It is true that occasional offenders deserve consideration, from
the point of view of prevention in particular; but honest folk who
are injured by them deserve it still more.
the point of view of prevention in particular; but honest folk who
are injured by them deserve it still more.
Criminal Sociology by Enrico Ferri
The latter are incorrigible through
congenital tendency to degenerate, and the former are incorrigible
through acquired tendency; but they end in the same degree of
anti-sociality and brutalisation. There is, however, this
difference, that habitual offenders nearly always commit less
serious crimes, such as theft, swindling, forgery, indecent
assault, whilst the born criminals, though they may be petty
thieves, or not very formidable swindlers, are more frequently
murderers, footpads, guilty of arson, or the like. Thus the
discipline of their segregation must vary accordingly.
For occasional criminals, social defence must have a character of
prevention rather than of repression, so as to save them from
being driven, by a mistaken prison organisation, to become
recidivists, and therefore habitual and incorrigible criminals.
It is especially important in this category to discriminate
between the young and the adults, for with the former, far
more than with the latter, the preventive methods may have a
sensible effect in diminishing crime. But we must take care, in
place of the pedantic graduation of responsibility which satisfies
the penal codes, to substitute a physiological and psychical
treatment of children and young people, who are actual criminals
or framing for crime.
Beginning with the physical and moral treatment of foundling
children as one of the most effectual penal substitutes, and
advancing to reformatory constraint and penal sentences upon the
young, there is an entire system crying for radical reform, from
which imprisonment for young persons should always be excluded.
We must therefore abolish the so-called houses of correction; for,
taking no account of the absurd and dangerous confusion created by
the three classes of children committed for paternal correction,
for begging and vagrancy, and for offences, no good can ever come
of it, for the herding and crowding together are nowhere more
productive of fermentation and putrefaction than amongst the
young.
There is nothing for them but separate boarding-out with families
of honest country folk, or else agricultural colonies with a
discipline different from that of the colonies for adult
criminals, but still based on the rule of isolation by night, work
in the open air, and as little crowding as possible.
For adult occasional criminals it is unnecessary to insist any
further on the absurdity and danger of short terms of
imprisonment, with or without isolation in cells, which now
constitute the almost exclusive mode of repression. A few
days in prison, mostly in association with habitual criminals,
cannot exercise any deterrent influence, especially in the
grotesque minimum of one day, or three days, as provided by the
Dutch, Italian, and other codes. On the contrary, they are
attended by disastrous effects, by destroying the serious
character of justice, relieving prisoners of all fear of
punishment, and consequently driving them to relapse, under the
influence of the disgrace already suffered, and of the corrupting
and compromising association with habitual criminals in prison.
The results of these short terms, indeed, which impose about the
same restriction of liberty as an attack of indigestion, or a
heavy fall of snow, are so manifest that the objection to them is
now almost unanimous, though they still form the basis of the most
recent penal codes.
As to the substitution of other repressive methods in the many
cases of sentence for light offences, theorists and legislators
have proposed domiciliary arrest, sureties, judicial warnings,
compulsory work without imprisonment, conditional suspension of a
sentence or a punishment, qualified banishment. For the moment
there is a marked preference for conditional sentences.
In my opinion, however, none of these substitutes or short terms
of imprisonment can be applied as effectively or as generally as
is necessary for the large class of occasional offenders.
Domiciliary arrests, indeed, which the Italian penal code applies
only to women and minors for a first contravention of the
law, with detention in the house, cannot be made effective. They
would be useless for those already obliged to remain at home by
their daily occupations, and for the rich, who could have any form
of distraction in their own houses; and they would be injurious to
those who have to earn a living for themselves and their families
in workrooms, shops, offices, &c. Moreover, this domiciliary
detention would be very difficult in the great towns, where it
would probably require a sentinel for every condemned person.
Bail for good behaviour is too unequal in the case of the poor and
the rich, and therefore too rarely applicable to be any more than
an exceptional and accessory measure, taken in conjunction with
the payment of damages; and this even when it is given by
sureties.
Judicial warning, with or without security, which the new Italian
penal code has sought to revive, in spite of many years'
experience under the older codes, cannot be seriously treated.
Either the prisoner is an occasional offender, or an offender
through passion, having a sense of honour, in which case public
opinion is itself a sufficient lesson for him, without the need of
a little moral lecture from the judge; or else he has no such
moral sensibility, and then the warning is a mere useless
ceremony, without effect either on the criminal or on the public.
So true is this that judicial warning (a different thing from
police warning, which is another so-called preventive measure,
both ineffectual and injurious) is rarely applied by magistrates.
Compulsory work without imprisonment may be admitted, not as a
main punishment, but as a mode of enforcing strict reparation of
damage, which I still believe to be the only suitable measure for
occasional offenders, when the offence is slight.
The same must be said for qualified banishment (temporary removal
from the place where the crime was committed), which may be added
as a preventive measure, and as a satisfaction for the injured
party, in the same cases where the payment of damages is the
principal retribution.
There remains the conditional sentence. A judge may decide, in
the case of first offenders who appear to him to call for such
treatment, that the sentence or the execution of the sentence,
shall be suspended for a given period, after which, if the
offender has been of good behaviour, and has not committed another
offence, the sentence is effaced and the condemnation is regarded
as non-existent; whilst in the other case the sentence takes
effect, and the punishment is added to that of the new crime.
This conditional suspension, however, assumes two very different
forms.
