There are
statistics
for Belgium on the operation of this system.
Criminal Sociology by Enrico Ferri
For when it is perpetual, with
very faint chances of return, it is the best mode of ridding
society of its most injurious factors, without our being compelled
to keep them in those compulsory human hives which are known as
cellular prisons.
But again, there is the question of simple transportation, first
put into practice by England, which consists of planting convicts
on an island or desert continent, with the opportunity of living
by labour, or else of letting them loose in a savage country,
where the convicts, who in civilised countries are themselves half
savage, would represent a partial civilisation, and, from being
highwaymen and murderers, might become military leaders in
countries where, at any rate, the revival of their criminal
tendencies would meet with an immediate and energetic resistance,
in place of the slow machinery of our criminal trials.
For Italy, however, the question presents itself in a special
form; for there a sort of internal deportation, in the lands which
are not tilled on account of the malaria, would be far more
serviceable. If the dispersion of this malaria demands a human
hecatomb, it would evidently be better to sacrifice criminals than
honest husbandmen. Transportation across the sea was very
difficult for Italy a few years ago, especially in view of the
lack of colonies; for then there was always the obstacle of which
Franklin spoke in reference to transported English convicts, in
his well-known retort: ``What would you say if we were to
transport our rattlesnakes to England? '' But since Italy has had
her colony of Erythrea the idea of transportation has been taken
up again. In May, 1890, I brought forward a resolution in
Parliament in favour of an experimental penal colony in our
African dependencies. The proposal found many supporters, in
spite of the opposition of the keeper of the seals, who forgot
that he had written in his report on the draft penal code
that prisoners might also be detained in the colonies. Soon
afterwards the proposal was renewed by Deputy De Zerbi, and
accepted by M. Beltrani Scalia, director-general of prisons.
In a similar manner M. Prins declares himself in favour of
transportation for Belgium, since the constitution of the Congo
State.
But it is my matured opinion that transportation ought not to be
an end in itself. The penal colony for adults ought to be a
pioneer of the free agricultural colony. The problem of a penal
colony in our African possessions cannot, therefore, be solved in
advance of two other questions.
Before all, we must see whether these possessions offer suitable
districts for agricultural colonisation. And secondly, we must
consider whether convicts would not cost less to transport into
districts nearer home which need to be cleared, a plan which would
also prevent their going over to the enemy, becoming leaders or
guides of the barbarous tribes which are at war with us.
In any case, whether we decide on transportation to the interior
or beyond the seas, for born and habitual criminals, there is
still the question as to the form of seclusion.
In this connection the idea has been suggested of ``establishments
for incorrigibles,'' or hardened criminals, wherein should be
confined for life, or (the same thing in this case) for an
indefinite period, born criminals who have committed serious
crimes, habitual criminals, and confirmed recidivists.
The congenital character and hereditary transmission of criminal
tendencies in these individuals fully justify the words of
Quetelet, that ``moral diseases are like physical diseases: they
are contagious, or epidemic, or hereditary. Vice is transmitted
in some families in the same way as scrofula or consumption. The
greater number of crimes come from a comparatively few families,
which need a special supervision, an isolation like that which we
impose on sick persons suspected of carrying the germs of
infection. '' So Aristotle speaks of a man who, being accused of
beating his father, answered: ``My father beat my grandfather,
who used to beat his father cruelly; and you see my son--before he
is grown up he will fly into passions and beat me. '' And Plutarch
added to this: ``The sons of vicious and corrupt men reproduce
the very nature of their parents. ''
This is the explanation of Plato's idea, who, ``admitting the
principle that children ought not to suffer for the crimes of
their parents, yet, putting the case of a father, a grandfather,
and a great-grandfather who had been condemned to death, proposed
that their descendants should be banished, as belonging to an
incorrigible family. '' Carrara called this a mistaken idea, but
it seems to us to be substantially just. It may be remembered
that when De Metz in 1839 founded his agricultural penal colony at
Metray, once celebrated but now in decay (for the whole success of
these foundations depends on the exceptional psychological
qualities of their governors), out of 4,454 children, 871, or 20
per cent. , were the children of convicts. We quite agree with
Crofton's proposal to place the children of convicts in
industrial schools or houses of correction.
A special establishment for the perpetual or indefinite seclusion
of incorrigible criminals has been proposed or approved in Italy
by Lombroso, Curcio, Barini, Doria, Tamassia, Garofalo, Carelli;
in France by Despine, Labatiste, Tissot, Leveille; in Russia by
Minzloff; in England by May; in Germany by Kraepelin and
Lilienthal; in Austria by Wahlberg; in Switzerland by Guillaume;
in America by Wines and Wayland; in Holland by Van Hamel; in
Portugal by Lucas; &c.
But I believe that, in order to establish the fact of
incorrigibility, the number of relapses should vary in regard to
different criminals and crimes. Thus, for instance, in the case
of murders, especially by born criminals, the first crime should
lead to an order for imprisonment for life. In the case of less
serious crimes, such as rape, theft, wounding, swindling, &c. ,
from two to four relapses should be necessary before the habitual
criminal is sentenced to such imprisonment.
These ideas are approximately carried out, especially in the
countries which, having made no great advance in the criminal
sciences, meet with less of pedantic opposition to practical
reforms.
Thus we find that France, after the proposals of Michaux, Petit,
and Migneret, and especially after the advocacy of M. Reinach,
followed by several publications of a like kind, agreed to the law
of 1885 on the treatment of recidivism.
Messrs. Murray Brown and Baker spoke at the Prison Congress
at Stockholm and at the Societe Generale des Prisons
at Paris, of the system of cumulative and progressive sentences
adopted, though not universally, in England with respect to
hardened criminals. The term of imprisonment is increased, almost
regularly, on each new relapse. This is the system which had
already been suggested by Field and Walton Pearson at the Social
Science Congress in October, 1871, and subsequently by Cox and
Call, who was head of the police at Glasgow, at the Congress of
1874, and which, as Mr. Movatt pointed out, was adopted in the
Indian penal code, and had been established in Japan by a decree
fixing perpetual imprisonment after the fourth relapse.
The delegate from Canada at the Prison Congress at Stockholm
testified that short terms of imprisonment increased the number of
offences. ``After a first sentence many offenders in this class
become professional criminals. Professional thieves, who are
habitual offenders, ought, with few exceptions, to be sentenced to
imprisonment for life, or for a term equivalent to the probable
remainder of their life. '' The draft Russian code, in 1883,
provides that, ``If it is found that the accused is guilty of
several offences, and that he has committed them through habitual
criminality, or as a profession, the court, when deciding upon the
punishment in relation to the different crimes, may increase it,''
&c. And the Italian penal code, though with much timidity, has
decreed a special increase of punishment for prisoners ``who have
relapsed several times. ''
Quite recently, Senator Berenger introduced a measure in France
``on the progressive increase of punishment in cases of relapse,''
which became law on March 26, 1891, under the title of ``the
modification and increase of punishments. ''
It is therefore very probable that even the classical criminalists
will end by accepting the indefinite seclusion of hardened
criminals, as they have already come to accept criminal lunatic
asylums, though both ideas are opposed to the classical theories.
