M. Liszt proposes that the indeterminate_Criminal Sociology

should be only relative, that is to say, limited between a minimum

and a maximum, these being laid down in the sentence of the judge.

Special commissions for supervising the administration of

punishment, consisting of the Governor of the prison, the Public

Prosecutor, the judge who heard the case, and two members

nominated by Government (instead of the court which passed

sentence, as proposed by Villert and Van Hamel), should decide on

the actual duration of the punishment, after having examined the

convict and his record. Thus these commissions would be able to

liberate at once (with or without conditions) or to order a

prolongation of punishment, especially for habitual criminals.

With the formation of these commissions there might be associated

the prison studies and aid of discharged prisoners referred to on

a former page.

But I think that this proposal of M. Liszt is acceptable only for

commissions of supervision, or of the execution of punishment,

such as already exist in several countries, with a view solely to

prison administration and benevolence, and in which of course the

experts of criminal anthropology ought to take part, who, as I

have suggested, should be included in every preliminary criminal

inquiry. As for the determination of the maximum and minimum in

such a sentence, I believe it would not be practicable; the acting

commissions might find it necessary to go beyond them, and it

would be opposed to the very principle of indeterminate

segregation. The reason given by M. Liszt, that with this

provision the contrast with actual systems of punishment would be

less marked, does not seem to me decisive; for the principle we

maintain is so radically opposed to traditional theories and to

legislative and judicial custom that this optional passing of the

limits would avoid no difficulty, whilst it would destroy the

advantages of the new system.

In other words, when the conditions of the act committed and the

criminal who has committed it show that the reparation of the

damage inflicted is not sufficient by way of a defensive measure,

the judge will only have to pronounce in his sentence an

indefinite detention in the lunatic asylum, the prison for

incorrigibles, or the establishments for occasional criminals

(penal colonies, &c.).

The execution of this sentence will be rendered definite by

successive steps, which will no longer be detached, as they now

are, from the action of the magistrate, and taken without his

knowledge, but will be a systematic continuation of his work.

Permanent commissions for the supervision of punishment, composed

of administrative functionaries, experts in criminal anthropology,

magistrates, and representatives of the Public Prosecutor and the

defence, would render impossible that desertion and oblivion of

the convict which now follow almost immediately on the delivery of

the sentence, with the execution of which the judge has nothing to

do, except to see that he is represented. Pardon, or conditional

liberation, or the serving of the full punishment, are all left at

present to the chance of a blind official routine. These

commissions would have great social importance, for they would

mean on one hand the protection of society against imprudent

liberation of the most dangerous criminals, and on the other hand

the protection of the less dangerous against the danger of an

imprisonment recognised as excessive and unnecessary.

Allied to the principle of indeterminate segregation is that of

conditional release, which with the progressive prison system,

known as the Irish, is now accepted in nearly all European

countries. But conditional liberation in the system of definite

punishments, without distinction amongst the types of criminals,

is both contradictory in theory and ineffectual in practice. At

present, indeed, it has only a mechanical and almost impersonal

application, with one fallacious test, that of the alleged

``good conduct'' of the prisoner, which, according to the English

Inquiry Commission in 1863, ``can only have the negative value of

the absence of grave breaches of discipline.''

It will be understood that conditional release, as it would be

organised in the positive system of indeterminate segregation,

ought only to be granted after a physio-psychological examination

of the prisoner, and not after an official inspection of

documents, as at present. So that it will be refused, no longer,

as now, almost exclusively in regard to the gravity of the crime,

but in regard to the greater or less re-adaptability of the

criminal to social conditions. It will therefore be necessary to

deny it to mad and born criminals who are guilty of great crimes.

Conditional liberation is now carried out under the special

supervision of the police; but this is an ineffectual measure for

crafty criminals, and disastrous for occasional criminals, who are

shut out by the supervision from re-adaptation to normal

existence. The system of indeterminate segregation renders all

special supervision useless. Moreover, this duty only distracts

policemen by compelling them to keep an eye on a few hundred

liberated convicts, and to neglect thousands of other criminals,

who increase the number of unknown perpetrators of crime.

Similarly as to the discharged prisoners' aid societies, which,

notwithstanding their many sentimental declamations, and the

excellence of their intentions, continue to be as sterile as they

are benevolent. The reason here also is that they forget

to take into account the different types of criminals, and that

they are accustomed to give their patronage impartially to all

discharged prisoners, whether they are reclaimable or not. It

must not be forgotten, moreover, that this aiding of malefactors

ought not to be exaggerated when there are millions of honest

workmen more unfortunate than these liberated prisoners. In spite

of all the sentimentalism of the prisoners' aid societies, I

believe that a foreman will always be in the right if he chooses

an honest workman for a vacancy in his workshops in preference to

a discharged prisoner.

At the same time these societies may produce good results if they

concern themselves solely with occasional criminals, and

especially with the young, and make their study of crime

contribute to the training of future magistrates and pleaders.

2. The second fundamental principle of the positive system of

social defence against crime is that of indemnification for

damage, on which the positive school has always dwelt, in

combination with radical, theoretical, and practical reforms.

Reparation of damage suffered by the victims of crime may be

regarded from three different points of view:--(1) As an

obligation of the criminal to the injured party; (2) as an

alternative for imprisonment for slight offences committed by

occasional criminals; and (3) as a social function of the State on

behalf of the injured person, but also in the indirect and not

less important interest of social defence.

The positive school has affirmed the last two reforms--the second

on the initiative of Garofalo and Puglia, and the third on my own

proposal, which, as being more radical, has been more sharply

contested by the classical and eclectic schools.

