proof of amendment, the natural consequence, by mere
abstract logic, ought to be a prolongation of punishment for the
prisoner who is not amended, but continues to be dangerous.

This is admitted, amongst others, by Ortolan, Davesies de
Pontes, and Roeder, who quote as favourable, though only for
recidivists, Henke Stelzer, Reichmann, Mohl, Groos, von Struve,
von Lichtenberg, Gotting, Krause, Ahrens, Lucas Bonneville,
Conforti, and others, amongst students of criminality; and
Ducpetiaux, Ferrus, Thomson, Mooser, Diez, Valentini, and D'Alinge
amongst prison experts.

After this first period, the principle of segregation for an
unfixed term, as a basis for the penal system, has been supported
by Despine, and developed by a few German writers. These latter
have insisted especially on the disadvantages of the penal
systems inspired by the classical theories, though they run
somewhat to excess, like Mittelstadt, who proposed the re-
establishment of the brutal punishment of flogging.

In corporal punishments, it is true, there would be a certain gain
of efficaciousness, particularly against such hardened offenders
as the born criminals, so that there is a reaction in favour of
these punishments. M. Roncati, for instance, writing of prison
hygiene, says that he would be glad to see ``the maternal
regime,'' with its salutary use of physical pain before the
child has developed a moral sense; and if flogging is
objectionable, resort might be had to electricity, which is
capable of giving pain without being dangerous to health or
revolting. Similarly Bain says that the physiological theory of
pleasure and pain has a close relation to that of rewards and
punishments, and that, as punishment ought to be painful, so long
as it does not injure the convict's health (which imprisonment is
just as likely to do), we might have recourse to electric shocks,
which frighten the subject by their mysterious power, without
being repugnant. Again, the English Commission of Inquiry into
the results of the law of penal servitude declared in its report
that, ``In English prisons, disciplinary corporal punishments
(formerly the lash, then the birch) are inflicted only for the
most serious offences. The evidence has shown that in many cases
they produce good results. ''

Nevertheless corporal punishments, as the main form of repression,
even when carried out with less barbarous instruments, are
too deeply opposed to the sentiment of humanity to be any longer
possible in a penal code. At the same time they are admissible as
disciplinary punishments, under the form of cold baths, electric
shocks, &c. , all the more because, whether prescribed by law or
not, they are inevitable in prisons, and, when not regulated by
law, give rise to many abuses, as was shown at the Stockholm
Prison Conference in 1878.

I agree with Kirchenheim that Dr. Kraepelin's scheme of seclusion
for unfixed periods is more practical and hopeful. When the
measure of punishment is fixed beforehand, the judge, as Villert
says, ``is like a doctor who, after a superficial diagnosis,
orders a draft for the patient, and names the day when he shall be
sent out of hospital, without regard to the state of his health at
the time. '' If he is cured before the date fixed, he must still
remain in the hospital; and he must go when the time is up, cured
or not.

Semal reached the same conclusion in his paper on ``conditional
liberation,'' at the second Congress of Criminal Anthropology.

And this notion of segregation for unfixed periods, put forward in
1867 for incorrigible criminals by the Swiss Prison Reform
Association, has already made great progress, especially in
England and America, since the Prison Congress of London (1872)
discussed this very question of indefinite sentences, which the
National Prison Congress at Cincinnati had approved in the
preceding year.

In 1880 M. Garofalo and I both spoke in favour of
indefinite segregation, though only for incorrigible
recidivists; and the same idea was strikingly supported in M. Van
Hamel's speech at the Prison Congress at Rome (1885). The
eloquent criminal expert of Amsterdam, speaking ``on the
discretion which should be left to the judge in awarding
punishment,'' made a primary distinction between habitual
criminals, incorrigible and corrigible, and occasional criminals.
``For the first group, perpetual imprisonment should depend on
certain conditions fixed by law, and on the decision of the judge
after a further inquiry. For the second group, the application of
an undefined punishment after the completion of the first sentence
will have to depend in the graver cases on the conditions laid
down by law, and in less serious cases upon the same conditions
together with the decision of the judge, who will always decide
from time to time, after further inquiry, as to the necessity for
prolonging the imprisonment. For the third group, the judge will
have to be limited by law, in deciding the punishment, by special
maximums, and with a general minimum. ''

The Prison Congress of Rome naturally did not accept the principle
of punishment for unfixed periods. More than that, advancing on
the classical tendency, it decided that ``the law should fix the
maximum of punishment beyond which the judge may not in any case
go; and also the minimum, which however may be diminished when the
judge considers that the crime was accompanied by extenuating
circumstances not foreseen by the law. ''

It is only of late years, in consequence of the reaction
against short terms of imprisonment, that the principle of
segregation for unfixed periods has been developed and accepted by
various writers, in spite of the feeble objections of Tallack,
Wahlberg, Lamezan, von Jagemann, &c.