This is so true that at the Prison Congress at St. Petersburg in
1889 the question was first propounded ``whether it can be
admitted that certain criminals should be regarded as
incorrigible, and, if so, what means could be employed to protect
society against this class of convicts. '' And speaking as a
delegate from the Law Society of St. Petersburg, M. Spasovitch
acknowledged that ``this question bore the stamp of its origin on
its face. Of all the questions in the programme, it seemed to be
the only one directly inspired by the principles of the new
positive school of criminal anthropology, whose theories,
propagated beyond the land of their birth in Italy, tended to a
radical reform in science as well as in legislation, in the penal
law as well as in procedure, in ideas of crime as well as in the
modes of repression. ''
The Congress, in spite of some expressions of reserve, as when
Madame Arenal platonically observed that ``an uncorrected criminal
is not synonymous with an incorrigible criminal,'' adopted the
following resolution:--``Without admitting that from the
penal and penitentiary point of view there are any absolutely
incorrigible criminals''--which is pure pedantry--``yet since
experience shows that there are in fact individuals who resist the
combined action of punishment and imprisonment''--a notable
admission! --``and who habitually and almost professionally renew
their violation of the laws of society, this section of the
Congress is unanimously of opinion that it is necessary to adopt
special measures against such individuals. ''
Similarly the International Union of Penal Law, in its session at
Berne (August, 1890), expressed the opinions of the majority in
the following terms:--``There are malefactors for whom, in view of
their physical and moral condition, the constant application of
ordinary punishments is inadequate. In this class are specially
included the hardened recidivists, who ought to be considered as
degenerate criminals, or criminals by profession. Malefactors
ought to be subjected, according to the degree of their
degeneration, or of the danger which they threaten, to special
measures, framed with the purpose of preventing them from
inflicting harm, and of amending them if possible. '' And in the
session at Christiania (August, 1891), after the remarkable
contribution of Van Hamel, the Union, after rejecting the
proposition of Felisch, which spoke of ``the uncorrected'' in
place of the ``incorrigible,'' unanimously approved the
conclusions of Van Hamel:--``With a view to the more complete
study of the character and injurious influence of habitual
offenders, notably of such as are incorrigible (a study which is
absolutely indispensable for legislation), the Union
instructs its officers to urge upon the various Governments the
great importance of statistics of recidivism which shall be
detailed, precise, uniform, and adapted for comparative study.
For incorrigible habitual offenders it is absolutely necessary
that the trial on the last charge shall not definitely determine
the treatment of the offender, but that the decision shall be
carried on to a further inquiry, which shall have regard to the
offender personally, to his past, and to his conduct during a
fixed period of observation.
It is now necessary to inquire what form the perpetual or
indefinite segregation of the criminal should assume.
Two great innovations in regard to prisons, as M. Tarde observes,
have been made or developed within the past century, which are not
yet adopted in every country: penal colonies, whereof
transportation is only a factor, and the prison cell. The cell
has assumed a leading position since it was brought over from
America to Europe, where, however, the cellular prisons of St.
Michael at Rome, and of Gand, had preceded it.
The cellular system, a product of the reaction against the
enormous physical and moral putrefaction of the inmates of common
prisons and labour establishments, may have had, and doubtless
still has many advocates, amongst other reasons for the spirit of
pietism and religious penitence which always goes with it; but it
is open to strong criticism.
There has already been, amongst the same prison experts, a
certain retrogressive movement in regard to isolation. Absolute
and continued isolation, indeed, both by day and by night
(``solitary confinement'') was at first recommended, even to the
introduction, grotesque in spite of good intentions, of hoods and
masks for the prisoners, a mediaeval reminiscence almost
parallel with the Brothers of Pity in some Italian towns, for help
to the wounded. Presently it was seen that this sort of thing
certainly could not assist in the amendment of the guilty, and
then isolation was relaxed (still making it applicable both by day
and by night) with visits to prisoners by the chaplain, governors,
and representatives of vigilance and prisoners' aid societies.
This is called ``separate confinement. '' After this it was
recognised that the real need for isolation was at night, and then
the Auburn system was arrived at: isolation in cells by night,
with daily labour in common, with an obligation (which cannot be
enforced) of silence. And finally, seeing that in spite of the
threefold panacea of every prison system (isolation, work, and
instruction, especially religious instruction) relapses still
increased, it was understood that it might not be very useful to
subject a man for months or years to the monastic life of Trappist
brothers, in these monstrous human hives (which Bentham brought to
the notice of the French Constituent Assembly under the name of
``panopticons''), and to discharge him from prison at the end of
his term, and plunge him into all the temptations of an atmosphere
to which his lungs had become disaccustomed.
Then the ``progressive system'' was introduced, first in
England, where it was devised by Maconochie, next in Ireland,
which has given it a name, alternated with that of Sir W. Crofton.
This is the most symmetrically perfect machinery, though reminding
one somewhat of a company of marionettes. It confirms what was
said by Haeckel, that the actual is a summary of the moods of
aspiration, for it precisely sums up the systems which preceded
it, each of which constitutes a phase of the progressive system.
There is first of all a period of brotherly charity--absolute
isolation for the prisoner to fall back upon his conscience, or to
listen to the voice of remorse, or to receive an impression of
devotion and fear. After this comes the Auburnian phase, of
isolation by night and labour (when labour is accorded) by day,
with the constraint of silence. Then an intermediary period in
the agricultural colony or labour-gang outside the prison, like a
period of convalescence, to accustom the lungs to the keen air of
liberty. This is the phase added by Sir W. Crofton to the English
system. Lastly comes the period of conditional release (on ticket
of leave), whereby the last portion of the punishment is remitted,
and will count as expiated if during the time of liberation, and
for a succeeding period, the convict does not commit another
crime.
The progressive or retrogressive passage from one phase to another
is made by a sort of automatic regulator, depending on the number
of marks gained or lost by the prisoner through his good or bad
behaviour, to which we know the moral or psychological value to be
attached--a value purely negative.
This progressive, gradual, or Irish system has obtained a
supremacy in Europe, so that even Belgium, the classic land of the
cellular system, reconsidered the ideas which it had based on
daily experience, and was the first continental country to
introduce conditional sentences (in 1888), which are the fruit of
short sentences and cellular punishments.
I do not deny that this progressive system is better than the
others, though we must not forget that the almost miraculous
effects of amendment and decrease of recidivism (which indeed are
claimed for every new system, only to be disproved later on) were
due in Ireland to the wholesale emigration of those conditionally
released to North America--an emigration amounting to 46 per cent.
of the prisoners released. Nor must we forget that this system,
which requires a trained staff of officers, is less difficult to
work in countries where, as in Ireland, there are only a few
hundred prisoners; but it would be much more difficult in Italy or
France, where the prisoners are numbered by tens of thousands. In
these countries, accordingly, the system will not be practical
unless the principle of classifying prisoners in biological and
psychological categories is conjoined with it; for without this we
shall not get rid of the impersonal system which is the vice of
our present penal law, and under which, even in our prison
administration, we treat the prisoner as a mere symbol, to which
we can apply the three conventional rules of the cell, hard
labour, and instruction.
But I am strongly opposed to, or accept simply as accessory
(even for the seclusion of prisoners before trial, after the
preliminary examination), cellular isolation by itself, which has
reached the height of absurdity and inhumanity in cases of
imprisonment for life.
As Mancini said in 1876, discussing the draft of the Italian penal
code, ``the punishment of hard labour for life, which is
substituted in the draft for the capital sentence, differs
substantially in its severity of privation and misery from all
other modes of imprisonment. It must be undergone in one or two
special prisons to be erected within the country. It would be the
saddest and most terrible thing which the imagination of man could
conceive. These tombs of the living, whom society has rejected
for ever, unlike all other prisons, will condemn their inmates to
continuous solitary immurement in cells, and to a life which may
be worse than death itself. . . . This most wretched condition,
which the free man cannot realise without horror, is to last ten
years; and it is not to be in the power of man to bring it to an
end sooner, if the prisoner, broken down by physical weakness, or
threatened by loss of reason, cannot endure it any longer. ''
After this description, I am not sorry that I denounced the
cellular system as one of the madnesses of the nineteenth century.