At Boston, in the State of Massachusetts, from the year 1870 in
the case of minors, and from 1878 in the case of adults, judgment
is suspended without regard even to the gravity of the crime or to
the antecedents of the criminal; and this custom has applied to
the entire State from the year 1880. All that the judge does is
to fix the period of probation. There is a probation officer
whose business it is to keep his eye on the persons affected, and
who has extensive powers, including that of bringing them
up for sentence even for disorderly conduct, without waiting for
an actual relapse. This system has also been introduced into New
Zealand and Australia (1886).
In England, after the advocacy of the probation system by the
Howard Association, an Act was passed in 1887 ``to permit the
conditional Release of first Offenders in certain cases. '' This
law combines probation with sureties for good conduct. Judgment
is given, but sentence is not pronounced. The suspension is not
granted to any one who has previously committed an offence, or
whose first offence would be liable to a punishment exceeding two
years' imprisonment. There is no probation officer, for
supervision is replaced by personal or other sureties for good
behaviour.
On the continent of Europe another form has been adopted. There
is no supervision by a special officer, and no surety for good
behaviour; judgment is delivered and sentence pronounced; and the
suspension is not forfeited by disorderly conduct, but only by an
actual relapse.
This system, so far as the purpose was not effected by various
conditions as to the duration of punishment, which left room for
conditional sentences, as to the interval for taking cognisance of
relapse, and other details, was proposed in France (1884) by
Senator Berenger; but Belgium was the first country to adopt it
in the law of 1888 ``on conditional release and conditional
sentences;'' and France followed in 1891, with the law ``on the
modification and increase of punishments. ''
Before that time, at the Prison Congresses of London (1872) and
Rome (1885), there had been some discussion, without resolutions,
on the advisability of substituting for punishment with hard
labour either simple detention without labour or compulsory labour
without imprisonment, or removal from the place where the offence
was committed, or judicial admonition.
But the most noteworthy advocacy of conditional sentences, after
the action taken by the Howard Association in 1881, came from the
International Union of Penal Legislation, which at its Conference
at Berne in 1889 adopted a resolution in its favour, whilst
insisting, at the suggestion of M. Garofalo, ``on the necessity of
deciding its limitation according to local conditions, and to the
public opinion and moral characteristics of various nations. ''
The Prison Congress of St. Petersburg discussed the substitution
of judicial admonition or conditional sentences for short terms of
imprisonment; but no resolution could be arrived at on this
occasion, and the matter was postponed to the next international
Prison Congress (Paris, 1895).
In Austria and Germany, again, several Bills have been introduced,
dealing with conditional sentences.
There are statistics for Belgium on the operation of this system.
The law of 1888 requires the keeper of the seals to report
annually to Parliament; and that authority drew up two reports,
dated May 14, 1890, and July 7, 1891.
From the day when the law came into operation up to December 31,
1889, out of 61,787 sentences in the Correctional
Tribunals, 8,696 were conditional; and there were 192 relapses.
Out of 222,492 sentences in the Police Courts, 4,499 were
conditional, and there were 45 relapses.
These 13,195 conditional sentences included 8,485 for crimes and
offences under the penal code; 2,286 for breaches of police
regulations; 447 for breaches of communal and provincial
regulations; and 1,977 for contraventions of special laws.
The crimes and offences for which these sentences have been most
frequently pronounced are as follows:--
Correctional. Police.
Malicious Wounding . . . . . . . . . . . . . . . 3,339 . . . 491
Thefts, &c . . . . . . . . . . . . . . . . . . 1,803 . . . 206
Resistance to and attacks on Authorities 961 . . . 67
Destruction of Inclosures and Property 211 . . . 56
Swindling and Breach of Trust . . . . . . 125 . . . 5
Slander and Defamation . . . . . . . . . . . . 113 . . . 79
Immorality . . . . . . . . . . . . . . . . . . . . . 112 . . . 10
Offences below 100 were: Abusive language, 99; Indecent assaults,
59; Threats, 58; Forgery, 49; Adultery, 48; Adulteration of food,
44; Unlawful wounding, 45; Unlawful possession, 31; Unlawful
carrying and sale of arms, 30; Bankruptcy, 26; Accidental
homicide, 20.
In the year 1890, out of 41,330 sentences in the Correctional
Tribunals, whereof 36,660 were not over six months' imprisonment,
7,932 were conditional, and there were 223 relapses. Out of
121,461 in the Police Courts, 6,377 were conditional, and there
were 49 relapses.
The proportion for various offences was approximately the same as
in the previous year.
These figures, it is true, do not tell us much about the
effects of conditional sentences in Belgium, as we might expect
from the brevity of the experiment; so that the question still
remains in the theoretical phase.
The statistics of the Massachusetts probation system are not much
more instructive.
According to the decennial report (1879-88) of Mr. Savage,
probation officer at Boston, imprisonment was remitted in the
county of Suffolk (including Boston) to 322 persons in 1879 and to
880 in 1888; whilst the number officially recorded for the
following year was 994. In the course of ten years the probation
officer inquired into the cases of 27,052 persons liable to
supervision. Of these, 7,251 were put on probation, and 580 were
deprived of the benefit of the law.