In my treatise on ``The Right of Punishment as a Social

Function,'' I said: ``Let us not be told that __civil__

reparation is no part of _penal_ responsibility. I can see no

real difference between the payment of a sum of money as a fine

and its payment as damages; but more than that, I think a mistake

has been made in separating civil and penal measures too

absolutely, whereas they ought to be conjoined for defensive

purposes, in preventing certain particular anti-social acts.''

And again, classifying the measures of social defence (``measures

of prevention, reparation, repression, and elimination''), I said

in regard to measures of reparation: ``Our proposed reform is not

intended to be theoretical merely, for indeed it may be said

already that this liability to indemnify is established in the

majority of cases; but it should be above all a practical reform,

in the sense that, instead of separating civil and penal measures,

we shall make their joint application more certain, and even

require special regulations to compel the criminal judges, for

instance, to assess the damages, and so avoid the delays and

mischances of a new trial before the civil judges, and to compel

the Public Prosecutor to make an official demand, even when

through ignorance or fear there is no action on the part of the

injured person, that the criminal should be condemned to make good

the loss which he has inflicted. It will then be seen that

the fear of having to make strict restitution will be a spur to

the diligence of the well-to-do, in regard to involuntary

offences, whilst for the poor we shall be able to impose work on

behalf of the injured person in place of pecuniary damages.''

Shortly afterwards Garofalo wrote: ``In the opinion of our

school, for many offences, especially slighter offences against

the person, it would be serviceable to substitute for a few days'

imprisonment an effectual indemnification of the injured party.

Reparation of damage might become a genuine penal substitute, when

instead of being, as now, a legal consequence, a right which can

be enforced by the rules of civil procedure, it would become an

obligation from which the accused could in no way extract

himself.''

Of all the positive school, Garofalo has insisted most strongly on

these ideas, enlarging upon them in various proposals for the

practical reform of procedure.

The principle has made further progress since the speech of M.

Fioretti at the first Congress of Criminal Anthropology (Rome,

1885), which adopted the resolution brought forward by MM. Ferri,

Fioretti, and Venezian: ``The Congress, being convinced of the

importance of providing for civil indemnification, in the

immediate interest, not only of the injured party, but also of

preventive and repressive social defence, is of opinion that

legislation could most expeditiously enact the most suitable

measures against such as cause loss to other persons, and against

their accomplices and abettors, by treating the recovery of

damages as a social function assigned to its officials,

that is to say, to the Public Prosecutor at the bar, to the judges

in their sentences, to the prison officials in the ultimate

payment for prison labour, and in the stipulation for conditional

release.''

The classical principle that indemnification for loss caused by an

unlawful act is a purely civil and private obligation of the

offender (like that created by any breach of contract!), and that

in consequence it ought to be essentially distinct from the penal

sentence which is a public reparation, has inevitably caused the

complete oblivion of indemnification in every-day judicial

practice. For the victims of crime, finding themselves compelled

to resort to the courts, and fearing the expense of a civil trial

to give effect to the sentence of damages and interest thereon,

have been driven to abandon the hope of seeing their loss actually

and promptly compensated. Hence the necessity for some paltry

compromise, which has to be accepted almost as a generous

concession from the offender, together with the revival of private

vengeance, and a loss of confidence in the reparatory action of

social justice.

Even in the scientific domain it has come about that criminal

experts have abandoned the question of indemnification to the

civil experts, and these in their turn have almost suffered it to

pass into oblivion, inasmuch as they always regarded it as

belonging to matters of penal law and procedure.

It is only by the radical innovation of the positive school that

this legal custom has received new energy and vitality.

I do not, however, intend in this place to concern myself with

indemnification from the first point of view, namely, the forms of

procedure necessary to render it more strict and effectual, such

as the official demand and execution by the Public Prosecutor,

even when no action is brought by the injured party; the fixing of

the damages in every penal sentence; the immediate lien and claim

upon the goods of the condemned person, so as to avoid the

pretence of inability to pay; the paying down of the sum, or a

part of the salary or wages of solvent defendants; compulsory

labour by those unable to pay; the assignment of part of the

prison wages for the benefit of the victims; the payment of all or

most of the damages as a necessary condition of pardon or

conditional release; the establishment of a treasury of fines for

prepayment to the family of the victims; the liability of the

heirs of the condemned persons for indemnifications, and so forth.

All these propositions are in sharp contrast with Art. 37 of the

new Italian penal code, which has given no other guarantee to the

victims of offences than the superfluous, or ironical, or immoral

declaration that ``penal condemnation does not prejudice the right

of the injured person to restitution and indemnification''--as

though there were any doubt of the fact.

I only wish to insist on the question of principle, that is, on

the essentially public character which we assign to

indemnification as a social function. For us, to compare the

liability of the criminal to repair the loss caused by his crime

with the liability arising from breach of contract is simply

immoral.

Crime, just as it implies a social reaction in the form of an

indefinite segregation of the criminal, when the act is serious

and the author dangerous, ought also to imply a social reaction in

the shape of indemnification, accessory to segregation when that

is necessary, or adequate by itself for social defence when the

act is not serious, and the author is not dangerous. For slight

offences by occasional criminals, strict indemnification will, on

the one hand, avoid the disadvantages of short terms of

imprisonment, and will, on the other hand, be much more

efficacious and sensible than an assured provision of food and

shelter, for a few days or weeks, in the State prisons.

Indemnification may naturally take two forms, as a fine or an

indemnity payable to the State, and as an indemnity or a

reparation payable to the injured person.