This useless, stupid, inhuman, costly ``tomb of the living'' must
be repudiated, even when reduced to its lowest terms by the new
Italian code, wherein Parliament, accepting part of my amendment,
fixes the term of absolute seclusion at seven years.
It will be seen by this description of cellular imprisonment that
the classical criminal and prison experts have logically arrived
at the conclusion that perpetual punishment should be abolished;
and this renders recidivism possible even in murder. But it is
clear that what we ought to abolish is not perpetual separation,
but only the stupidly harsh form of isolation in cells--and this
not only in life sentences, but in all sentences.
Cellular imprisonment is inhuman, because it blots out or weakens,
in the cases of the least degenerate criminals, that social sense
which was already feeble in them, and also because it inevitably
leads to madness or consumption (by onanism, insufficient
movement, air, &c. ). Hence it drives the prison authorities, in
order to avoid these disastrous consequences, to the injustice of
building cells for murderers which are decidedly comfortable, and
consequently a mockery of the honest wretchedness of the cottages
and garrets of the poor. The treatment of mental diseases
recognises a special form of insanity under the name of prison
madness.
Cellular imprisonment, in temporary or indefinite sentences, can
do nothing for the amendment of the guilty, especially because,
when we do not amend the social environment, it is useless to
lavish care on our prisoners if, as soon as they quit prison, they
must return to the same conditions which led them into crime. No
adequate social prevention can in any way be provided by the more
or less arcadian devices of the prisoners' aid societies. The
chief mistake of the prison experts has been to concentrate their
attention exclusively on the cell and in the cell,
forgetting the external factors of crime; so that, by a familiar
psychological process, the cell has become for prison experts what
money is to the avaricious: it has ceased to be a means, and has
become an end in itself.
Again, the cellular system is ineffectual because the very
isolation which was its original object is incapable of
realisation. Prisoners find a thousand means of carrying on
communication with each other, during their walks, or by writing
on the leaves of books lent to them to read, or by knocking on
their walls according to a conventional alphabet, or by writing in
the sand, or by using the drains as telephonic receivers, as was
done in the cellular prisons of Mazas, Milan, &c. Plain proofs of
this may be found in Lombroso's ``Les Palimpsestes des Prisons. ''
``The public, and even well-informed persons, honestly believe
that the cellular prison is a dumb and paralytic thing, without
tongue or hands, simply because the law has ordered silence and
inactivity. But as no decree, however vigorous, can counteract
the nature of things, so this organism speaks, moves, occasionally
wounds or slays, in spite of all the decrees. Only, as always
happens when a necessity of humanity is opposed by a law, it acts
by less known, underground and hidden means. ''
Moreover, the cellular system is unequal in its application, for
difference of race has much to say to it, and in fact it is a
clumsy machinery of the northern races, repugnant to those of the
south, more dependent on the open air and light. Apart from that,
isolation has very different effects amongst people of the same
nation, according to the different vocations of the
prisoners, especially of occasional offenders. In this connection
the testimony of Faucher, Ferrus, and Tarde is thoroughly just,
that in prison administration we ought to observe a distinction
between dwellers in town and country. [23]
[23] Yet the question whether the cellular system should be
modified in accordance with the nationality, social condition, and
sex of criminals, which has not been brought forward since the
Prison Congress at Stockholm, was there decided by the following
resolution:--``The cellular system, where it is in operation, may
be applied without distinction of race, social condition (as
regards townsmen or rural population), or sex, provided that the
authorities have regard to these special conditions in matters of
detail. Exception may be made in respect of the young, and if
cellular discipline is applied to them also, it should be in such
a way as not to prejudice their physical and moral development. ''
(``Proceedings,'' 1878, pp. 303, 617. )
Again, the cellular system is too costly to be adopted as the only
form of imprisonment--which, however, is enacted in the Italian
penal code, the French law of 1875, and elsewhere.
And it is just by reason of the enormous expenditure on vast
prisons that the grievous and mischievous contrast arises between
the comforts provided for murderers and men guilty of arson in
their cells and the privations to which the honest poor are
exposed in hospitals, poorhouses, town garrets, country hovels,
and barracks. One of the most significant results which I noticed
at the exhibition of various plans of cells in connection with the
Prison Congress at Rome in 1885 was that it demonstrated to the
general public how the cellular system treats prisoners (whether
before trial or after sentence) better than the poor, who continue
to be honest in spite of their wretchedness. [24]
[24] Even prison experts have been concerned by the vast expense
of the cellular system, and the following question was brought
forward at the Congress at Rome:--``What modifications
would be possible, in accordance with recent experience, in the
construction of cellular prisons so as to render it more simple
and less costly, without detriment to the necessary conditions of
a sound and intelligent application of the system? '' Detailed
recommendations were agreed to on the motion of M. Herbette; but
the system is unchanged, with requirements which can be only very
slightly reduced.
In Germany, as well as in France and Italy, legislation has
ordained, by codes and special laws, the cellular system for all
punishment by imprisonment; but fortunately the system has not yet
been adopted, thanks to its enormous cost. So that we have the
further absurdity of codes based on prison systems which have no
actual existence. And since criminals have their part in the law,
not as it is written but as it is carried out, the result is
naturally disastrous.
Thus the cellular system bears hard upon the honest classes, both
by its enormous cost, under the form of taxation, and by
competition with free and honest labour. The competition is moral
in the first place, for the criminal is always assured of daily
work, lodgings, and food, whilst the honest workman is assured of
neither. Even the economic competition, though not extensive when
we take the totals of free workmen and prisoners, is still very
keen in particular places and for particular industries, whilst
prison labour never indemnifies the State for its expenditure; for
clearly with cellular isolation it is impossible to organise
important and profitable industry. It is the small industries,
such as shoemaking and carpentry, which crush the same free
industries all round the prison, for they cannot stand against the
artificial competition created by the nominal wages of the prison
hands. Though for moral and financial reasons the convicts
must work, it is evident that on these grounds we cannot accept
the cellular system as a pattern of prison organisation.
It is quite sufficient, in prisons for the segregation of
criminals, to provide for isolation by night, which requires
buildings far more simple and less costly than those of the
cellular prisons.
Work in the open air is the only useful basis of organisation for
convict prisons.
Air, light, movement, field labour, especially in southern
counties and for the majority of prisoners, who are rural--these
are the only physical and moral disinfectants possible for
prisoners not entirely degenerate, or likely to prevent at least
the absolute brutalisation of the incorrigible, by giving them
healthy and more remunerative work.
The penal agricultural colony, in lands which need clearing, is
the best for adults, passing from the least to the most healthy
according to the categories of criminals--born, habitual,
occasional--and according to the gravity of the crimes committed.
To this may be added, for convicts less capable of restoration to
social life, labour in mines, especially when the mines are State
property. What I have said of malaria I say of fire-damp: it is
much better that these should kill off criminals, than honest
workmen.
The penal agricultural colony in lands already cultivated is best
for children and young people.
This is the ideal and the typical form of segregation for
criminals, against whom it would not be sufficient to exact strict
reparation of damage, on the principles already set forth.
Wherever there is a crowding of humanity, there is human
fermentation and putrefaction. Only labour in the open air will
secure physical and moral health. And if agricultural work would
be less fitted for criminals from the towns, there is no reason
why an agricultural colony should not make itself as far as
possible self-sufficing by means of workshops where prisoners
could ply the trade to which they were accustomed when at liberty.
For town convicts without a trade, such as vagabonds, beggars, and
the like, on the ground of their muscular incapacity for hard and
regular work, an agricultural colony is still the most fit, for it
provides light and varied occupations, as the agricultural
colonies of Holland, Belgium, and Austria bear witness.