The grounds on which the probation system was applied in
Massachusetts were strikingly different from the circumstances
under which conditional sentences were recorded in Belgium. Thus
in Boston there were put on probation, between 1879 and 1888,
3,161 persons charged with drunkenness for the first time, 222
charged with habitual drunkenness, 211 with drunkenness for the
third time, 958 with theft, 764 with solicitation, 470 with
inflicting bodily harm, 274 with disorderly conduct and idleness,
240 with violation of domicile, especially with intrusion in
business premises.
Thus, apart from the difference of penal legislation and social
life in the two countries, the Boston system is applied mainly to
drunkards, who are not true criminals by the mere fact of
intoxication.
As for the statistics of ascertained relapse, which in Boston
reached 64 out of 1,125 (6 per cent. ) in 1889, I think they should
be received with caution. In the case of every new penal or
penitentiary system or measure, we never fail to receive more or
less wonderful figures on the results obtained; but the common
fate of all these splendid results has always been that they
dwindle down, even if they do not turn into a negative quantity,
so as to indicate the necessity of other more practical and
serviceable measures. The reason is, and will continue to be the
same, namely, that legislators, judges, and prison warders have no
adequate knowledge of criminals, and their activity is anything
but harmonious. This accounts for the superficial character, if
nothing more, of the measures which are taken, and which apply far
more to the crime than to the criminal, without so much as
touching the true and deep-seated roots of crime. Hence also the
inevitable disillusion, almost before the new device is a month
old.
I by no means admit the two principal objections of MM.
Kirchenheim and Wach, that the conditional sentence is repugnant
to the principle of absolute justice, according to which every
offence should be visited by a corresponding punishment, and that
short terms of imprisonment, if they have not always produced a
good result, ought not to be abolished, but only applied in a more
suitable and efficacious manner.
The first objection will not weigh much with those who are guided
by the principles and method of the positive school. As M.
Gautier says, it is absolutely useless to dispute about
consequences when we start from premisses so opposed to each other
as retributive justice, according to which every fault demands a
proportional punishment--``fiat justitia pereat mundus''--and
social defence, according to which a justice without social
advantage is an unjust justice, afflicted with metaphysical
degeneracy.
The second objection appears to me to have no better foundation,
for the disadvantages of punishments by short terms of
imprisonment are organic and inevitable defects. There is no
chance of their practical amelioration, for they have all been
tried, from the system of association to that of absolute
isolation, from the most inflexible vigour to the mildest
treatment. Amelioration of short-term punishments can only have
an indirect influence by way of palliation; but it is the actual
imprisonment for a short term which is trifling and unavailing.
At the same time, and not to mention other objections on points of
detail, specially applicable to the form given to conditional
sentences on the continent of Europe, as compared with the
American system, (which is certainly better, since it does not
leave the offender to himself, and is not restricted to the simple
legal relapse), I am not enthusiastically in favour of the
conditional sentence. And my lack of enthusiasm, in spite of the
first impression, which was decidedly favourable, is based on
different grounds from those hitherto stated by the opponents of
this reform.
In the earliest edition of this work I maintained that repression
ought to be mild in form for occasional criminals, and
progressively severe for recidivists and habitual evildoers, until
it reached perpetual segregation. The Italian proverb, that ``the
first fault is pardoned and the second whipped,'' is an
unconscious confirmation of the popular opinion. And from this
point of view the conditional sentence, if combined as in the
French law with progressive severity of repression for
recidivists, is sufficiently attractive in the first instance.
But the conditional sentence, to consider it for a moment as it
has hitherto been propounded and carried out, has two
characteristic defects, in common with the actual penal system, of
which its advocates, for the most part balancing between the
classical and positive school, cannot get rid.
In the first place, whilst the classical school has fixed its
attention on crime, and the positive school studies the criminal,
especially in regard to his biological and psychological
character, the advocates of the conditional sentence (and of the
laws which have so far brought it into operation) oscillate
between the two standpoints, considering the criminal, no doubt,
rather than the crime, but only the average and abstract criminal,
not the living and palpitating criminal, as he is to be found in
his several categories. In proof of this it is enough to observe
that the ninth article of the Belgian law admits the conditional
sentence, so far as punishment is concerned, when this punishment
does not exceed six months, EVEN IF THE PERIOD IS MADE UP BY THE
CUMULATION OF TWO OR MORE! In other words, the conditional
sentence is allowed in the case of a criminal who has
committed several offences--which substantially (except in
the few cases of connected offences due to the same action, or
arising out of the same occasion) is a mere case of relapse, and
therefore proves in the majority of cases that the law is not
dealing with true occasional criminals; for these, as a rule, like
criminals of passion, only commit a single crime or offence.
The two fundamental conditions of the conditional sentence in
Europe (a slight infraction and a nonrelapsed criminal) do not,
therefore, afford a complete guarantee of the utility of its
application.
It is true that this system tends to fix the attention of the
judge on the personal conditions of the prisoner, requiring him to
decide if the conditional sentence is suitable to the particular
occasion, having regard to the special circumstances of the action
and the individual, apart from the legal limitations of the
offence and of the punishment.
But we know that the crowding of the prisons with persons
condemned to short terms of imprisonment is attended by a grievous
crowding in the courts of prisoners accused of slight offences and
contraventions. Thus it is inevitable that the judges, even apart
from their ignorance of the biological and psychological
characters of the offenders, being compelled to decide ten or
twenty cases every day, cannot fix their attention on the
procession of figures which files past the magic lantern of the
courts, but simply leave them with a ticket bearing the number of
the article which applies, not to THEM, but to their particular
infraction of the law. Thus the judges will come to
pronouncing the conditional sentence almost mechanically,
just as they have come to give the benefit of attenuating
circumstances by force of habit This device also was introduced in
France in 1832, in order to ``individualise punishment''--that is
to say, to compel the judge to apply his sentence rather to the
criminal than to the crime.