Apart, also, from theoretical discussion, this principle has been
applied in a significant manner in the United States, by means of
the ``indeterminate sentence. '' The House of Correction at Elmira
(New York) for young criminals carries into effect, with special
regulations of physical and moral hygiene, the indeterminate
imprisonment of young prisoners; and this principle, approved by
the Prison Congresses at Atlanta (1887), Buffalo (1888), and
Nashville (1889), has been applied also in the New York prisons,
and in the States of Massachusetts, Pennsylvania, Minnesota, and
Ohio.

M. Liszt proposes that the indeterminate character of punishment
should be only relative, that is to say, limited between a minimum
and a maximum, these being laid down in the sentence of the judge.
Special commissions for supervising the administration of
punishment, consisting of the Governor of the prison, the Public
Prosecutor, the judge who heard the case, and two members
nominated by Government (instead of the court which passed
sentence, as proposed by Villert and Van Hamel), should decide on
the actual duration of the punishment, after having examined the
convict and his record. Thus these commissions would be able to
liberate at once (with or without conditions) or to order a
prolongation of punishment, especially for habitual criminals.

With the formation of these commissions there might be associated
the prison studies and aid of discharged prisoners referred to on
a former page.

But I think that this proposal of M. Liszt is acceptable only for
commissions of supervision, or of the execution of punishment,
such as already exist in several countries, with a view solely to
prison administration and benevolence, and in which of course the
experts of criminal anthropology ought to take part, who, as I
have suggested, should be included in every preliminary criminal
inquiry. As for the determination of the maximum and minimum in
such a sentence, I believe it would not be practicable; the acting
commissions might find it necessary to go beyond them, and it
would be opposed to the very principle of indeterminate
segregation. The reason given by M. Liszt, that with this
provision the contrast with actual systems of punishment would be
less marked, does not seem to me decisive; for the principle we
maintain is so radically opposed to traditional theories and to
legislative and judicial custom that this optional passing of the
limits would avoid no difficulty, whilst it would destroy the
advantages of the new system.

In other words, when the conditions of the act committed and the
criminal who has committed it show that the reparation of the
damage inflicted is not sufficient by way of a defensive measure,
the judge will only have to pronounce in his sentence an
indefinite detention in the lunatic asylum, the prison for
incorrigibles, or the establishments for occasional criminals
(penal colonies, &c. ).

The execution of this sentence will be rendered definite by
successive steps, which will no longer be detached, as they now
are, from the action of the magistrate, and taken without his
knowledge, but will be a systematic continuation of his work.
Permanent commissions for the supervision of punishment, composed
of administrative functionaries, experts in criminal anthropology,
magistrates, and representatives of the Public Prosecutor and the
defence, would render impossible that desertion and oblivion of
the convict which now follow almost immediately on the delivery of
the sentence, with the execution of which the judge has nothing to
do, except to see that he is represented. Pardon, or conditional
liberation, or the serving of the full punishment, are all left at
present to the chance of a blind official routine. These
commissions would have great social importance, for they would
mean on one hand the protection of society against imprudent
liberation of the most dangerous criminals, and on the other hand
the protection of the less dangerous against the danger of an
imprisonment recognised as excessive and unnecessary.


Allied to the principle of indeterminate segregation is that of
conditional release, which with the progressive prison system,
known as the Irish, is now accepted in nearly all European
countries. But conditional liberation in the system of definite
punishments, without distinction amongst the types of criminals,
is both contradictory in theory and ineffectual in practice. At
present, indeed, it has only a mechanical and almost impersonal
application, with one fallacious test, that of the alleged
``good conduct'' of the prisoner, which, according to the English
Inquiry Commission in 1863, ``can only have the negative value of
the absence of grave breaches of discipline. ''

It will be understood that conditional release, as it would be
organised in the positive system of indeterminate segregation,
ought only to be granted after a physio-psychological examination
of the prisoner, and not after an official inspection of
documents, as at present. So that it will be refused, no longer,
as now, almost exclusively in regard to the gravity of the crime,
but in regard to the greater or less re-adaptability of the
criminal to social conditions. It will therefore be necessary to
deny it to mad and born criminals who are guilty of great crimes.