The same evolution will take place in regard to the segregation of
criminals as in regard to the seclusion of the insane; first,
hospitals and prisons, with a terrible communion of corruption in
both cases; then barrack life, in asylums or penitentiaries, vast
and isolated; lastly, for the insane, a system of so-called
village asylums, and even a free colony for harmless idiots who
can be put to agricultural work and minor trades, as at Gheel in
Belgium. Similarly for criminals, the sanitary ``elbow room'' of
agricultural colonies will be substituted for the infectious
barrack-life of the great prisons.
As for habitual criminals, their anthropological characteristics
remind us that we must distinguish between the two crises of their
criminal activity, and, as a consequence, between the methods of
defence against them. That is to say, we must distinguish
between the initial moment at which they commit their first crime
and the subsequent period in which they become habitual offenders,
recidivists, and even incorrigible.
Thus it is clear that at the initial moment of their criminal
career they ought to be subjected to the measures which I am about
to indicate for occasional criminals; whereas, when from
occasional they have become, partly by their imprisonment,
habitual offenders, they must be subjected to the measures already
indicated for born criminals. The latter are incorrigible through
congenital tendency to degenerate, and the former are incorrigible
through acquired tendency; but they end in the same degree of
anti-sociality and brutalisation. There is, however, this
difference, that habitual offenders nearly always commit less
serious crimes, such as theft, swindling, forgery, indecent
assault, whilst the born criminals, though they may be petty
thieves, or not very formidable swindlers, are more frequently
murderers, footpads, guilty of arson, or the like. Thus the
discipline of their segregation must vary accordingly.
For occasional criminals, social defence must have a character of
prevention rather than of repression, so as to save them from
being driven, by a mistaken prison organisation, to become
recidivists, and therefore habitual and incorrigible criminals.
It is especially important in this category to discriminate
between the young and the adults, for with the former, far
more than with the latter, the preventive methods may have a
sensible effect in diminishing crime. But we must take care, in
place of the pedantic graduation of responsibility which satisfies
the penal codes, to substitute a physiological and psychical
treatment of children and young people, who are actual criminals
or framing for crime.
Beginning with the physical and moral treatment of foundling
children as one of the most effectual penal substitutes, and
advancing to reformatory constraint and penal sentences upon the
young, there is an entire system crying for radical reform, from
which imprisonment for young persons should always be excluded.
We must therefore abolish the so-called houses of correction; for,
taking no account of the absurd and dangerous confusion created by
the three classes of children committed for paternal correction,
for begging and vagrancy, and for offences, no good can ever come
of it, for the herding and crowding together are nowhere more
productive of fermentation and putrefaction than amongst the
young.
There is nothing for them but separate boarding-out with families
of honest country folk, or else agricultural colonies with a
discipline different from that of the colonies for adult
criminals, but still based on the rule of isolation by night, work
in the open air, and as little crowding as possible.
For adult occasional criminals it is unnecessary to insist any
further on the absurdity and danger of short terms of
imprisonment, with or without isolation in cells, which now
constitute the almost exclusive mode of repression. A few
days in prison, mostly in association with habitual criminals,
cannot exercise any deterrent influence, especially in the
grotesque minimum of one day, or three days, as provided by the
Dutch, Italian, and other codes. On the contrary, they are
attended by disastrous effects, by destroying the serious
character of justice, relieving prisoners of all fear of
punishment, and consequently driving them to relapse, under the
influence of the disgrace already suffered, and of the corrupting
and compromising association with habitual criminals in prison.
The results of these short terms, indeed, which impose about the
same restriction of liberty as an attack of indigestion, or a
heavy fall of snow, are so manifest that the objection to them is
now almost unanimous, though they still form the basis of the most
recent penal codes.
As to the substitution of other repressive methods in the many
cases of sentence for light offences, theorists and legislators
have proposed domiciliary arrest, sureties, judicial warnings,
compulsory work without imprisonment, conditional suspension of a
sentence or a punishment, qualified banishment. For the moment
there is a marked preference for conditional sentences.
In my opinion, however, none of these substitutes or short terms
of imprisonment can be applied as effectively or as generally as
is necessary for the large class of occasional offenders.
Domiciliary arrests, indeed, which the Italian penal code applies
only to women and minors for a first contravention of the
law, with detention in the house, cannot be made effective. They
would be useless for those already obliged to remain at home by
their daily occupations, and for the rich, who could have any form
of distraction in their own houses; and they would be injurious to
those who have to earn a living for themselves and their families
in workrooms, shops, offices, &c. Moreover, this domiciliary
detention would be very difficult in the great towns, where it
would probably require a sentinel for every condemned person.
Bail for good behaviour is too unequal in the case of the poor and
the rich, and therefore too rarely applicable to be any more than
an exceptional and accessory measure, taken in conjunction with
the payment of damages; and this even when it is given by
sureties.
Judicial warning, with or without security, which the new Italian
penal code has sought to revive, in spite of many years'
experience under the older codes, cannot be seriously treated.
Either the prisoner is an occasional offender, or an offender
through passion, having a sense of honour, in which case public
opinion is itself a sufficient lesson for him, without the need of
a little moral lecture from the judge; or else he has no such
moral sensibility, and then the warning is a mere useless
ceremony, without effect either on the criminal or on the public.
So true is this that judicial warning (a different thing from
police warning, which is another so-called preventive measure,
both ineffectual and injurious) is rarely applied by magistrates.
Compulsory work without imprisonment may be admitted, not as a
main punishment, but as a mode of enforcing strict reparation of
damage, which I still believe to be the only suitable measure for
occasional offenders, when the offence is slight.
The same must be said for qualified banishment (temporary removal
from the place where the crime was committed), which may be added
as a preventive measure, and as a satisfaction for the injured
party, in the same cases where the payment of damages is the
principal retribution.
There remains the conditional sentence. A judge may decide, in
the case of first offenders who appear to him to call for such
treatment, that the sentence or the execution of the sentence,
shall be suspended for a given period, after which, if the
offender has been of good behaviour, and has not committed another
offence, the sentence is effaced and the condemnation is regarded
as non-existent; whilst in the other case the sentence takes
effect, and the punishment is added to that of the new crime.
This conditional suspension, however, assumes two very different
forms.
At Boston, in the State of Massachusetts, from the year 1870 in
the case of minors, and from 1878 in the case of adults, judgment
is suspended without regard even to the gravity of the crime or to
the antecedents of the criminal; and this custom has applied to
the entire State from the year 1880. All that the judge does is
to fix the period of probation. There is a probation officer
whose business it is to keep his eye on the persons affected, and
who has extensive powers, including that of bringing them
up for sentence even for disorderly conduct, without waiting for
an actual relapse. This system has also been introduced into New
Zealand and Australia (1886).
In England, after the advocacy of the probation system by the
Howard Association, an Act was passed in 1887 ``to permit the
conditional Release of first Offenders in certain cases. '' This
law combines probation with sureties for good conduct. Judgment
is given, but sentence is not pronounced. The suspension is not
granted to any one who has previously committed an offence, or
whose first offence would be liable to a punishment exceeding two
years' imprisonment. There is no probation officer, for
supervision is replaced by personal or other sureties for good
behaviour.
On the continent of Europe another form has been adopted. There
is no supervision by a special officer, and no surety for good
behaviour; judgment is delivered and sentence pronounced; and the
suspension is not forfeited by disorderly conduct, but only by an
actual relapse.