So long as penal procedure is not radically reformed, as we have
proposed, in such a manner that the inquiry, the discussion, the
decision upon the evidence, which are the only proper elements of
penal justice, aim at and lead up to the determination of a
prisoner's biological and psychological type, it will be humanly
impossible for the practical application of these judicial
measures to overcome the mechanical impersonality of justice,
which applies rather to the crime than to the criminal.
Hence the conditional sentence, though it was evolved by the abuse
and disastrous effects of short terms of imprisonment, and in
spite of its generating principle that ``the first fault is
pardoned and the second whipped,'' has to-day only the character
of an eclectic graft on the old classic stock of penal law and
procedure. As such, notwithstanding its attractive features (for
it indicates a step in advance towards the positive system of
social defence, which desires to see the application of collective
defence to the individual's power of offence), it seems to me to
be destined, not long after its earliest application, to deceive
the anticipations of happy and beneficent results, such as its
advocates entertain.
Moreover, the conditional sentence, precisely because it is
a graft on the old classic stock of penal justice, has another
very serious defect, inasmuch as it overlooks the victims of the
offence.
Its advocates, in fact, continue to maintain that reparation of
damage is a private concern, for which they benevolently recommend
a strict remedy, but which they nevertheless, in practice,
entirely overlook.
The offender who is conditionally sentenced is, therefore, to
secure a suspension of punishment--which, indeed, it is as well to
remember, he also secures, often enough, by a legal limitation,
or, as in Italy, by the remission of punishments under three
months, accorded whenever (as is generally the case) there is a
petition for pardon. But is there any one who gives a thought to
the victims?
From this point of view it may even be said that the conditional
sentence makes things worse than before; for the victims are not
to have so much as the satisfaction of seeing punishment inflicted
on those who have injured them, in cases of assault, theft,
swindling, and the like. And it is useless to make the platonic
remark, as M. Fayer has done, that punishment is punishment even
when conditional, and involves the censure of the public
authority, and holds in reserve a punishment for relapse, and
hangs over the head of the offender until his term of probation
has expired.
All this is pretty enough--except the relapse, which implies the
poor consolation of a repetition of the offence, which would be no
great satisfaction for the victims of the first. But it is all
hypothetical and theoretical. The essential thing, so far
as the victims are concerned, is that the offender goes
unpunished.
It is true that occasional offenders deserve consideration, from
the point of view of prevention in particular; but honest folk who
are injured by them deserve it still more.
I do not therefore agree with Garofalo, who proposed at Brussels
that the conditional sentence should be subject to the consent of
the injured party; but I think that it ought not to be permitted
until there has been an indemnification for the victims of the
offence, or at least a guarantee, either by the offender, or
directly by the State.
In short, for occasional criminals who commit slight offences, in
circumstances which show that they are not of a dangerous type, I
say, as I have said already, that reparation of the damage
inflicted would suffice as a defensive measure, without a
conditional sentence of imprisonment
As to the occasional criminals who commit serious offences, for
which reparation alone would not be sufficient, temporary removal
from the scene of the crime should be added in the less serious
cases, whilst in the cases of greater gravity, owing to material
and personal considerations, there should be indefinite
segregation in an agricultural colony, with lighter work and
milder discipline than those prescribed in colonies for born
criminals and recidivists.
The last category is that of criminals through an impulse of
passion, not anti-social but susceptible of excuse, such as love,
honour, and the like.
For these individuals all punishment is clearly useless, at any
rate as a psychological counteraction of crime, for the very
conditions of the psychological convulsion which caused them to
offend precludes any deterrent influence in a legal menace.
I therefore believe that in typical cases of criminals of passion,
where there is no clear demand for mental treatment in a criminal
lunatic asylum, imprisonment is of no use whatever. Strict
reparation of damage will suffice to punish them, whilst they are
punished already by genuine and sincere remorse immediately after
the criminal explosion of their legitimate passion. Temporary
removal from the scene of their crime and from the residence of
the victim's family might be superadded.
Nevertheless it must not be forgotten that I say this in
connection with criminals in whom the passionate impulse is really
exceptional, and who present the physiological and psychical
features of the genuine criminal of passion which I enumerated in
the first chapter.
I come to a different conclusion in the case of criminals who have
merely been provoked, who do not completely present these
features, who are actuated by a combination of social and
excusable passion with an anti-social passion, such as hate,
vengeance, anger, ambition, &c. Of such a kind are murderers
carried away by anger just in itself, by blood-feuds, or desire to
avenge the honour of their family, by vindication of personal
honour, by grave suspicion of adultery, &c. ; persons guilty of
malicious wounding, disfigurement through erotic motives, and the
like. These may be classed as occasional criminals, and
treated accordingly.
Such, then, in general outline, is the positive system of social,
preventive, and repressive defence against crimes and criminals,
in accordance with the inferences from a scientific study of crime
as a natural and social phenomenon.