Conditional liberation is now carried out under the special
supervision of the police; but this is an ineffectual measure for
crafty criminals, and disastrous for occasional criminals, who are
shut out by the supervision from re-adaptation to normal
existence. The system of indeterminate segregation renders all
special supervision useless. Moreover, this duty only distracts
policemen by compelling them to keep an eye on a few hundred
liberated convicts, and to neglect thousands of other criminals,
who increase the number of unknown perpetrators of crime.

Similarly as to the discharged prisoners' aid societies, which,
notwithstanding their many sentimental declamations, and the
excellence of their intentions, continue to be as sterile as they
are benevolent. The reason here also is that they forget
to take into account the different types of criminals, and that
they are accustomed to give their patronage impartially to all
discharged prisoners, whether they are reclaimable or not. It
must not be forgotten, moreover, that this aiding of malefactors
ought not to be exaggerated when there are millions of honest
workmen more unfortunate than these liberated prisoners. In spite
of all the sentimentalism of the prisoners' aid societies, I
believe that a foreman will always be in the right if he chooses
an honest workman for a vacancy in his workshops in preference to
a discharged prisoner.

At the same time these societies may produce good results if they
concern themselves solely with occasional criminals, and
especially with the young, and make their study of crime
contribute to the training of future magistrates and pleaders.


2. The second fundamental principle of the positive system of
social defence against crime is that of indemnification for
damage, on which the positive school has always dwelt, in
combination with radical, theoretical, and practical reforms.

Reparation of damage suffered by the victims of crime may be
regarded from three different points of view:--(1) As an
obligation of the criminal to the injured party; (2) as an
alternative for imprisonment for slight offences committed by
occasional criminals; and (3) as a social function of the State on
behalf of the injured person, but also in the indirect and not
less important interest of social defence.

The positive school has affirmed the last two reforms--the second
on the initiative of Garofalo and Puglia, and the third on my own
proposal, which, as being more radical, has been more sharply
contested by the classical and eclectic schools.

In my treatise on ``The Right of Punishment as a Social
Function,'' I said: ``Let us not be told that civil
reparation is no part of penal responsibility. I can see no
real difference between the payment of a sum of money as a fine
and its payment as damages; but more than that, I think a mistake
has been made in separating civil and penal measures too
absolutely, whereas they ought to be conjoined for defensive
purposes, in preventing certain particular anti-social acts. ''
And again, classifying the measures of social defence (``measures
of prevention, reparation, repression, and elimination''), I said
in regard to measures of reparation: ``Our proposed reform is not
intended to be theoretical merely, for indeed it may be said
already that this liability to indemnify is established in the
majority of cases; but it should be above all a practical reform,
in the sense that, instead of separating civil and penal measures,
we shall make their joint application more certain, and even
require special regulations to compel the criminal judges, for
instance, to assess the damages, and so avoid the delays and
mischances of a new trial before the civil judges, and to compel
the Public Prosecutor to make an official demand, even when
through ignorance or fear there is no action on the part of the
injured person, that the criminal should be condemned to make good
the loss which he has inflicted. It will then be seen that
the fear of having to make strict restitution will be a spur to
the diligence of the well-to-do, in regard to involuntary
offences, whilst for the poor we shall be able to impose work on
behalf of the injured person in place of pecuniary damages. ''

Shortly afterwards Garofalo wrote: ``In the opinion of our
school, for many offences, especially slighter offences against
the person, it would be serviceable to substitute for a few days'
imprisonment an effectual indemnification of the injured party.
Reparation of damage might become a genuine penal substitute, when
instead of being, as now, a legal consequence, a right which can
be enforced by the rules of civil procedure, it would become an
obligation from which the accused could in no way extract
himself. ''

Of all the positive school, Garofalo has insisted most strongly on
these ideas, enlarging upon them in various proposals for the
practical reform of procedure.

The principle has made further progress since the speech of M.
Fioretti at the first Congress of Criminal Anthropology (Rome,
1885), which adopted the resolution brought forward by MM. Ferri,
Fioretti, and Venezian: ``The Congress, being convinced of the
importance of providing for civil indemnification, in the
immediate interest, not only of the injured party, but also of
preventive and repressive social defence, is of opinion that
legislation could most expeditiously enact the most suitable
measures against such as cause loss to other persons, and against
their accomplices and abettors, by treating the recovery of
damages as a social function assigned to its officials,
that is to say, to the Public Prosecutor at the bar, to the judges
in their sentences, to the prison officials in the ultimate
payment for prison labour, and in the stipulation for conditional
release. ''

The classical principle that indemnification for loss caused by an
unlawful act is a purely civil and private obligation of the
offender (like that created by any breach of contract! ), and that
in consequence it ought to be essentially distinct from the penal
sentence which is a public reparation, has inevitably caused the
complete oblivion of indemnification in every-day judicial
practice. For the victims of crime, finding themselves compelled
to resort to the courts, and fearing the expense of a civil trial
to give effect to the sentence of damages and interest thereon,
have been driven to abandon the hope of seeing their loss actually
and promptly compensated. Hence the necessity for some paltry
compromise, which has to be accepted almost as a generous
concession from the offender, together with the revival of private
vengeance, and a loss of confidence in the reparatory action of
social justice.