It may also be added that the State should be made responsible for

the rights of the victims, and give them immediate satisfaction,

especially for crimes of violence, recouping itself from the

offender, as it does, or ought to do, for legal costs.

The evolution of punishment is a striking proof of this. First,

the reaction against crime is an entirely private concern; then it

assumes a weaker form in pecuniary reparation, whereof, by and by,

a portion goes to the State, which presently retains the whole

sum, leaving to the victim the poor consolation of proceeding

separately for an indemnification. Nothing therefore could be

more in accord with this evolution of punishment than the proposed

reform, whereby the indemnification of a merely private

injury, as it is regarded in the primitive phase of penal justice,

becomes a public function, so far as it is the legal and social

consequence of the offence.

The classical principles in this respect, and the practical

consequences which flow from them, are more like a humorous farce

than an institution of justice; and it is only the force of habit

which prevents the world from realising its full comicality.

In fine, citizens pay taxes in return for the public services of

the State, amongst which that of public security is the chief.

And the State actually expends millions every year upon this

social function. Nevertheless, every crime which is committed is

followed by a grotesque comedy. The State, which is responsible

for not having been able to prevent crime, and to give a better

guarantee to the citizens, arrests the criminal (if it can arrest

him--and seventy per cent. of _*discovered_ crimes go unpunished).

Then, with the accused person before it, the State, ``which ought

to concern itself with the lofty interests of eternal justice,''

does not concern itself with the victims of the crime, leaving the

indemnification to their prosaic ``private interest,'' and to a

separate invocation of justice. And then the State, in the name

of eternal justice, exacts from the criminal, in the shape of a

fine payable into the public treasury, a compensation for its own

defence--which it does not secure, even when the crime is only a

trespass upon private property!

Thus the State, which cannot prevent crime, and can only repress

it in a small number of cases, and which fails accordingly

in its first duty, for which the citizens pay it their taxes,

demands a price for all this! And then again the State,

sentencing a million and a half to imprisonment within ten years,

puts the cost of food and lodging on the shoulders of the same

citizens, whom it has failed either to defend or to indemnify for

the loss which they have suffered! And all in the name of eternal

retributive justice.

This method of ``administering justice'' must be radically

altered. The State must indemnify individuals for the damage

caused by crimes which it has not been able to prevent (as is

partially recognised in cases of public disaster), recouping

itself from the criminals.

Only then shall we secure a strict reparation of damage, for the

State will put in motion its inexorable fiscal machinery, as it

now does for the recovery of taxes; and on the other hand the

principle of social community of interests will be really admitted

and applied, not only against the individual but also for him.

For we believe that if the individual ought to be always

responsible for the crimes which he commits, he ought also to be

always indemnified for the crimes of which he is the victim.

In any case, as the indefinite segregation of the criminal is the

fundamental principle of the positive system of social defence

against crime, apart from the technical systems of imprisonment

and detention, so indemnification as a social function is a second

essential principle, apart from the special rules of procedure for

carrying it into effect.

These two fundamental principles of the positive system would

still be incomplete if they did not come into practical operation

according to a general rule, which leads up to the practical

organisation of social defence--that is to say, the adaptation of

defensive measures to the various criminal types.

The tendency of the classical theories on crime and prison

discipline is in sharp contrast, for their ideal is the

``uniformity of punishment'' which lies at the base of all the

more recent penal codes.

If for the classical school the criminal is but an average and

abstract type, the whole difference of treatment is, of course,

reduced to a graduation of the ``amount of crime'' and the

``amount of punishment.'' And then it is natural that this

punitive dosing should be more difficult when the punishments are

different in kind, and not very similar in their degrees of

coincident afflictive and correctional power. Thus the ideal

becomes a single punishment, apportioned first by the legislature

and then by the judge, in an indefinite number of doses.

Here and there a solitary voice has been heard, even amongst the

classical experts, objecting to this tendency towards dogmatic

uniformity; but it has had no influence. The question brought

forward by M. D'Alinge at the Prison Congress in London

_(Proceedings_, 1872, p. 327), ``whether the moral classification

of prisoners ought to be the main foundation of penitentiary

systems, either in association or on the cellular plan,'' which he

himself decided in the affirmative, was not so much as discussed,

and it was not even referred to at the successive

Congresses at Stockholm (1878), Rome (1885), and St. Petersburg

(1889). On the contrary, the Congress at Stockholm decided that,

``reserving minor and special punishments for certain slight

infractions of the law, or for such as do not point to the corrupt

nature of their authors, it is desirable to adopt for every prison

system the greatest possible legal assimilation of punishments by

imprisonment, with no difference except in their duration, and the

consequences following upon release.''[20]

[20] _Proceedings__, i. 138-70, 551-7, 561-3. Now and then,

however, a prison expert of more positive tendencies maintains

``the very great use, or rather the scientific necessity, of the

classification of prisoners as a basis for the punitive and prison

system'' (Beltrani Scalia.)

To positivists, the ``uniformity of punishment,'' even of mere

detention, appears simply absurd, since it ignores the capital

fact of different categories of criminals.

There must be homogeneity between the evil and its remedy; for, as

Dumesnil says, ``the prisoner is a moral (I would add a physical)

patient, more or less curable, and we must apply to him the great

principles of the art of medicine. To a diversity of ills we must

apply a diversity of remedies.''