It is a defensive system which, in the nature of things, must of
necessity be substituted for the criminal and penitentiary systems
of the classical school, so soon as the daily experience of every
nation shall have established the conviction, which at this moment
is more or less profound, but merely of a general character, that
these systems are henceforth incompatible with the needs of
society, not only by their crude pedantry, but also because their
consequences are becoming daily more disastrous.
congenital tendency to degenerate, and the former are incorrigible
through acquired tendency; but they end in the same degree of
anti-sociality and brutalisation. There is, however, this
difference, that habitual offenders nearly always commit less
serious crimes, such as theft, swindling, forgery, indecent
assault, whilst the born criminals, though they may be petty
thieves, or not very formidable swindlers, are more frequently
murderers, footpads, guilty of arson, or the like. Thus the
discipline of their segregation must vary accordingly.
For occasional criminals, social defence must have a character of
prevention rather than of repression, so as to save them from
being driven, by a mistaken prison organisation, to become
recidivists, and therefore habitual and incorrigible criminals.
It is especially important in this category to discriminate
between the young and the adults, for with the former, far
more than with the latter, the preventive methods may have a
sensible effect in diminishing crime. But we must take care, in
place of the pedantic graduation of responsibility which satisfies
the penal codes, to substitute a physiological and psychical
treatment of children and young people, who are actual criminals
or framing for crime.
Beginning with the physical and moral treatment of foundling
children as one of the most effectual penal substitutes, and
advancing to reformatory constraint and penal sentences upon the
young, there is an entire system crying for radical reform, from
which imprisonment for young persons should always be excluded.
We must therefore abolish the so-called houses of correction; for,
taking no account of the absurd and dangerous confusion created by
the three classes of children committed for paternal correction,
for begging and vagrancy, and for offences, no good can ever come
of it, for the herding and crowding together are nowhere more
productive of fermentation and putrefaction than amongst the
young.
There is nothing for them but separate boarding-out with families
of honest country folk, or else agricultural colonies with a
discipline different from that of the colonies for adult
criminals, but still based on the rule of isolation by night, work
in the open air, and as little crowding as possible.
For adult occasional criminals it is unnecessary to insist any
further on the absurdity and danger of short terms of
imprisonment, with or without isolation in cells, which now
constitute the almost exclusive mode of repression. A few
days in prison, mostly in association with habitual criminals,
cannot exercise any deterrent influence, especially in the
grotesque minimum of one day, or three days, as provided by the
Dutch, Italian, and other codes. On the contrary, they are
attended by disastrous effects, by destroying the serious
character of justice, relieving prisoners of all fear of
punishment, and consequently driving them to relapse, under the
influence of the disgrace already suffered, and of the corrupting
and compromising association with habitual criminals in prison.
The results of these short terms, indeed, which impose about the
same restriction of liberty as an attack of indigestion, or a
heavy fall of snow, are so manifest that the objection to them is
now almost unanimous, though they still form the basis of the most
recent penal codes.
As to the substitution of other repressive methods in the many
cases of sentence for light offences, theorists and legislators
have proposed domiciliary arrest, sureties, judicial warnings,
compulsory work without imprisonment, conditional suspension of a
sentence or a punishment, qualified banishment. For the moment
there is a marked preference for conditional sentences.
In my opinion, however, none of these substitutes or short terms
of imprisonment can be applied as effectively or as generally as
is necessary for the large class of occasional offenders.
Domiciliary arrests, indeed, which the Italian penal code applies
only to women and minors for a first contravention of the
law, with detention in the house, cannot be made effective. They
would be useless for those already obliged to remain at home by
their daily occupations, and for the rich, who could have any form
of distraction in their own houses; and they would be injurious to
those who have to earn a living for themselves and their families
in workrooms, shops, offices, &c. Moreover, this domiciliary
detention would be very difficult in the great towns, where it
would probably require a sentinel for every condemned person.
Bail for good behaviour is too unequal in the case of the poor and
the rich, and therefore too rarely applicable to be any more than
an exceptional and accessory measure, taken in conjunction with
the payment of damages; and this even when it is given by
sureties.
Judicial warning, with or without security, which the new Italian
penal code has sought to revive, in spite of many years'
experience under the older codes, cannot be seriously treated.
Either the prisoner is an occasional offender, or an offender
through passion, having a sense of honour, in which case public
opinion is itself a sufficient lesson for him, without the need of
a little moral lecture from the judge; or else he has no such
moral sensibility, and then the warning is a mere useless
ceremony, without effect either on the criminal or on the public.
So true is this that judicial warning (a different thing from
police warning, which is another so-called preventive measure,
both ineffectual and injurious) is rarely applied by magistrates.
Compulsory work without imprisonment may be admitted, not as a
main punishment, but as a mode of enforcing strict reparation of
damage, which I still believe to be the only suitable measure for
occasional offenders, when the offence is slight.
The same must be said for qualified banishment (temporary removal
from the place where the crime was committed), which may be added
as a preventive measure, and as a satisfaction for the injured
party, in the same cases where the payment of damages is the
principal retribution.
There remains the conditional sentence. A judge may decide, in
the case of first offenders who appear to him to call for such
treatment, that the sentence or the execution of the sentence,
shall be suspended for a given period, after which, if the
offender has been of good behaviour, and has not committed another
offence, the sentence is effaced and the condemnation is regarded
as non-existent; whilst in the other case the sentence takes
effect, and the punishment is added to that of the new crime.
This conditional suspension, however, assumes two very different
forms.