Even in the scientific domain it has come about that criminal
experts have abandoned the question of indemnification to the
civil experts, and these in their turn have almost suffered it to
pass into oblivion, inasmuch as they always regarded it as
belonging to matters of penal law and procedure.

It is only by the radical innovation of the positive school that
this legal custom has received new energy and vitality.
I do not, however, intend in this place to concern myself with
indemnification from the first point of view, namely, the forms of
procedure necessary to render it more strict and effectual, such
as the official demand and execution by the Public Prosecutor,
even when no action is brought by the injured party; the fixing of
the damages in every penal sentence; the immediate lien and claim
upon the goods of the condemned person, so as to avoid the
pretence of inability to pay; the paying down of the sum, or a
part of the salary or wages of solvent defendants; compulsory
labour by those unable to pay; the assignment of part of the
prison wages for the benefit of the victims; the payment of all or
most of the damages as a necessary condition of pardon or
conditional release; the establishment of a treasury of fines for
prepayment to the family of the victims; the liability of the
heirs of the condemned persons for indemnifications, and so forth.

All these propositions are in sharp contrast with Art. 37 of the
new Italian penal code, which has given no other guarantee to the
victims of offences than the superfluous, or ironical, or immoral
declaration that ``penal condemnation does not prejudice the right
of the injured person to restitution and indemnification''--as
though there were any doubt of the fact.

I only wish to insist on the question of principle, that is, on
the essentially public character which we assign to
indemnification as a social function. For us, to compare the
liability of the criminal to repair the loss caused by his crime
with the liability arising from breach of contract is simply
immoral.

Crime, just as it implies a social reaction in the form of an
indefinite segregation of the criminal, when the act is serious
and the author dangerous, ought also to imply a social reaction in
the shape of indemnification, accessory to segregation when that
is necessary, or adequate by itself for social defence when the
act is not serious, and the author is not dangerous. For slight
offences by occasional criminals, strict indemnification will, on
the one hand, avoid the disadvantages of short terms of
imprisonment, and will, on the other hand, be much more
efficacious and sensible than an assured provision of food and
shelter, for a few days or weeks, in the State prisons.

Indemnification may naturally take two forms, as a fine or an
indemnity payable to the State, and as an indemnity or a
reparation payable to the injured person.

It may also be added that the State should be made responsible for
the rights of the victims, and give them immediate satisfaction,
especially for crimes of violence, recouping itself from the
offender, as it does, or ought to do, for legal costs.

The evolution of punishment is a striking proof of this. First,
the reaction against crime is an entirely private concern; then it
assumes a weaker form in pecuniary reparation, whereof, by and by,
a portion goes to the State, which presently retains the whole
sum, leaving to the victim the poor consolation of proceeding
separately for an indemnification. Nothing therefore could be
more in accord with this evolution of punishment than the proposed
reform, whereby the indemnification of a merely private
injury, as it is regarded in the primitive phase of penal justice,
becomes a public function, so far as it is the legal and social
consequence of the offence.

The classical principles in this respect, and the practical
consequences which flow from them, are more like a humorous farce
than an institution of justice; and it is only the force of habit
which prevents the world from realising its full comicality.

In fine, citizens pay taxes in return for the public services of
the State, amongst which that of public security is the chief.
And the State actually expends millions every year upon this
social function. Nevertheless, every crime which is committed is
followed by a grotesque comedy. The State, which is responsible
for not having been able to prevent crime, and to give a better
guarantee to the citizens, arrests the criminal (if it can arrest
him--and seventy per cent. of DISCOVERED crimes go unpunished).
Then, with the accused person before it, the State, ``which ought
to concern itself with the lofty interests of eternal justice,''
does not concern itself with the victims of the crime, leaving the
indemnification to their prosaic ``private interest,'' and to a
separate invocation of justice. And then the State, in the name
of eternal justice, exacts from the criminal, in the shape of a
fine payable into the public treasury, a compensation for its own
defence--which it does not secure, even when the crime is only a
trespass upon private property!