In this connection, however, we must avoid the two extremes,

uniformity of punishment and the so-called individualisation of

punishment, the latter especially in fashion amongst American

prison experts. No doubt it would be a desirable thing to apply a

particular treatment to each convict, after a physical and

psychological study of his individuality, and of the conditions

which led him into crime; but this is not practicable when the

number of prisoners is very great, and the managing staff

have no adequate notions of criminal biology and psychology. How

can a governor individualise the penal treatment of four or five

hundred prisoners? And does not the cellular system, which

reduces the characteristic manifestations of the personal

dispositions of prisoners to a minimum, levelling them all by the

uniformity of routine and silence, render it impossible to observe

and get to know the special character of each condemned person,

and so specialising the discipline? Where, too, are we to find

the necessary governors and warders who would know how to

discharge this difficult duty? The solid fact that particular

houses of correction or punishment are in excellent condition when

their governors have the psychological intuition of a De Metz, a

Crofton, a Spagliardi, or a Roukawichnikoff, and languish when he

departs, strikingly demonstrates that the whole secret of success

lies in the spirit of a wise governor, skilled in psychology,

rather than in the slender virtue of the cell.

Just as an imperfect code with good judges succeeds better than a

``monumental'' code with foolish judges, so a prison system,

however ingenious and symmetrical, is worthless without a staff to

correspond.

And as the question of the staff is always very serious,

especially for financial reasons, I believe that, instead of the

impracticable idea of individualisation in punishment, we ought to

substitute that of classification, which is equally efficacious

and more easily applied. It cannot be denied that criminal

anthropologists are not all agreed on the classification of

criminals. But I have already shown that the differences

between proposed classifications are only formal and of secondary

importance; and again, the number of those who agree to the

classification which I have proposed increases day by day.

Before inquiring how we can practically organise the positive

system of social defence on the basis of this anthropological

classification of criminals, we must bear in mind two rules,

common to all the technical proposals of the same system.

First, care must be taken that segregation does not become or

continue to be (as it is too often at present) a welcome refuge of

idleness and criminal association, instead of a deprivation.

Penitentiaries for condemned prisoners--the classical prison

experts make no distinction between their cells for prisoners

before trial and those for convicts!--should not be so comfortable

as to excite the envy (a vast injustice and imprudence) of the

honest and ill-fed rural labourer vegetating in his cottage, or of

the working-man pining in his garret.

Secondly, the obligation to labour should be imperative for all

who are in prison, except in case of sickness. Prisoners should

pay the State, not as now for their tobacco and wine, but for

food, clothes, and lodging, whilst the remainder of their earnings

should go to indemnify their victims.

The classical theory declares that ``the State,'' as Pessina

writes, ``being compelled to adopt deprivation of liberty as the

principal means of penal repression and retribution, contracts an

absolute obligation to provide those whom they punish in

this way not only with bodily sustenance, but also with the means

of supplying their intellectual and moral needs.'' So the State

maintains in idleness the majority even of those who are said to

be ``sentenced to hard labour,'' and the offence, after it has

served the turn of the offender, further assures him free lodging

and food, shifting the burden on to honest citizens.

I cannot see by what moral or legal right the crime ought to

exempt the criminal from the daily necessity of providing for his

own subsistence, which he experienced before he committed the

crime, and which all honest men undergo with so many sacrifices.

The irony of these consequences of the classical theories could

not, in fact, be more remarkable. So long as a man remains

honest, in spite of pathetic misery and sorrow, the State takes no

trouble to guarantee for him the means of existence by his labour.

It even bans those who have the audacity to remind society that

every man, by the mere fact of living, has the right to live, and

that, as work is the only means of obtaining a livelihood, every

man has the right (as all should recognise the duty) of working in

order to live.

But as soon as any one commits a crime, the State considers it its

duty to take the utmost care of him, ensuring for him comfortable

lodging, plenty of food, and light labour, if it does not grant

him a happy idleness! And all this, again, in the name of eternal

and retributive justice.

It may be added that our proposals are the only way of

settling the oft-recurring question as to the economic competition

(by the price of commodities), and the moral competition (in the

regularity of work) which prison labour unjustly wages with free

and honest labour. As a matter of fact, as prisoners can only

remain idle or work, they must clearly be made to work. But they

must be made to work at trades which come less into competition

with free labour and it is especially necessary to give prisoners

wages equal to those of free labourers, on condition that they pay

the State for their food, clothes, and lodging, whilst the

remainder goes to indemnify their victims.

Over the prison gates I should like to carve that maxim of

universal application: ``He who will not work, neither shall he

eat.''

Since the novel proposals put forward half a century ago, amongst

others by doctors Georget and Brierre de Boismont, a whole library

of volumes has been published in favour of criminal lunatic

asylums. A few voices here and there were heard in opposition or

reserve, but these have almost entirely ceased.

Criminal lunatic asylums were adopted in England as early as 1786.

In 1815 Bethlehem Hospital was appropriated to criminal lunatics,

and the Broadmoor Asylum was founded in 1863. Similar asylums

exist at Dundrum in Ireland (1850), at Perth in Scotland (1858),

at New York (1874), and in Canada (1877).

On the continent of Europe there is not to this day a regular

asylum for mad criminals, though France, after an

experiment in treating condemned madmen at Bic<e^>tre, opened a

separate wing for them in the prison at Gaillon. Holland has

assigned to them the hospital of Bosmalen (Brabant); Germany has

special wards in the establishments at Waldheim, Bruchsaal, Halle,

and Hamburg; and Italy, after founding a special ward in 1876, at

the establishment for relapsed prisoners at Aversa, has converted

the Ambrogiana establishment at Montelupo in Tuscany, into an

asylum for insane convicts, and for prisoners under observation as

being of unsound mind. The new Italian penal code, though not

openly recognising the foundation of asylums for criminals

acquitted on the ground of insanity, has, in its general spirit of

eclecticism, given judges the power of handing them over to the

competent authority when it would be dangerous to release them

(Art. 46). At the Montelupo Asylum criminals acquitted on the

ground of insanity are also detained, at first under observation,

then by a definite order from the president of the Tribunal, who

can revoke his order on the petition of the family, or of the

authorities.