This system, so far as the purpose was not effected by various
conditions as to the duration of punishment, which left room for
conditional sentences, as to the interval for taking cognisance of
relapse, and other details, was proposed in France (1884) by
Senator 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.
very faint chances of return, it is the best mode of ridding
society of its most injurious factors, without our being compelled
to keep them in those compulsory human hives which are known as
cellular prisons.
But again, there is the question of simple transportation, first
put into practice by England, which consists of planting convicts
on an island or desert continent, with the opportunity of living
by labour, or else of letting them loose in a savage country,
where the convicts, who in civilised countries are themselves half
savage, would represent a partial civilisation, and, from being
highwaymen and murderers, might become military leaders in
countries where, at any rate, the revival of their criminal
tendencies would meet with an immediate and energetic resistance,
in place of the slow machinery of our criminal trials.
For Italy, however, the question presents itself in a special
form; for there a sort of internal deportation, in the lands which
are not tilled on account of the malaria, would be far more
serviceable. If the dispersion of this malaria demands a human
hecatomb, it would evidently be better to sacrifice criminals than
honest husbandmen. Transportation across the sea was very
difficult for Italy a few years ago, especially in view of the
lack of colonies; for then there was always the obstacle of which
Franklin spoke in reference to transported English convicts, in
his well-known retort: ``What would you say if we were to
transport our rattlesnakes to England? '' But since Italy has had
her colony of Erythrea the idea of transportation has been taken
up again. In May, 1890, I brought forward a resolution in
Parliament in favour of an experimental penal colony in our
African dependencies. The proposal found many supporters, in
spite of the opposition of the keeper of the seals, who forgot
that he had written in his report on the draft penal code
that prisoners might also be detained in the colonies. Soon
afterwards the proposal was renewed by Deputy De Zerbi, and
accepted by M. Beltrani Scalia, director-general of prisons.
In a similar manner M. Prins declares himself in favour of
transportation for Belgium, since the constitution of the Congo
State.
But it is my matured opinion that transportation ought not to be
an end in itself. The penal colony for adults ought to be a
pioneer of the free agricultural colony. The problem of a penal
colony in our African possessions cannot, therefore, be solved in
advance of two other questions.
Before all, we must see whether these possessions offer suitable
districts for agricultural colonisation. And secondly, we must
consider whether convicts would not cost less to transport into
districts nearer home which need to be cleared, a plan which would
also prevent their going over to the enemy, becoming leaders or
guides of the barbarous tribes which are at war with us.
In any case, whether we decide on transportation to the interior
or beyond the seas, for born and habitual criminals, there is
still the question as to the form of seclusion.
In this connection the idea has been suggested of ``establishments
for incorrigibles,'' or hardened criminals, wherein should be
confined for life, or (the same thing in this case) for an
indefinite period, born criminals who have committed serious
crimes, habitual criminals, and confirmed recidivists.
The congenital character and hereditary transmission of criminal
tendencies in these individuals fully justify the words of
Quetelet, that ``moral diseases are like physical diseases: they
are contagious, or epidemic, or hereditary. Vice is transmitted
in some families in the same way as scrofula or consumption. The
greater number of crimes come from a comparatively few families,
which need a special supervision, an isolation like that which we
impose on sick persons suspected of carrying the germs of
infection. '' So Aristotle speaks of a man who, being accused of
beating his father, answered: ``My father beat my grandfather,
who used to beat his father cruelly; and you see my son--before he
is grown up he will fly into passions and beat me. '' And Plutarch
added to this: ``The sons of vicious and corrupt men reproduce
the very nature of their parents. ''
This is the explanation of Plato's idea, who, ``admitting the
principle that children ought not to suffer for the crimes of
their parents, yet, putting the case of a father, a grandfather,
and a great-grandfather who had been condemned to death, proposed
that their descendants should be banished, as belonging to an
incorrigible family. '' Carrara called this a mistaken idea, but
it seems to us to be substantially just. It may be remembered
that when De Metz in 1839 founded his agricultural penal colony at
Metray, once celebrated but now in decay (for the whole success of
these foundations depends on the exceptional psychological
qualities of their governors), out of 4,454 children, 871, or 20
per cent. , were the children of convicts. We quite agree with
Crofton's proposal to place the children of convicts in
industrial schools or houses of correction.
A special establishment for the perpetual or indefinite seclusion
of incorrigible criminals has been proposed or approved in Italy
by Lombroso, Curcio, Barini, Doria, Tamassia, Garofalo, Carelli;
in France by Despine, Labatiste, Tissot, Leveille; in Russia by
Minzloff; in England by May; in Germany by Kraepelin and
Lilienthal; in Austria by Wahlberg; in Switzerland by Guillaume;
in America by Wines and Wayland; in Holland by Van Hamel; in
Portugal by Lucas; &c.
But I believe that, in order to establish the fact of
incorrigibility, the number of relapses should vary in regard to
different criminals and crimes. Thus, for instance, in the case
of murders, especially by born criminals, the first crime should
lead to an order for imprisonment for life. In the case of less
serious crimes, such as rape, theft, wounding, swindling, &c. ,
from two to four relapses should be necessary before the habitual
criminal is sentenced to such imprisonment.
These ideas are approximately carried out, especially in the
countries which, having made no great advance in the criminal
sciences, meet with less of pedantic opposition to practical
reforms.
Thus we find that France, after the proposals of Michaux, Petit,
and Migneret, and especially after the advocacy of M. Reinach,
followed by several publications of a like kind, agreed to the law
of 1885 on the treatment of recidivism.
Messrs. Murray Brown and Baker spoke at the Prison Congress
at Stockholm and at the Societe Generale des Prisons
at Paris, of the system of cumulative and progressive sentences
adopted, though not universally, in England with respect to
hardened criminals. The term of imprisonment is increased, almost
regularly, on each new relapse. This is the system which had
already been suggested by Field and Walton Pearson at the Social
Science Congress in October, 1871, and subsequently by Cox and
Call, who was head of the police at Glasgow, at the Congress of
1874, and which, as Mr. Movatt pointed out, was adopted in the
Indian penal code, and had been established in Japan by a decree
fixing perpetual imprisonment after the fourth relapse.
The delegate from Canada at the Prison Congress at Stockholm
testified that short terms of imprisonment increased the number of
offences. ``After a first sentence many offenders in this class
become professional criminals. Professional thieves, who are
habitual offenders, ought, with few exceptions, to be sentenced to
imprisonment for life, or for a term equivalent to the probable
remainder of their life. '' The draft Russian code, in 1883,
provides that, ``If it is found that the accused is guilty of
several offences, and that he has committed them through habitual
criminality, or as a profession, the court, when deciding upon the
punishment in relation to the different crimes, may increase it,''
&c. And the Italian penal code, though with much timidity, has
decreed a special increase of punishment for prisoners ``who have
relapsed several times. ''
Quite recently, Senator Berenger introduced a measure in France
``on the progressive increase of punishment in cases of relapse,''
which became law on March 26, 1891, under the title of ``the
modification and increase of punishments. ''
It is therefore very probable that even the classical criminalists
will end by accepting the indefinite seclusion of hardened
criminals, as they have already come to accept criminal lunatic
asylums, though both ideas are opposed to the classical theories.