Thus the State, which cannot prevent crime, and can only repress
it in a small number of cases, and which fails accordingly
in its first duty, for which the citizens pay it their taxes,
demands a price for all this! And then again the State,
sentencing a million and a half to imprisonment within ten years,
puts the cost of food and lodging on the shoulders of the same
citizens, whom it has failed either to defend or to indemnify for
the loss which they have suffered! And all in the name of eternal
retributive justice.

This method of ``administering justice'' must be radically
altered. The State must indemnify individuals for the damage
caused by crimes which it has not been able to prevent (as is
partially recognised in cases of public disaster), recouping
itself from the criminals.

Only then shall we secure a strict reparation of damage, for the
State will put in motion its inexorable fiscal machinery, as it
now does for the recovery of taxes; and on the other hand the
principle of social community of interests will be really admitted
and applied, not only against the individual but also for him.
For we believe that if the individual ought to be always
responsible for the crimes which he commits, he ought also to be
always indemnified for the crimes of which he is the victim.

In any case, as the indefinite segregation of the criminal is the
fundamental principle of the positive system of social defence
against crime, apart from the technical systems of imprisonment
and detention, so indemnification as a social function is a second
essential principle, apart from the special rules of procedure for
carrying it into effect.

These two fundamental principles of the positive system would
still be incomplete if they did not come into practical operation
according to a general rule, which leads up to the practical
organisation of social defence--that is to say, the adaptation of
defensive measures to the various criminal types.

The tendency of the classical theories on crime and prison
discipline is in sharp contrast, for their ideal is the
``uniformity of punishment'' which lies at the base of all the
more recent penal codes.

If for the classical school the criminal is but an average and
abstract type, the whole difference of treatment is, of course,
reduced to a graduation of the ``amount of crime'' and the
``amount of punishment. '' And then it is natural that this
punitive dosing should be more difficult when the punishments are
different in kind, and not very similar in their degrees of
coincident afflictive and correctional power. Thus the ideal
becomes a single punishment, apportioned first by the legislature
and then by the judge, in an indefinite number of doses.

Here and there a solitary voice has been heard, even amongst the
classical experts, objecting to this tendency towards dogmatic
uniformity; but it has had no influence. The question brought
forward by M. D'Alinge at the Prison Congress in London
(Proceedings, 1872, p. 327), ``whether the moral classification
of prisoners ought to be the main foundation of penitentiary
systems, either in association or on the cellular plan,'' which he
himself decided in the affirmative, was not so much as discussed,
and it was not even referred to at the successive
Congresses at Stockholm (1878), Rome (1885), and St. Petersburg
(1889). On the contrary, the Congress at Stockholm decided that,
``reserving minor and special punishments for certain slight
infractions of the law, or for such as do not point to the corrupt
nature of their authors, it is desirable to adopt for every prison
system the greatest possible legal assimilation of punishments by
imprisonment, with no difference except in their duration, and the
consequences following upon release. ''[20]



[20] Proceedings, i. 138-70, 551-7, 561-3. Now and then,
however, a prison expert of more positive tendencies maintains
``the very great use, or rather the scientific necessity, of the
classification of prisoners as a basis for the punitive and prison
system'' (Beltrani Scalia. )



To positivists, the ``uniformity of punishment,'' even of mere
detention, appears simply absurd, since it ignores the capital
fact of different categories of criminals.

There must be homogeneity between the evil and its remedy; for, as
Dumesnil says, ``the prisoner is a moral (I would add a physical)
patient, more or less curable, and we must apply to him the great
principles of the art of medicine. To a diversity of ills we must
apply a diversity of remedies. ''

In this connection, however, we must avoid the two extremes,
uniformity of punishment and the so-called individualisation of
punishment, the latter especially in fashion amongst American
prison experts. No doubt it would be a desirable thing to apply a
particular treatment to each convict, after a physical and
psychological study of his individuality, and of the conditions
which led him into crime; but this is not practicable when the
number of prisoners is very great, and the managing staff
have no adequate notions of criminal biology and psychology. How
can a governor individualise the penal treatment of four or five
hundred prisoners? And does not the cellular system, which
reduces the characteristic manifestations of the personal
dispositions of prisoners to a minimum, levelling them all by the
uniformity of routine and silence, render it impossible to observe
and get to know the special character of each condemned person,
and so specialising the discipline? Where, too, are we to find
the necessary governors and warders who would know how to
discharge this difficult duty? The solid fact that particular
houses of correction or punishment are in excellent condition when
their governors have the psychological intuition of a De Metz, a
Crofton, a Spagliardi, or a Roukawichnikoff, and languish when he
departs, strikingly demonstrates that the whole secret of success
lies in the spirit of a wise governor, skilled in psychology,
rather than in the slender virtue of the cell.