At Boston, in the State of Massachusetts, from the year 1870 in
the case of minors, and from 1878 in the case of adults, judgment
is suspended without regard even to the gravity of the crime or to
the antecedents of the criminal; and this custom has applied to
the entire State from the year 1880. All that the judge does is
to fix the period of probation. There is a probation officer
whose business it is to keep his eye on the persons affected, and
who has extensive powers, including that of bringing them
up for sentence even for disorderly conduct, without waiting for
an actual relapse. This system has also been introduced into New
Zealand and Australia (1886).
In England, after the advocacy of the probation system by the
Howard Association, an Act was passed in 1887 ``to permit the
conditional Release of first Offenders in certain cases. '' This
law combines probation with sureties for good conduct. Judgment
is given, but sentence is not pronounced. The suspension is not
granted to any one who has previously committed an offence, or
whose first offence would be liable to a punishment exceeding two
years' imprisonment. There is no probation officer, for
supervision is replaced by personal or other sureties for good
behaviour.
On the continent of Europe another form has been adopted. There
is no supervision by a special officer, and no surety for good
behaviour; judgment is delivered and sentence pronounced; and the
suspension is not forfeited by disorderly conduct, but only by an
actual relapse.
This system, so far as the purpose was not effected by various
conditions as to the duration of punishment, which left room for
conditional sentences, as to the interval for taking cognisance of
relapse, and other details, was proposed in France (1884) by
Senator Berenger; but Belgium was the first country to adopt it
in the law of 1888 ``on conditional release and conditional
sentences;'' and France followed in 1891, with the law ``on the
modification and increase of punishments. ''
Before that time, at the Prison Congresses of London (1872) and
Rome (1885), there had been some discussion, without resolutions,
on the advisability of substituting for punishment with hard
labour either simple detention without labour or compulsory labour
without imprisonment, or removal from the place where the offence
was committed, or judicial admonition.
But the most noteworthy advocacy of conditional sentences, after
the action taken by the Howard Association in 1881, came from the
International Union of Penal Legislation, which at its Conference
at Berne in 1889 adopted a resolution in its favour, whilst
insisting, at the suggestion of M. Garofalo, ``on the necessity of
deciding its limitation according to local conditions, and to the
public opinion and moral characteristics of various nations. ''
The Prison Congress of St. Petersburg discussed the substitution
of judicial admonition or conditional sentences for short terms of
imprisonment; but no resolution could be arrived at on this
occasion, and the matter was postponed to the next international
Prison Congress (Paris, 1895).
In Austria and Germany, again, several Bills have been introduced,
dealing with conditional sentences.
There are statistics for Belgium on the operation of this system.
The law of 1888 requires the keeper of the seals to report
annually to Parliament; and that authority drew up two reports,
dated May 14, 1890, and July 7, 1891.
From the day when the law came into operation up to December 31,
1889, out of 61,787 sentences in the Correctional
Tribunals, 8,696 were conditional; and there were 192 relapses.
Out of 222,492 sentences in the Police Courts, 4,499 were
conditional, and there were 45 relapses.
These 13,195 conditional sentences included 8,485 for crimes and
offences under the penal code; 2,286 for breaches of police
regulations; 447 for breaches of communal and provincial
regulations; and 1,977 for contraventions of special laws.
The crimes and offences for which these sentences have been most
frequently pronounced are as follows:--
Correctional. Police.
Malicious Wounding . . . . . . . . . . . . . . . 3,339 . . . 491
Thefts, &c . . . . . . . . . . . . . . . . . . 1,803 . . . 206
Resistance to and attacks on Authorities 961 . . . 67
Destruction of Inclosures and Property 211 . . . 56
Swindling and Breach of Trust . . . . . . 125 . . . 5
Slander and Defamation . . . . . . . . . . . . 113 . . . 79
Immorality . . . . . . . . . . . . . . . . . . . . . 112 . . . 10
Offences below 100 were: Abusive language, 99; Indecent assaults,
59; Threats, 58; Forgery, 49; Adultery, 48; Adulteration of food,
44; Unlawful wounding, 45; Unlawful possession, 31; Unlawful
carrying and sale of arms, 30; Bankruptcy, 26; Accidental
homicide, 20.
In the year 1890, out of 41,330 sentences in the Correctional
Tribunals, whereof 36,660 were not over six months' imprisonment,
7,932 were conditional, and there were 223 relapses. Out of
121,461 in the Police Courts, 6,377 were conditional, and there
were 49 relapses.
The proportion for various offences was approximately the same as
in the previous year.
These figures, it is true, do not tell us much about the
effects of conditional sentences in Belgium, as we might expect
from the brevity of the experiment; so that the question still
remains in the theoretical phase.
The statistics of the Massachusetts probation system are not much
more instructive.
According to the decennial report (1879-88) of Mr. Savage,
probation officer at Boston, imprisonment was remitted in the
county of Suffolk (including Boston) to 322 persons in 1879 and to
880 in 1888; whilst the number officially recorded for the
following year was 994. In the course of ten years the probation
officer inquired into the cases of 27,052 persons liable to
supervision. Of these, 7,251 were put on probation, and 580 were
deprived of the benefit of the law.
The grounds on which the probation system was applied in
Massachusetts were strikingly different from the circumstances
under which conditional sentences were recorded in Belgium. Thus
in Boston there were put on probation, between 1879 and 1888,
3,161 persons charged with drunkenness for the first time, 222
charged with habitual drunkenness, 211 with drunkenness for the
third time, 958 with theft, 764 with solicitation, 470 with
inflicting bodily harm, 274 with disorderly conduct and idleness,
240 with violation of domicile, especially with intrusion in
business premises.