The inquiry into existing legislation on insane criminals,

undertaken by the ``Soci<e'>t<e'> G<e'>n<e'>rale des prisons de

Paris,'' showed that in France, Germany, Austria-Hungary, Croatia,

Belgium, Portugal, and Sweden, the authors of crimes or offences

who are acquitted on the ground of insanity are withdrawn from all

control by the judicial authority, and entrusted to the more or

less regular and effectual control of the administrative

authority. In England, Holland, Denmark, Spain, and

Russia, on the contrary, the judicial authority is empowered and

even compelled to order the seclusion of these individuals in an

ordinary or a criminal lunatic asylum.

Of the objections raised against this form of social defence

against insane criminals, I pass over that of the cost, which is

considerable; for even from the financial point of view I believe

that the actual system, which gives no guarantee of security

against madmen with criminal tendencies, is more costly to the

administration, if only by reason of the damage which they cause.

I also pass over the other objection, based on the violent scenes

which are said to be inseparable from the association of such

prisoners; for experience has shown that forebodings are ill

founded in regard to criminal asylums where the inmates are

classified according to their tendencies, under the direction of a

staff with special knowledge, who are able to prevent such

outbreaks. In ordinary asylums, on the other hand, a few insane

criminals are sufficient to render the maintenance of order very

difficult, and their inevitable and frequent outbreaks have dire

effects on the other patients.

The most serious and repeated difficulties in regard to lunatic

asylums spring from the very principles of the defensive function

of society.

It is said in the first place that the author of a dangerous

action is either a madman or else a criminal. If he is a madman,

he has nothing to do with penal justice--so Fabret, Mendel, and

others have said; his action is not a crime, for he had no

control over himself, and he ought to go to an ordinary

asylum, special measures being taken for him, as for every other

dangerous madman. Or else he is a criminal, and then he has

nothing to do with a lunatic asylum, and he ought to go to prison.

But there is a fallacy in this dilemma, for it leaves out the

intermediate cases and types, where particular individuals are at

the same time mad and criminal. And even if it were a question of

madmen only, the logical consequence would not be to bar out

special asylums, for it seems clear that if ordinary madmen (not

criminals, that is, not the authors of dangerous actions) ought to

go to an ordinary asylum, criminal madmen, or madmen with a

tendency to commit dangerous or criminal actions, as well as those

who have committed them, ought to go to a special asylum for this

category of madmen. For, on the other hand, we constantly see

that administrative authorities which observe the same rules for

the seclusion of ordinary and criminal madmen do not prevent the

release of the latter, some time after the crime, when the

disturbance of mind and even the recollection of the deed are all

but effaced; and criminal madmen commit other violent or

outrageous excesses, very soon after they are left exposed to

their diseased tendencies.[21]

[21] M. Lunier, writing in 1881 of epileptics, and the method of

treatment and aid appropriate to them, says that of 33,000 known

epileptics in France, 5,200 only are in private or public asylums,

whilst 28,000 remain with their families. From these figures it

would appear very probable that these 28,000 epileptics left at

liberty commit crimes and offences.

It may be answered that it is sufficient to have special

wings in ordinary asylums, which would also get over the

repugnance of families against the association of their quiet and

harmless patients with murderous and outrageous madmen. But

experience has already proved that these special wards do not work

well, for it is too difficult with the same staff to apply such

varied treatment and discipline as are necessary for ordinary and

criminal lunatics.

Fabret says that ``a so-called criminal, when he is seen to be

mad, should cease to be regarded as a criminal, and ought purely

and simply to resume his ordinary rights.''

But, in the first place, if a madman is distinguished from all

other inoffensive madmen by the grave fact of having killed, or

burned, or outraged, it is clear that he cannot ``purely and

simply'' return to the same kind of treatment which is given to

harmless lunatics.

The truth is that this argument applies to a large number of ideas

which science is continually weeding out, and which have proceeded

on the assumption that madness is an involuntary misfortune which

must be treated, and that crime is a voluntary fault which must be

chastised. It is evident on the other hand that crime as well as

folly, being the result of abnormal conditions of the individual,

and of the physical and social environment, is always a question

for social defence, whether it is or is not accompanied in the

criminal by a more or less manifest and clinical form of mental

malady.

The same reply holds good for the second objection to asylums for

criminal madmen, when it is said that a madman cannot, for

the sole reason that he has killed or stolen, be shut up

indefinitely, perhaps for ever, in an asylum.

Mancini, who was keeper of the seals, and at the same time a great

criminal pleader, aptly expressed the ideas of the classical

school when replying to an interpellation of Deputy Righi on the

foundation of criminal lunatic asylums:--``I could never

understand how the same court, which is obliged by law to acquit

upon a verdict of the jury that the accused is insane, and

therefore not responsible, could also decree the compulsory

seclusion in an asylum, for any period, of the same accused

person. . . . Is it because he has committed a crime? But that

is not true, for the man who did not know what he was doing, and

who for that reason has been declared innocent before the law, and

irresponsible, cannot have committed a crime. There is

consequently no legal reason why he should lose the exercise and

enjoyment of that liberty which is not denied to any other

unfortunate beings who are diseased like himself.''