Just as an imperfect code with good judges succeeds better than a
``monumental'' code with foolish judges, so a prison system,
however ingenious and symmetrical, is worthless without a staff to
correspond.

And as the question of the staff is always very serious,
especially for financial reasons, I believe that, instead of the
impracticable idea of individualisation in punishment, we ought to
substitute that of classification, which is equally efficacious
and more easily applied. It cannot be denied that criminal
anthropologists are not all agreed on the classification of
criminals. But I have already shown that the differences
between proposed classifications are only formal and of secondary
importance; and again, the number of those who agree to the
classification which I have proposed increases day by day.

Before inquiring how we can practically organise the positive
system of social defence on the basis of this anthropological
classification of criminals, we must bear in mind two rules,
common to all the technical proposals of the same system.

First, care must be taken that segregation does not become or
continue to be (as it is too often at present) a welcome refuge of
idleness and criminal association, instead of a deprivation.

Penitentiaries for condemned prisoners--the classical prison
experts make no distinction between their cells for prisoners
before trial and those for convicts! --should not be so comfortable
as to excite the envy (a vast injustice and imprudence) of the
honest and ill-fed rural labourer vegetating in his cottage, or of
the working-man pining in his garret.

Secondly, the obligation to labour should be imperative for all
who are in prison, except in case of sickness. Prisoners should
pay the State, not as now for their tobacco and wine, but for
food, clothes, and lodging, whilst the remainder of their earnings
should go to indemnify their victims.

The classical theory declares that ``the State,'' as Pessina
writes, ``being compelled to adopt deprivation of liberty as the
principal means of penal repression and retribution, contracts an
absolute obligation to provide those whom they punish in
this way not only with bodily sustenance, but also with the means
of supplying their intellectual and moral needs. '' So the State
maintains in idleness the majority even of those who are said to
be ``sentenced to hard labour,'' and the offence, after it has
served the turn of the offender, further assures him free lodging
and food, shifting the burden on to honest citizens.

I cannot see by what moral or legal right the crime ought to
exempt the criminal from the daily necessity of providing for his
own subsistence, which he experienced before he committed the
crime, and which all honest men undergo with so many sacrifices.
The irony of these consequences of the classical theories could
not, in fact, be more remarkable. So long as a man remains
honest, in spite of pathetic misery and sorrow, the State takes no
trouble to guarantee for him the means of existence by his labour.
It even bans those who have the audacity to remind society that
every man, by the mere fact of living, has the right to live, and
that, as work is the only means of obtaining a livelihood, every
man has the right (as all should recognise the duty) of working in
order to live.

But as soon as any one commits a crime, the State considers it its
duty to take the utmost care of him, ensuring for him comfortable
lodging, plenty of food, and light labour, if it does not grant
him a happy idleness! And all this, again, in the name of eternal
and retributive justice.

It may be added that our proposals are the only way of
settling the oft-recurring question as to the economic competition
(by the price of commodities), and the moral competition (in the
regularity of work) which prison labour unjustly wages with free
and honest labour. As a matter of fact, as prisoners can only
remain idle or work, they must clearly be made to work. But they
must be made to work at trades which come less into competition
with free labour and it is especially necessary to give prisoners
wages equal to those of free labourers, on condition that they pay
the State for their food, clothes, and lodging, whilst the
remainder goes to indemnify their victims.

Over the prison gates I should like to carve that maxim of
universal application: ``He who will not work, neither shall he
eat. ''



V.

Since the novel proposals put forward half a century ago, amongst
others by doctors Georget and Brierre de Boismont, a whole library
of volumes has been published in favour of criminal lunatic
asylums. A few voices here and there were heard in opposition or
reserve, but these have almost entirely ceased.

Criminal lunatic asylums were adopted in England as early as 1786.
In 1815 Bethlehem Hospital was appropriated to criminal lunatics,
and the Broadmoor Asylum was founded in 1863. Similar asylums
exist at Dundrum in Ireland (1850), at Perth in Scotland (1858),
at New York (1874), and in Canada (1877).