This is so true that at the Prison Congress at St. Petersburg in
1889 the question was first propounded ``whether it can be
admitted that certain criminals should be regarded as
incorrigible, and, if so, what means could be employed to protect
society against this class of convicts. '' And speaking as a
delegate from the Law Society of St. Petersburg, M. Spasovitch
acknowledged that ``this question bore the stamp of its origin on
its face. Of all the questions in the programme, it seemed to be
the only one directly inspired by the principles of the new
positive school of criminal anthropology, whose theories,
propagated beyond the land of their birth in Italy, tended to a
radical reform in science as well as in legislation, in the penal
law as well as in procedure, in ideas of crime as well as in the
modes of repression. ''
The Congress, in spite of some expressions of reserve, as when
Madame Arenal platonically observed that ``an uncorrected criminal
is not synonymous with an incorrigible criminal,'' adopted the
following resolution:--``Without admitting that from the
penal and penitentiary point of view there are any absolutely
incorrigible criminals''--which is pure pedantry--``yet since
experience shows that there are in fact individuals who resist the
combined action of punishment and imprisonment''--a notable
admission! --``and who habitually and almost professionally renew
their violation of the laws of society, this section of the
Congress is unanimously of opinion that it is necessary to adopt
special measures against such individuals. ''
Similarly the International Union of Penal Law, in its session at
Berne (August, 1890), expressed the opinions of the majority in
the following terms:--``There are malefactors for whom, in view of
their physical and moral condition, the constant application of
ordinary punishments is inadequate. In this class are specially
included the hardened recidivists, who ought to be considered as
degenerate criminals, or criminals by profession. Malefactors
ought to be subjected, according to the degree of their
degeneration, or of the danger which they threaten, to special
measures, framed with the purpose of preventing them from
inflicting harm, and of amending them if possible. '' And in the
session at Christiania (August, 1891), after the remarkable
contribution of Van Hamel, the Union, after rejecting the
proposition of Felisch, which spoke of ``the uncorrected'' in
place of the ``incorrigible,'' unanimously approved the
conclusions of Van Hamel:--``With a view to the more complete
study of the character and injurious influence of habitual
offenders, notably of such as are incorrigible (a study which is
absolutely indispensable for legislation), the Union
instructs its officers to urge upon the various Governments the
great importance of statistics of recidivism which shall be
detailed, precise, uniform, and adapted for comparative study.
For incorrigible habitual offenders it is absolutely necessary
that the trial on the last charge shall not definitely determine
the treatment of the offender, but that the decision shall be
carried on to a further inquiry, which shall have regard to the
offender personally, to his past, and to his conduct during a
fixed period of observation.
It is now necessary to inquire what form the perpetual or
indefinite segregation of the criminal should assume.
Two great innovations in regard to prisons, as M. Tarde observes,
have been made or developed within the past century, which are not
yet adopted in every country: penal colonies, whereof
transportation is only a factor, and the prison cell. The cell
has assumed a leading position since it was brought over from
America to Europe, where, however, the cellular prisons of St.
Michael at Rome, and of Gand, had preceded it.
The cellular system, a product of the reaction against the
enormous physical and moral putrefaction of the inmates of common
prisons and labour establishments, may have had, and doubtless
still has many advocates, amongst other reasons for the spirit of
pietism and religious penitence which always goes with it; but it
is open to strong criticism.
There has already been, amongst the same prison experts, a
certain retrogressive movement in regard to isolation. Absolute
and continued isolation, indeed, both by day and by night
(``solitary confinement'') was at first recommended, even to the
introduction, grotesque in spite of good intentions, of hoods and
masks for the prisoners, a mediaeval reminiscence almost
parallel with the Brothers of Pity in some Italian towns, for help
to the wounded. Presently it was seen that this sort of thing
certainly could not assist in the amendment of the guilty, and
then isolation was relaxed (still making it applicable both by day
and by night) with visits to prisoners by the chaplain, governors,
and representatives of vigilance and prisoners' aid societies.
This is called ``separate confinement. '' After this it was
recognised that the real need for isolation was at night, and then
the Auburn system was arrived at: isolation in cells by night,
with daily labour in common, with an obligation (which cannot be
enforced) of silence. And finally, seeing that in spite of the
threefold panacea of every prison system (isolation, work, and
instruction, especially religious instruction) relapses still
increased, it was understood that it might not be very useful to
subject a man for months or years to the monastic life of Trappist
brothers, in these monstrous human hives (which Bentham brought to
the notice of the French Constituent Assembly under the name of
``panopticons''), and to discharge him from prison at the end of
his term, and plunge him into all the temptations of an atmosphere
to which his lungs had become disaccustomed.
Then the ``progressive system'' was introduced, first in
England, where it was devised by Maconochie, next in Ireland,
which has given it a name, alternated with that of Sir W. Crofton.
This is the most symmetrically perfect machinery, though reminding
one somewhat of a company of marionettes. It confirms what was
said by Haeckel, that the actual is a summary of the moods of
aspiration, for it precisely sums up the systems which preceded
it, each of which constitutes a phase of the progressive system.
There is first of all a period of brotherly charity--absolute
isolation for the prisoner to fall back upon his conscience, or to
listen to the voice of remorse, or to receive an impression of
devotion and fear. After this comes the Auburnian phase, of
isolation by night and labour (when labour is accorded) by day,
with the constraint of silence. Then an intermediary period in
the agricultural colony or labour-gang outside the prison, like a
period of convalescence, to accustom the lungs to the keen air of
liberty. This is the phase added by Sir W. Crofton to the English
system. Lastly comes the period of conditional release (on ticket
of leave), whereby the last portion of the punishment is remitted,
and will count as expiated if during the time of liberation, and
for a succeeding period, the convict does not commit another
crime.
The progressive or retrogressive passage from one phase to another
is made by a sort of automatic regulator, depending on the number
of marks gained or lost by the prisoner through his good or bad
behaviour, to which we know the moral or psychological value to be
attached--a value purely negative.
This progressive, gradual, or Irish system has obtained a
supremacy in Europe, so that even Belgium, the classic land of the
cellular system, reconsidered the ideas which it had based on
daily experience, and was the first continental country to
introduce conditional sentences (in 1888), which are the fruit of
short sentences and cellular punishments.
I do not deny that this progressive system is better than the
others, though we must not forget that the almost miraculous
effects of amendment and decrease of recidivism (which indeed are
claimed for every new system, only to be disproved later on) were
due in Ireland to the wholesale emigration of those conditionally
released to North America--an emigration amounting to 46 per cent.
of the prisoners released. Nor must we forget that this system,
which requires a trained staff of officers, is less difficult to
work in countries where, as in Ireland, there are only a few
hundred prisoners; but it would be much more difficult in Italy or
France, where the prisoners are numbered by tens of thousands. In
these countries, accordingly, the system will not be practical
unless the principle of classifying prisoners in biological and
psychological categories is conjoined with it; for without this we
shall not get rid of the impersonal system which is the vice of
our present penal law, and under which, even in our prison
administration, we treat the prisoner as a mere symbol, to which
we can apply the three conventional rules of the cell, hard
labour, and instruction.
But I am strongly opposed to, or accept simply as accessory
(even for the seclusion of prisoners before trial, after the
preliminary examination), cellular isolation by itself, which has
reached the height of absurdity and inhumanity in cases of
imprisonment for life.
As Mancini said in 1876, discussing the draft of the Italian penal
code, ``the punishment of hard labour for life, which is
substituted in the draft for the capital sentence, differs
substantially in its severity of privation and misery from all
other modes of imprisonment. It must be undergone in one or two
special prisons to be erected within the country. It would be the
saddest and most terrible thing which the imagination of man could
conceive. These tombs of the living, whom society has rejected
for ever, unlike all other prisons, will condemn their inmates to
continuous solitary immurement in cells, and to a life which may
be worse than death itself. . . . This most wretched condition,
which the free man cannot realise without horror, is to last ten
years; and it is not to be in the power of man to bring it to an
end sooner, if the prisoner, broken down by physical weakness, or
threatened by loss of reason, cannot endure it any longer. ''
After this description, I am not sorry that I denounced the
cellular system as one of the madnesses of the nineteenth century.