Thus, apart from the difference of penal legislation and social
life in the two countries, the Boston system is applied mainly to
drunkards, who are not true criminals by the mere fact of
intoxication.
As for the statistics of ascertained relapse, which in Boston
reached 64 out of 1,125 (6 per cent. ) in 1889, I think they should
be received with caution. In the case of every new penal or
penitentiary system or measure, we never fail to receive more or
less wonderful figures on the results obtained; but the common
fate of all these splendid results has always been that they
dwindle down, even if they do not turn into a negative quantity,
so as to indicate the necessity of other more practical and
serviceable measures. The reason is, and will continue to be the
same, namely, that legislators, judges, and prison warders have no
adequate knowledge of criminals, and their activity is anything
but harmonious. This accounts for the superficial character, if
nothing more, of the measures which are taken, and which apply far
more to the crime than to the criminal, without so much as
touching the true and deep-seated roots of crime. Hence also the
inevitable disillusion, almost before the new device is a month
old.
I by no means admit the two principal objections of MM.
Kirchenheim and Wach, that the conditional sentence is repugnant
to the principle of absolute justice, according to which every
offence should be visited by a corresponding punishment, and that
short terms of imprisonment, if they have not always produced a
good result, ought not to be abolished, but only applied in a more
suitable and efficacious manner.
The first objection will not weigh much with those who are guided
by the principles and method of the positive school. As M.
Gautier says, it is absolutely useless to dispute about
consequences when we start from premisses so opposed to each other
as retributive justice, according to which every fault demands a
proportional punishment--``fiat justitia pereat mundus''--and
social defence, according to which a justice without social
advantage is an unjust justice, afflicted with metaphysical
degeneracy.
The second objection appears to me to have no better foundation,
for the disadvantages of punishments by short terms of
imprisonment are organic and inevitable defects. There is no
chance of their practical amelioration, for they have all been
tried, from the system of association to that of absolute
isolation, from the most inflexible vigour to the mildest
treatment. Amelioration of short-term punishments can only have
an indirect influence by way of palliation; but it is the actual
imprisonment for a short term which is trifling and unavailing.
At the same time, and not to mention other objections on points of
detail, specially applicable to the form given to conditional
sentences on the continent of Europe, as compared with the
American system, (which is certainly better, since it does not
leave the offender to himself, and is not restricted to the simple
legal relapse), I am not enthusiastically in favour of the
conditional sentence. And my lack of enthusiasm, in spite of the
first impression, which was decidedly favourable, is based on
different grounds from those hitherto stated by the opponents of
this reform.
In the earliest edition of this work I maintained that repression
ought to be mild in form for occasional criminals, and
progressively severe for recidivists and habitual evildoers, until
it reached perpetual segregation. The Italian proverb, that ``the
first fault is pardoned and the second whipped,'' is an
unconscious confirmation of the popular opinion. And from this
point of view the conditional sentence, if combined as in the
French law with progressive severity of repression for
recidivists, is sufficiently attractive in the first instance.
But the conditional sentence, to consider it for a moment as it
has hitherto been propounded and carried out, has two
characteristic defects, in common with the actual penal system, of
which its advocates, for the most part balancing between the
classical and positive school, cannot get rid.
In the first place, whilst the classical school has fixed its
attention on crime, and the positive school studies the criminal,
especially in regard to his biological and psychological
character, the advocates of the conditional sentence (and of the
laws which have so far brought it into operation) oscillate
between the two standpoints, considering the criminal, no doubt,
rather than the crime, but only the average and abstract criminal,
not the living and palpitating criminal, as he is to be found in
his several categories. In proof of this it is enough to observe
that the ninth article of the Belgian law admits the conditional
sentence, so far as punishment is concerned, when this punishment
does not exceed six months, EVEN IF THE PERIOD IS MADE UP BY THE
CUMULATION OF TWO OR MORE! In other words, the conditional
sentence is allowed in the case of a criminal who has
committed several offences--which substantially (except in
the few cases of connected offences due to the same action, or
arising out of the same occasion) is a mere case of relapse, and
therefore proves in the majority of cases that the law is not
dealing with true occasional criminals; for these, as a rule, like
criminals of passion, only commit a single crime or offence.
The two fundamental conditions of the conditional sentence in
Europe (a slight infraction and a nonrelapsed criminal) do not,
therefore, afford a complete guarantee of the utility of its
application.
It is true that this system tends to fix the attention of the
judge on the personal conditions of the prisoner, requiring him to
decide if the conditional sentence is suitable to the particular
occasion, having regard to the special circumstances of the action
and the individual, apart from the legal limitations of the
offence and of the punishment.
But we know that the crowding of the prisons with persons
condemned to short terms of imprisonment is attended by a grievous
crowding in the courts of prisoners accused of slight offences and
contraventions. Thus it is inevitable that the judges, even apart
from their ignorance of the biological and psychological
characters of the offenders, being compelled to decide ten or
twenty cases every day, cannot fix their attention on the
procession of figures which files past the magic lantern of the
courts, but simply leave them with a ticket bearing the number of
the article which applies, not to THEM, but to their particular
infraction of the law. Thus the judges will come to
pronouncing the conditional sentence almost mechanically,
just as they have come to give the benefit of attenuating
circumstances by force of habit This device also was introduced in
France in 1832, in order to ``individualise punishment''--that is
to say, to compel the judge to apply his sentence rather to the
criminal than to the crime.