On the continent of Europe there is not to this day a regular
asylum for mad criminals, though France, after an
experiment in treating condemned madmen at Bicetre, opened a
separate wing for them in the prison at Gaillon. Holland has
assigned to them the hospital of Bosmalen (Brabant); Germany has
special wards in the establishments at Waldheim, Bruchsaal, Halle,
and Hamburg; and Italy, after founding a special ward in 1876, at
the establishment for relapsed prisoners at Aversa, has converted
the Ambrogiana establishment at Montelupo in Tuscany, into an
asylum for insane convicts, and for prisoners under observation as
being of unsound mind. The new Italian penal code, though not
openly recognising the foundation of asylums for criminals
acquitted on the ground of insanity, has, in its general spirit of
eclecticism, given judges the power of handing them over to the
competent authority when it would be dangerous to release them
(Art. 46). At the Montelupo Asylum criminals acquitted on the
ground of insanity are also detained, at first under observation,
then by a definite order from the president of the Tribunal, who
can revoke his order on the petition of the family, or of the
authorities.

The inquiry into existing legislation on insane criminals,
undertaken by the ``Societe Generale des prisons de
Paris,'' showed that in France, Germany, Austria-Hungary, Croatia,
Belgium, Portugal, and Sweden, the authors of crimes or offences
who are acquitted on the ground of insanity are withdrawn from all
control by the judicial authority, and entrusted to the more or
less regular and effectual control of the administrative
authority. In England, Holland, Denmark, Spain, and
Russia, on the contrary, the judicial authority is empowered and
even compelled to order the seclusion of these individuals in an
ordinary or a criminal lunatic asylum.


Of the objections raised against this form of social defence
against insane criminals, I pass over that of the cost, which is
considerable; for even from the financial point of view I believe
that the actual system, which gives no guarantee of security
against madmen with criminal tendencies, is more costly to the
administration, if only by reason of the damage which they cause.
I also pass over the other objection, based on the violent scenes
which are said to be inseparable from the association of such
prisoners; for experience has shown that forebodings are ill
founded in regard to criminal asylums where the inmates are
classified according to their tendencies, under the direction of a
staff with special knowledge, who are able to prevent such
outbreaks. In ordinary asylums, on the other hand, a few insane
criminals are sufficient to render the maintenance of order very
difficult, and their inevitable and frequent outbreaks have dire
effects on the other patients.

The most serious and repeated difficulties in regard to lunatic
asylums spring from the very principles of the defensive function
of society.

It is said in the first place that the author of a dangerous
action is either a madman or else a criminal. If he is a madman,
he has nothing to do with penal justice--so Fabret, Mendel, and
others have said; his action is not a crime, for he had no
control over himself, and he ought to go to an ordinary
asylum, special measures being taken for him, as for every other
dangerous madman. Or else he is a criminal, and then he has
nothing to do with a lunatic asylum, and he ought to go to prison.

But there is a fallacy in this dilemma, for it leaves out the
intermediate cases and types, where particular individuals are at
the same time mad and criminal. And even if it were a question of
madmen only, the logical consequence would not be to bar out
special asylums, for it seems clear that if ordinary madmen (not
criminals, that is, not the authors of dangerous actions) ought to
go to an ordinary asylum, criminal madmen, or madmen with a
tendency to commit dangerous or criminal actions, as well as those
who have committed them, ought to go to a special asylum for this
category of madmen. For, on the other hand, we constantly see
that administrative authorities which observe the same rules for
the seclusion of ordinary and criminal madmen do not prevent the
release of the latter, some time after the crime, when the
disturbance of mind and even the recollection of the deed are all
but effaced; and criminal madmen commit other violent or
outrageous excesses, very soon after they are left exposed to
their diseased tendencies. [21]



[21] M. Lunier, writing in 1881 of epileptics, and the method of
treatment and aid appropriate to them, says that of 33,000 known
epileptics in France, 5,200 only are in private or public asylums,
whilst 28,000 remain with their families. From these figures it
would appear very probable that these 28,000 epileptics left at
liberty commit crimes and offences.


It may be answered that it is sufficient to have special
wings in ordinary asylums, which would also get over the
repugnance of families against the association of their quiet and
harmless patients with murderous and outrageous madmen. But
experience has already proved that these special wards do not work
well, for it is too difficult with the same staff to apply such
varied treatment and discipline as are necessary for ordinary and
criminal lunatics.

Fabret says that ``a so-called criminal, when he is seen to be
mad, should cease to be regarded as a criminal, and ought purely
and simply to resume his ordinary rights. ''

But, in the first place, if a madman is distinguished from all
other inoffensive madmen by the grave fact of having killed, or
burned, or outraged, it is clear that he cannot ``purely and
simply'' return to the same kind of treatment which is given to
harmless lunatics.