It would be impossible to put more clearly the pure classical

theory on crime and punishment; but perhaps it would be equally

impossible to show less solicitude for social defence against

criminal attacks. For it is certain that the mad murderer ``has

committed no crime'' from the ethical and legal point of view of

the classical school; but it is still more certain that there is a

dead man, and a family left behind who may be ruined by the deed,

and it is very probable that this homicide, ``innocent before the

law,'' will renew his outrage on other victims--and at any

rate they are innocent.

And as for the indefinite period of seclusion in an asylum, it is

well to remember, from the point of view of individual rights,

that the formula with which a mad criminal is committed to an

asylum ``during her Majesty's pleasure'' had its origin in

England, in the classic land of the _habeas corpus_--the sheet

anchor of the ordinary citizen. Again, it is easy to see that the

indefinite seclusion of mad criminals is rendered necessary by the

same reasons which create the fundamental rule for criminals of

every kind. It may therefore come to a question of allowing or

disallowing the general principles of the positive school. But it

cannot be denied that they are unassailable, both in theory and in

practice. Crime is a phenomenon as natural as madness--the

existence of society compels the organised community to defend

itself against every anti-social action of the individual--the

only difficulty is to adapt the form and duration of this self-

defence to the form and intensity (the motives, conditions, and

consequences) of the action. Indefinite seclusion, therefore, in

a special establishment is inevitable on account of the special

condition of these individuals.

The practical considerations of social defence are so strong that

the great majority of classical criminal experts now accept

criminal lunatic asylums, in spite of their manifest contradiction

of the formal theories of moral responsibility, on the strength of

which these asylums were, and still are, opposed by the

intransigents of the classical school. This is why the new

Italian penal code, in spite of its progressive aim, had

not the courage in 1889 to adopt them frankly; and in the

definitive text, as in the ministerial draft, it took refuge in an

eclectic arrangement which has already met with a crowd of

obstacles, due to the vagueness of the principles inspiring the

code.

These criminal lunatic asylums ought to be of two kinds, differing

in their discipline, one for the insane authors of serious and

dangerous crimes, such as homicide, incendiarism, rape, and the

like; and the other for slighter crimes, such as petty theft,

violent language, outrages on public decency, and the like. For

the latter, seclusion should be shorter than for the others. Thus

in England convicts are sent to the State Asylum at Broadmoor,

whilst minor offenders are sent to a county asylum.

Persons thus confined should be (1) prisoners acquitted on the

ground of insanity, or sentenced for a fixed period, at the

preliminary inquiry; (2) convicts who become insane during the

expiation of their sentence; (3) insane persons who commit crimes

in the ordinary asylums; (4) persons under observation for weak

intellect in special wards, who have been put on their trial, and

given grounds for suspecting madness.

At Broadmoor, on December 31, 1867, there were 389 male patients

and 126 female; and in 1883 there were 381 males and 132 females,

thus classified:--

Mad Criminals. Male. Female.

Murder ... ... ... ... ... 155 ... 85

Attempted murder ... ... ... 111 ... 18

Parricide ... ... ... ... ... 7 ... 6

Theft ... ... ... ... ... 23 ... 3

Mad Criminals. Male. Female.

Incendiarism ... ... ... ... 24 ... 1

Military offences ... ... ... 21 ... --

Attempted suicide ... ... ... 3 ...

In Germany, in the prison at Waldheim, the proportion of mad

criminals to the corresponding classes of ordinary criminals was

as follows:--

Percentage

Crimes. In Prison. Insane.

Homicide, actual or attempted ... 74 ... 17.6

Murder and malicious wounding ... 51 ... 9.8

Highway robbery with violence ... 64 ... 12.5

Incendiarism ... ... ... ... ... 219 ... 6.8

Rape ... ... ... ... ... ... 52 ... 5.8

Indecent assault... ... ... ... 299 ... 5.7

Perjury ... ... ... ... ... ... 220 ... 2.7

Military crimes ... ... ... ... 23 ... 21.7

Crimes against property ... ... ... 5,116 ... 1.9

Other offences ... ... ... ... 158 ... 0.6

---- ----

Total ... ... 6,276 ... 2.7

That is to say, there was (1) a very large proportion of madmen

amongst the military offenders, which may point to the effect of

military life, or else a careless selection for conscription, or

both causes taken together; and (2) a greater proportion of mad

criminals amongst the more serious offenders, partly because the

authors of crimes of violence are subjected to more strict and

frequent observation for madness.

It seems to me that this fact, which is also confirmed by the

figures for England, is the most cogent argument in favour of

criminal lunatic asylums.

For born criminals, since, as Dr. Maudsley says, we are face to

face, if not exactly with a degenerate species, at least with a

degenerate variety of the human species, and the problem is

to diminish their number as much as possible, a preliminary

question at once arises, namely, whether the penalty of death is

not the most suitable and efficacious form of social defence

against the anti-social class, when they commit crimes of great

gravity.

It is a question which for a century past has divided the criminal

experts and wearied the general public, with perhaps more

sentimental declamations than positive contributions; a question

revived by the positive school, which, however, only brought it

forward, without discussing it, at the first Congress on Criminal

Anthropology at Rome; whilst it has been recently settled by the

new Italian penal code, which is the first code amongst the

leading States to decree (January 1, 1890) the legal abolition of

the death penalty, after its virtual abolition in Italy since the

year 1876, except for military crimes.