This useless, stupid, inhuman, costly ``tomb of the living'' must
be repudiated, even when reduced to its lowest terms by the new
Italian code, wherein Parliament, accepting part of my amendment,
fixes the term of absolute seclusion at seven years.
It will be seen by this description of cellular imprisonment that
the classical criminal and prison experts have logically arrived
at the conclusion that perpetual punishment should be abolished;
and this renders recidivism possible even in murder. But it is
clear that what we ought to abolish is not perpetual separation,
but only the stupidly harsh form of isolation in cells--and this
not only in life sentences, but in all sentences.
Cellular imprisonment is inhuman, because it blots out or weakens,
in the cases of the least degenerate criminals, that social sense
which was already feeble in them, and also because it inevitably
leads to madness or consumption (by onanism, insufficient
movement, air, &c. ). Hence it drives the prison authorities, in
order to avoid these disastrous consequences, to the injustice of
building cells for murderers which are decidedly comfortable, and
consequently a mockery of the honest wretchedness of the cottages
and garrets of the poor. The treatment of mental diseases
recognises a special form of insanity under the name of prison
madness.
Cellular imprisonment, in temporary or indefinite sentences, can
do nothing for the amendment of the guilty, especially because,
when we do not amend the social environment, it is useless to
lavish care on our prisoners if, as soon as they quit prison, they
must return to the same conditions which led them into crime. No
adequate social prevention can in any way be provided by the more
or less arcadian devices of the prisoners' aid societies. The
chief mistake of the prison experts has been to concentrate their
attention exclusively on the cell and in the cell,
forgetting the external factors of crime; so that, by a familiar
psychological process, the cell has become for prison experts what
money is to the avaricious: it has ceased to be a means, and has
become an end in itself.
Again, the cellular system is ineffectual because the very
isolation which was its original object is incapable of
realisation. Prisoners find a thousand means of carrying on
communication with each other, during their walks, or by writing
on the leaves of books lent to them to read, or by knocking on
their walls according to a conventional alphabet, or by writing in
the sand, or by using the drains as telephonic receivers, as was
done in the cellular prisons of Mazas, Milan, &c. Plain proofs of
this may be found in Lombroso's ``Les Palimpsestes des Prisons. ''
``The public, and even well-informed persons, honestly believe
that the cellular prison is a dumb and paralytic thing, without
tongue or hands, simply because the law has ordered silence and
inactivity. But as no decree, however vigorous, can counteract
the nature of things, so this organism speaks, moves, occasionally
wounds or slays, in spite of all the decrees. Only, as always
happens when a necessity of humanity is opposed by a law, it acts
by less known, underground and hidden means. ''
Moreover, the cellular system is unequal in its application, for
difference of race has much to say to it, and in fact it is a
clumsy machinery of the northern races, repugnant to those of the
south, more dependent on the open air and light. Apart from that,
isolation has very different effects amongst people of the same
nation, according to the different vocations of the
prisoners, especially of occasional offenders. In this connection
the testimony of Faucher, Ferrus, and Tarde is thoroughly just,
that in prison administration we ought to observe a distinction
between dwellers in town and country. [23]
[23] Yet the question whether the cellular system should be
modified in accordance with the nationality, social condition, and
sex of criminals, which has not been brought forward since the
Prison Congress at Stockholm, was there decided by the following
resolution:--``The cellular system, where it is in operation, may
be applied without distinction of race, social condition (as
regards townsmen or rural population), or sex, provided that the
authorities have regard to these special conditions in matters of
detail. Exception may be made in respect of the young, and if
cellular discipline is applied to them also, it should be in such
a way as not to prejudice their physical and moral development. ''
(``Proceedings,'' 1878, pp. 303, 617. )
Again, the cellular system is too costly to be adopted as the only
form of imprisonment--which, however, is enacted in the Italian
penal code, the French law of 1875, and elsewhere.
And it is just by reason of the enormous expenditure on vast
prisons that the grievous and mischievous contrast arises between
the comforts provided for murderers and men guilty of arson in
their cells and the privations to which the honest poor are
exposed in hospitals, poorhouses, town garrets, country hovels,
and barracks. One of the most significant results which I noticed
at the exhibition of various plans of cells in connection with the
Prison Congress at Rome in 1885 was that it demonstrated to the
general public how the cellular system treats prisoners (whether
before trial or after sentence) better than the poor, who continue
to be honest in spite of their wretchedness. [24]
[24] Even prison experts have been concerned by the vast expense
of the cellular system, and the following question was brought
forward at the Congress at Rome:--``What modifications
would be possible, in accordance with recent experience, in the
construction of cellular prisons so as to render it more simple
and less costly, without detriment to the necessary conditions of
a sound and intelligent application of the system? '' Detailed
recommendations were agreed to on the motion of M. Herbette; but
the system is unchanged, with requirements which can be only very
slightly reduced.
In Germany, as well as in France and Italy, legislation has
ordained, by codes and special laws, the cellular system for all
punishment by imprisonment; but fortunately the system has not yet
been adopted, thanks to its enormous cost. So that we have the
further absurdity of codes based on prison systems which have no
actual existence. And since criminals have their part in the law,
not as it is written but as it is carried out, the result is
naturally disastrous.
Thus the cellular system bears hard upon the honest classes, both
by its enormous cost, under the form of taxation, and by
competition with free and honest labour. The competition is moral
in the first place, for the criminal is always assured of daily
work, lodgings, and food, whilst the honest workman is assured of
neither. Even the economic competition, though not extensive when
we take the totals of free workmen and prisoners, is still very
keen in particular places and for particular industries, whilst
prison labour never indemnifies the State for its expenditure; for
clearly with cellular isolation it is impossible to organise
important and profitable industry. It is the small industries,
such as shoemaking and carpentry, which crush the same free
industries all round the prison, for they cannot stand against the
artificial competition created by the nominal wages of the prison
hands. Though for moral and financial reasons the convicts
must work, it is evident that on these grounds we cannot accept
the cellular system as a pattern of prison organisation.
It is quite sufficient, in prisons for the segregation of
criminals, to provide for isolation by night, which requires
buildings far more simple and less costly than those of the
cellular prisons.
Work in the open air is the only useful basis of organisation for
convict prisons.
Air, light, movement, field labour, especially in southern
counties and for the majority of prisoners, who are rural--these
are the only physical and moral disinfectants possible for
prisoners not entirely degenerate, or likely to prevent at least
the absolute brutalisation of the incorrigible, by giving them
healthy and more remunerative work.
The penal agricultural colony, in lands which need clearing, is
the best for adults, passing from the least to the most healthy
according to the categories of criminals--born, habitual,
occasional--and according to the gravity of the crimes committed.
To this may be added, for convicts less capable of restoration to
social life, labour in mines, especially when the mines are State
property. What I have said of malaria I say of fire-damp: it is
much better that these should kill off criminals, than honest
workmen.
The penal agricultural colony in lands already cultivated is best
for children and young people.
This is the ideal and the typical form of segregation for
criminals, against whom it would not be sufficient to exact strict
reparation of damage, on the principles already set forth.
Wherever there is a crowding of humanity, there is human
fermentation and putrefaction. Only labour in the open air will
secure physical and moral health. And if agricultural work would
be less fitted for criminals from the towns, there is no reason
why an agricultural colony should not make itself as far as
possible self-sufficing by means of workshops where prisoners
could ply the trade to which they were accustomed when at liberty.
For town convicts without a trade, such as vagabonds, beggars, and
the like, on the ground of their muscular incapacity for hard and
regular work, an agricultural colony is still the most fit, for it
provides light and varied occupations, as the agricultural
colonies of Holland, Belgium, and Austria bear witness.