The truth is that this argument applies to a large number of ideas
which science is continually weeding out, and which have proceeded
on the assumption that madness is an involuntary misfortune which
must be treated, and that crime is a voluntary fault which must be
chastised. It is evident on the other hand that crime as well as
folly, being the result of abnormal conditions of the individual,
and of the physical and social environment, is always a question
for social defence, whether it is or is not accompanied in the
criminal by a more or less manifest and clinical form of mental
malady.

The same reply holds good for the second objection to asylums for
criminal madmen, when it is said that a madman cannot, for
the sole reason that he has killed or stolen, be shut up
indefinitely, perhaps for ever, in an asylum.

Mancini, who was keeper of the seals, and at the same time a great
criminal pleader, aptly expressed the ideas of the classical
school when replying to an interpellation of Deputy Righi on the
foundation of criminal lunatic asylums:--``I could never
understand how the same court, which is obliged by law to acquit
upon a verdict of the jury that the accused is insane, and
therefore not responsible, could also decree the compulsory
seclusion in an asylum, for any period, of the same accused
person. . . . Is it because he has committed a crime? But that
is not true, for the man who did not know what he was doing, and
who for that reason has been declared innocent before the law, and
irresponsible, cannot have committed a crime. There is
consequently no legal reason why he should lose the exercise and
enjoyment of that liberty which is not denied to any other
unfortunate beings who are diseased like himself. ''

It would be impossible to put more clearly the pure classical
theory on crime and punishment; but perhaps it would be equally
impossible to show less solicitude for social defence against
criminal attacks. For it is certain that the mad murderer ``has
committed no crime'' from the ethical and legal point of view of
the classical school; but it is still more certain that there is a
dead man, and a family left behind who may be ruined by the deed,
and it is very probable that this homicide, ``innocent before the
law,'' will renew his outrage on other victims--and at any
rate they are innocent.

And as for the indefinite period of seclusion in an asylum, it is
well to remember, from the point of view of individual rights,
that the formula with which a mad criminal is committed to an
asylum ``during her Majesty's pleasure'' had its origin in
England, in the classic land of the habeas corpus--the sheet
anchor of the ordinary citizen. Again, it is easy to see that the
indefinite seclusion of mad criminals is rendered necessary by the
same reasons which create the fundamental rule for criminals of
every kind. It may therefore come to a question of allowing or
disallowing the general principles of the positive school. But it
cannot be denied that they are unassailable, both in theory and in
practice. Crime is a phenomenon as natural as madness--the
existence of society compels the organised community to defend
itself against every anti-social action of the individual--the
only difficulty is to adapt the form and duration of this self-
defence to the form and intensity (the motives, conditions, and
consequences) of the action. Indefinite seclusion, therefore, in
a special establishment is inevitable on account of the special
condition of these individuals.

The practical considerations of social defence are so strong that
the great majority of classical criminal experts now accept
criminal lunatic asylums, in spite of their manifest contradiction
of the formal theories of moral responsibility, on the strength of
which these asylums were, and still are, opposed by the
intransigents of the classical school. This is why the new
Italian penal code, in spite of its progressive aim, had
not the courage in 1889 to adopt them frankly; and in the
definitive text, as in the ministerial draft, it took refuge in an
eclectic arrangement which has already met with a crowd of
obstacles, due to the vagueness of the principles inspiring the
code.

These criminal lunatic asylums ought to be of two kinds, differing
in their discipline, one for the insane authors of serious and
dangerous crimes, such as homicide, incendiarism, rape, and the
like; and the other for slighter crimes, such as petty theft,
violent language, outrages on public decency, and the like. For
the latter, seclusion should be shorter than for the others. Thus
in England convicts are sent to the State Asylum at Broadmoor,
whilst minor offenders are sent to a county asylum.

Persons thus confined should be (1) prisoners acquitted on the
ground of insanity, or sentenced for a fixed period, at the
preliminary inquiry; (2) convicts who become insane during the
expiation of their sentence; (3) insane persons who commit crimes
in the ordinary asylums; (4) persons under observation for weak
intellect in special wards, who have been put on their trial, and
given grounds for suspecting madness.

At Broadmoor, on December 31, 1867, there were 389 male patients
and 126 female; and in 1883 there were 381 males and 132 females,
thus classified:--

Mad Criminals. Male. Female.
Murder . . . . . . . . . . . . . . . 155 . . . 85
Attempted murder. . . . . . . . . 111 . . . 18
Parricide. . . . . . . . . . . . . . . 7 . . . 6
Theft . . . . . . . . . . . . . . . 23 . . . 3


Mad Criminals. Male. Female.
Incendiarism . .