Amongst the classical experts, as amongst the positivists, there

are those who would abolish and those who would retain the death

penalty; but the disagreement on this subject is not equally

serious in the two camps. For whilst the classical abolitionists

almost all assert that the death penalty is inequitable, the

positivists are unanimous in declaring it legitimate, and only a

few contest its practical efficacy.

It seems to me that the death penalty is prescribed by nature, and

operates at every moment in the life of the universe. Nor is it

opposed to justice, for when the death of another man is

absolutely necessary it is legitimate, as in the cases of lawful

self-defence, whether of the individual or of society,

which is admitted by classical abolitionists such as Beccaria and

Carrara.

The universal law of evolution shows us also that vital progress

of every kind is due to continual selection, by the death of the

least fit in the struggle for life. Now this selection, in

humanity as with the lower animals, may be natural or artificial.

It would therefore be in agreement with natural laws that human

society should make an artificial selection, by the elimination of

anti-social and incongruous individuals.

We ought not, however, to carry these conclusions too far, for

every problem has its relative bearings, and positive observation,

unlike logic, does not admit simple and exact solutions. It must

be observed that this idea of artificial selection, though true,

would lead to exaggerated conclusions, if it were carried into the

sociological field without reserve, and without the necessary

balance between the interests and rights of the community and of

individuals. If this idea were taken absolutely, indeed, it would

render legitimate and even obligatory an ultra-Spartan elimination

of all children born abortive or incurably diseased, or anti-

social through their idiotcy or mental insanity.

On the other hand, to recognise that the death penalty may be

legitimate as an extreme and exceptional measure is not to

acknowledge that it is necessary in the normal conditions of

social life. Now it cannot be questioned that in these normal

conditions society may defend itself otherwise than by death, as

by perpetual seclusion or transportation, the failure of

which, by the escape of convicts, is too rare to be decisive

against it.

The preventive and deterrent efficacy of the death penalty is very

problematical when we examine it not by our own impressions as

average human beings, calmly and theoretically, but with the data

of criminal psychology, which is its only true sphere of

observation. Every one who commits a crime is either carried away

by sudden passion, when he thinks of nothing, or else he acts

coolly and with premeditation, and then he is determined in his

action, not by a dubious comparison between the death penalty and

imprisonment for life, but simply by a hope of impunity. This is

especially the case with born criminals, whose main psychological

characteristic is an excess of improvidence, combined with moral

insensibility.

If a convict tells us that he fears death, this merely means that

he has the momentary impression, which cannot, however, restrain

him from crime, for here again, by the same psychological

tendency, he will be subject only to the criminal temptation.

And if it is true that, when the criminal has been tried and

condemned, he fears death more than imprisonment for life (always

excepting condemned suicides, and those who by their physical and

moral insensibility laugh at death up to the foot of the

scaffold), it is none the less necessary to try and to condemn

them.

Indeed statistics prove that the periodic variations of the more

serious crimes is independent of the number of

condemnations and executions, for they are determined by very

different causes. Tuscany, where there has been no death penalty

for a century, is one of the provinces with the lowest number of

serious crimes; and in France, in spite of the increase of general

crime and of population, charges of murder, poisoning, parricide,

and homicide, dropped from 560 in 1826 to 430 in 1888, though the

number of executions diminished in the same period from 197 to 9.

The death penalty is an easy panacea, but it is far from being

capable of solving a problem so complex as that of serious crime.

The idea of killing off the incorrigibles and the born criminals

is easily conceived, and Diderot, in his Letter to Landois,

maintained that it was a natural consequence of the denial of

free-will, saying: ``What is the grand distinction between man

and man? Doing good and doing harm. The man who does harm ought

to be extinguished, not punished.'' But as against this too

facile notion we must look to experience, and to the other

material and moral conditions of social life, for the necessary

balance and completion.

I will not further discuss the death penalty, for it is by this

time an exhausted question from the intellectual standpoint, and

has passed into the domain of prejudice for or against, and this

prejudice is concerned rather with the more or less repugnant

method of execution than with the penalty itself. In its favour

there is the absolute, irrevocable, and instantaneous elimination

from society of an individual who has shown himself absolutely

unadaptable, and dangerous to society. But I hold that, if we

would draw from the death penalty the only positive utility

which it possesses, namely, artificial selection, then we must

have courage enough to apply it resolutely in all cases where it

is necessary from this point of view, that is to say, to all born

criminals, who are the authors of the most serious crimes of

violence. In Italy, for example, it would be necessary to execute

at least one thousand persons every year, and in France nearly two

hundred and fifty, in place of the annual seven or eight.

Otherwise the death penalty must be considered as an unserviceable

and neglected means of terror, merely to be printed in the codes;

and in that case it would be acting more seriously to abolish it.

So regarded it is too much like those motionless scarecrows which

husbandmen set up in their fields, dotted about with the foolish

notion that the birds will be frightened away from the corn. They

may cause a little alarm at first sight; but by and by the birds,

seeing that the scarecrow never moves and cannot hurt them, lose

their fear, and even perch on the top of it. So it is with

criminals when they see that the death penalty is never or very

rarely applied; and one cannot doubt that criminals judge of the

law, not by its formulation in the codes, but by its practical and

daily application.