The same evolution will take place in regard to the segregation of
criminals as in regard to the seclusion of the insane; first,
hospitals and prisons, with a terrible communion of corruption in
both cases; then barrack life, in asylums or penitentiaries, vast
and isolated; lastly, for the insane, a system of so-called
village asylums, and even a free colony for harmless idiots who
can be put to agricultural work and minor trades, as at Gheel in
Belgium. Similarly for criminals, the sanitary ``elbow room'' of
agricultural colonies will be substituted for the infectious
barrack-life of the great prisons.
As for habitual criminals, their anthropological characteristics
remind us that we must distinguish between the two crises of their
criminal activity, and, as a consequence, between the methods of
defence against them. That is to say, we must distinguish
between the initial moment at which they commit their first crime
and the subsequent period in which they become habitual offenders,
recidivists, and even incorrigible.
Thus it is clear that at the initial moment of their criminal
career they ought to be subjected to the measures which I am about
to indicate for occasional criminals; whereas, when from
occasional they have become, partly by their imprisonment,
habitual offenders, they must be subjected to the measures already
indicated for born criminals. The latter are incorrigible through
congenital tendency to degenerate, and the former are incorrigible
through acquired tendency; but they end in the same degree of
anti-sociality and brutalisation. There is, however, this
difference, that habitual offenders nearly always commit less
serious crimes, such as theft, swindling, forgery, indecent
assault, whilst the born criminals, though they may be petty
thieves, or not very formidable swindlers, are more frequently
murderers, footpads, guilty of arson, or the like. Thus the
discipline of their segregation must vary accordingly.
For occasional criminals, social defence must have a character of
prevention rather than of repression, so as to save them from
being driven, by a mistaken prison organisation, to become
recidivists, and therefore habitual and incorrigible criminals.
It is especially important in this category to discriminate
between the young and the adults, for with the former, far
more than with the latter, the preventive methods may have a
sensible effect in diminishing crime. But we must take care, in
place of the pedantic graduation of responsibility which satisfies
the penal codes, to substitute a physiological and psychical
treatment of children and young people, who are actual criminals
or framing for crime.
Beginning with the physical and moral treatment of foundling
children as one of the most effectual penal substitutes, and
advancing to reformatory constraint and penal sentences upon the
young, there is an entire system crying for radical reform, from
which imprisonment for young persons should always be excluded.
We must therefore abolish the so-called houses of correction; for,
taking no account of the absurd and dangerous confusion created by
the three classes of children committed for paternal correction,
for begging and vagrancy, and for offences, no good can ever come
of it, for the herding and crowding together are nowhere more
productive of fermentation and putrefaction than amongst the
young.
There is nothing for them but separate boarding-out with families
of honest country folk, or else agricultural colonies with a
discipline different from that of the colonies for adult
criminals, but still based on the rule of isolation by night, work
in the open air, and as little crowding as possible.
For adult occasional criminals it is unnecessary to insist any
further on the absurdity and danger of short terms of
imprisonment, with or without isolation in cells, which now
constitute the almost exclusive mode of repression. A few
days in prison, mostly in association with habitual criminals,
cannot exercise any deterrent influence, especially in the
grotesque minimum of one day, or three days, as provided by the
Dutch, Italian, and other codes. On the contrary, they are
attended by disastrous effects, by destroying the serious
character of justice, relieving prisoners of all fear of
punishment, and consequently driving them to relapse, under the
influence of the disgrace already suffered, and of the corrupting
and compromising association with habitual criminals in prison.
The results of these short terms, indeed, which impose about the
same restriction of liberty as an attack of indigestion, or a
heavy fall of snow, are so manifest that the objection to them is
now almost unanimous, though they still form the basis of the most
recent penal codes.
As to the substitution of other repressive methods in the many
cases of sentence for light offences, theorists and legislators
have proposed domiciliary arrest, sureties, judicial warnings,
compulsory work without imprisonment, conditional suspension of a
sentence or a punishment, qualified banishment. For the moment
there is a marked preference for conditional sentences.
In my opinion, however, none of these substitutes or short terms
of imprisonment can be applied as effectively or as generally as
is necessary for the large class of occasional offenders.
Domiciliary arrests, indeed, which the Italian penal code applies
only to women and minors for a first contravention of the
law, with detention in the house, cannot be made effective. They
would be useless for those already obliged to remain at home by
their daily occupations, and for the rich, who could have any form
of distraction in their own houses; and they would be injurious to
those who have to earn a living for themselves and their families
in workrooms, shops, offices, &c. Moreover, this domiciliary
detention would be very difficult in the great towns, where it
would probably require a sentinel for every condemned person.
Bail for good behaviour is too unequal in the case of the poor and
the rich, and therefore too rarely applicable to be any more than
an exceptional and accessory measure, taken in conjunction with
the payment of damages; and this even when it is given by
sureties.
Judicial warning, with or without security, which the new Italian
penal code has sought to revive, in spite of many years'
experience under the older codes, cannot be seriously treated.
Either the prisoner is an occasional offender, or an offender
through passion, having a sense of honour, in which case public
opinion is itself a sufficient lesson for him, without the need of
a little moral lecture from the judge; or else he has no such
moral sensibility, and then the warning is a mere useless
ceremony, without effect either on the criminal or on the public.
So true is this that judicial warning (a different thing from
police warning, which is another so-called preventive measure,
both ineffectual and injurious) is rarely applied by magistrates.
Compulsory work without imprisonment may be admitted, not as a
main punishment, but as a mode of enforcing strict reparation of
damage, which I still believe to be the only suitable measure for
occasional offenders, when the offence is slight.
The same must be said for qualified banishment (temporary removal
from the place where the crime was committed), which may be added
as a preventive measure, and as a satisfaction for the injured
party, in the same cases where the payment of damages is the
principal retribution.
There remains the conditional sentence. A judge may decide, in
the case of first offenders who appear to him to call for such
treatment, that the sentence or the execution of the sentence,
shall be suspended for a given period, after which, if the
offender has been of good behaviour, and has not committed another
offence, the sentence is effaced and the condemnation is regarded
as non-existent; whilst in the other case the sentence takes
effect, and the punishment is added to that of the new crime.
This conditional suspension, however, assumes two very different
forms.
At Boston, in the State of Massachusetts, from the year 1870 in
the case of minors, and from 1878 in the case of adults, judgment
is suspended without regard even to the gravity of the crime or to
the antecedents of the criminal; and this custom has applied to
the entire State from the year 1880. All that the judge does is
to fix the period of probation. There is a probation officer
whose business it is to keep his eye on the persons affected, and
who has extensive powers, including that of bringing them
up for sentence even for disorderly conduct, without waiting for
an actual relapse. This system has also been introduced into New
Zealand and Australia (1886).
In England, after the advocacy of the probation system by the
Howard Association, an Act was passed in 1887 ``to permit the
conditional Release of first Offenders in certain cases. '' This
law combines probation with sureties for good conduct. Judgment
is given, but sentence is not pronounced. The suspension is not
granted to any one who has previously committed an offence, or
whose first offence would be liable to a punishment exceeding two
years' imprisonment. There is no probation officer, for
supervision is replaced by personal or other sureties for good
behaviour.
On the continent of Europe another form has been adopted. There
is no supervision by a special officer, and no surety for good
behaviour; judgment is delivered and sentence pronounced; and the
suspension is not forfeited by disorderly conduct, but only by an
actual relapse.
This system, so far as the purpose was not effected by various
conditions as to the duration of punishment, which left room for
conditional sentences, as to the interval for taking cognisance of
relapse, and other details, was proposed in France (1884) by
Senator 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.