So long as penal procedure is not radically reformed, as we have
proposed, in such a manner that the inquiry, the discussion, the
decision upon the evidence, which are the only proper elements of
penal justice, aim at and lead up to the determination of a
prisoner's biological and psychological type, it will be humanly
impossible for the practical application of these judicial
measures to overcome the mechanical impersonality of justice,
which applies rather to the crime than to the criminal.
Hence the conditional sentence, though it was evolved by the abuse
and disastrous effects of short terms of imprisonment, and in
spite of its generating principle that ``the first fault is
pardoned and the second whipped,'' has to-day only the character
of an eclectic graft on the old classic stock of penal law and
procedure. As such, notwithstanding its attractive features (for
it indicates a step in advance towards the positive system of
social defence, which desires to see the application of collective
defence to the individual's power of offence), it seems to me to
be destined, not long after its earliest application, to deceive
the anticipations of happy and beneficent results, such as its
advocates entertain.
Moreover, the conditional sentence, precisely because it is
a graft on the old classic stock of penal justice, has another
very serious defect, inasmuch as it overlooks the victims of the
offence.
Its advocates, in fact, continue to maintain that reparation of
damage is a private concern, for which they benevolently recommend
a strict remedy, but which they nevertheless, in practice,
entirely overlook.
The offender who is conditionally sentenced is, therefore, to
secure a suspension of punishment--which, indeed, it is as well to
remember, he also secures, often enough, by a legal limitation,
or, as in Italy, by the remission of punishments under three
months, accorded whenever (as is generally the case) there is a
petition for pardon. But is there any one who gives a thought to
the victims?
From this point of view it may even be said that the conditional
sentence makes things worse than before; for the victims are not
to have so much as the satisfaction of seeing punishment inflicted
on those who have injured them, in cases of assault, theft,
swindling, and the like. And it is useless to make the platonic
remark, as M. Fayer has done, that punishment is punishment even
when conditional, and involves the censure of the public
authority, and holds in reserve a punishment for relapse, and
hangs over the head of the offender until his term of probation
has expired.
All this is pretty enough--except the relapse, which implies the
poor consolation of a repetition of the offence, which would be no
great satisfaction for the victims of the first. But it is all
hypothetical and theoretical. The essential thing, so far
as the victims are concerned, is that the offender goes
unpunished.
It is true that occasional offenders deserve consideration, from
the point of view of prevention in particular; but honest folk who
are injured by them deserve it still more.
I do not therefore agree with Garofalo, who proposed at Brussels
that the conditional sentence should be subject to the consent of
the injured party; but I think that it ought not to be permitted
until there has been an indemnification for the victims of the
offence, or at least a guarantee, either by the offender, or
directly by the State.
In short, for occasional criminals who commit slight offences, in
circumstances which show that they are not of a dangerous type, I
say, as I have said already, that reparation of the damage
inflicted would suffice as a defensive measure, without a
conditional sentence of imprisonment
As to the occasional criminals who commit serious offences, for
which reparation alone would not be sufficient, temporary removal
from the scene of the crime should be added in the less serious
cases, whilst in the cases of greater gravity, owing to material
and personal considerations, there should be indefinite
segregation in an agricultural colony, with lighter work and
milder discipline than those prescribed in colonies for born
criminals and recidivists.
The last category is that of criminals through an impulse of
passion, not anti-social but susceptible of excuse, such as love,
honour, and the like.
For these individuals all punishment is clearly useless, at any
rate as a psychological counteraction of crime, for the very
conditions of the psychological convulsion which caused them to
offend precludes any deterrent influence in a legal menace.
I therefore believe that in typical cases of criminals of passion,
where there is no clear demand for mental treatment in a criminal
lunatic asylum, imprisonment is of no use whatever. Strict
reparation of damage will suffice to punish them, whilst they are
punished already by genuine and sincere remorse immediately after
the criminal explosion of their legitimate passion. Temporary
removal from the scene of their crime and from the residence of
the victim's family might be superadded.
Nevertheless it must not be forgotten that I say this in
connection with criminals in whom the passionate impulse is really
exceptional, and who present the physiological and psychical
features of the genuine criminal of passion which I enumerated in
the first chapter.
I come to a different conclusion in the case of criminals who have
merely been provoked, who do not completely present these
features, who are actuated by a combination of social and
excusable passion with an anti-social passion, such as hate,
vengeance, anger, ambition, &c. Of such a kind are murderers
carried away by anger just in itself, by blood-feuds, or desire to
avenge the honour of their family, by vindication of personal
honour, by grave suspicion of adultery, &c. ; persons guilty of
malicious wounding, disfigurement through erotic motives, and the
like. These may be classed as occasional criminals, and
treated accordingly.
Such, then, in general outline, is the positive system of social,
preventive, and repressive defence against crimes and criminals,
in accordance with the inferences from a scientific study of crime
as a natural and social phenomenon.
It is a defensive system which, in the nature of things, must of
necessity be substituted for the criminal and penitentiary systems
of the classical school, so soon as the daily experience of every
nation shall have established the conviction, which at this moment
is more or less profound, but merely of a general character, that
these systems are henceforth incompatible with the needs of
society, not only by their crude pedantry, but also because their
consequences are becoming daily more disastrous.