Since the deterrent efficacy of punishments in general, including

the death penalty, is quite insignificant for the born criminals,

who are insensible and improvident, the rare cases of execution

will certainly not cure the disease of society. Only the

slaughter of several hundred murderers every year would have

a sensible result in the way of artificial selection; but

that is more easily said than done. And I imagine that, at normal

periods, in no modern and civilised State would a series of daily

executions of the capital sentence be possible. Public opinion

would not endure it, and a reaction would soon set in.[22]

[22] In every case I think that executions should take place in

prison, and by means of a poison administered as soon as the

sentence takes effect. In North America electricity has been

tried, but executions by this process appear to be as horrible and

repulsive as those by the guillotine, the garotte, the scaffold,

or the rifle. (See the _Medico-Legal Journal_ of New York, March

and September, 1889.) From the ``Summarised Information on Capital

Punishment,'' published by the Howard Association in 1881, I take

the following figures on capital punishment in Europe and

America:--

Death

State. Sentences. Executions.

Austria (1870-9) ... ... ... ... ... 806 ... 16

France (1870-9) ... ... ... ... ... 198 ... 93

Spain (1868-77) ... ... ... ... ... 291 ... 26

Sweden (1869-78) ... ... ... ... ... 32 ... 3

Denmark (1868-77) ... ... ... ... ... 94 ... 1

Bavaria (1870-9) ... ... ... ... ... 240 ... 7

Italy (1867-76) ... ... ... ... ... 392 ... 34

Germany, North (1869-78) ... ... ... 484 ... 1

England (1860 79) ... ... ... ... ... 665 ... 372

Ireland (1860-79) ... ... ... ... ... 66 ... 36

Scotland (1860-79) ... ... ... ... ... 40 ... 15

Australia and New Zealand (1870-9) ... 453 ... 123

United States, about 2,500 murders annually--about 100

executions and 100 lynchings annually.

In Finland, between 1824 and 1880 there was no execution. In

Holland, Portugal, Roumania, and Italy, capital punishment is

abolished by law; and in Belgium virtually. Switzerland also has

abolished it, but a few cantons, under the influence of a few

atrocious and recurrent crimes, revived it in their codes, but did

not carry it out. In the United States it has been abolished in

Michigan, Wisconsin, Rhode Island, and Maine. An inquiry into the

legislation and statistics relating to murder in Europe and

America was instituted by Lord Granville in July, 1880 and the

results were published in 1881. (``Reports on the Laws of Foreign

Countries respecting Homicidal Crime.'')

In a manuscript register of executions in the Duchy of Ferrara

between 970 and 1870, I found that, excluding the nineteenth

century, there were 5,627 executions in 800 years (3,981

for theft, and 1,009 for homicide), that is an average of 700 in

each century, in the city of Ferrara alone. And at Rome,

according to the records of the Convent of St. John the Beheaded,

between 1500 and 1770 there were 5,280 executions, or 1,955 in

each century, in the city of Rome alone. Now, if we consider the

proportion of population in Ferrara and Rome to that of Italy as a

whole, we reach an enormous number of executions in former

centuries, which can scarcely have been fewer than four hundred

every year.

These were serious applications of the death penalty, to which we

certainly owe in some degree the purification of society by the

elimination of individuals who would otherwise have swelled their

criminal posterity.

In conclusion, if we wish to treat the death penalty seriously,

and derive from it the only service of which it is capable, we

must apply it on this enormous scale; or else, if it is retained

as an ineffectual terror, we should be acting more seriously if we

were to expunge it from the penal code, after excluding it from

our ordinary practice. And as I shall certainly not have the

courage to ask for the restoration of these medi<ae>val modes of

extermination, I am still, for the practical considerations above

mentioned, a convinced abolitionist, especially for such countries

as Italy, where a more or less artificial and superficial current

of public opinion is keenly opposed to capital punishment.

Setting aside the death penalty, as unnecessary in normal

times, and inapplicable in the only proportions which would make

it efficacious, for the born criminals who commit the most serious

crimes, there remains only a choice between these two modes of

elimination--transportation for life and indefinite seclusion.

This is the only choice for the positivists; for we cannot attach

much importance to the opinion of the German jurists,

Holtzendorff, Geyer, and others, who would do away with perpetual

imprisonment altogether. Professor Lucchini took up this theory

in Italy, saying that the personal freedom of the convict ought to

be limited in its exercise, but not suppressed as a right, and

that imprisonment for life destroys ``the moral and legal

personality of the criminal in one of its most important human

factors, the sociable instinct.'' He added that punishment

``ought not to become exhausted by excess of duration.''

Surely it is not speaking seriously to say that the right of the

individual cannot be suppressed if necessity demands it, when we

see it done every day in cases of legitimate self-defence; and

that punishment is exhausted by excess of duration, when it is

precisely the duration of banishment from one's kind which

constitutes the only real efficacy of punishment; and to speak of

the sociable instinct in connection with the most anti-social

criminals.

And it is only by oblivion of the elementary and least contestable

data of criminal bio-psychology that the exclusion of all life-

punishments can be maintained, on the ground that this perpetuity

``is contrary to the reformative principle of punishment, to the

principle that punishment ought to aim not only at

afflicting the prisoner, but also at arousing in him, if

possible, the moral sense, or at strengthening him, and opening up

to him a path by which he can hope to be readmitted into society,

amended and rehabilitated. Perpetuity of punishment excludes this

possibility.''

The framers of the Dutch penal code replied to these observations

of Professor Pols, first in the name of common sense, that

``punishment is not inflicted for the benefit of the prisoner, but

for that of society,'' and secondly, with something of irony, that

``even for the sake of the abolition of capital punishment, and to

prevent a reaction in favour of this punishment, we must uphold

the right of shutting up for ever the few malefactors whose

release would be dangerous.''

It is entirely futile to consider the amendment of criminals as

opposed to imprisonment for life, when it is known that born

criminals, authors of the most serious crimes, for whom such

punishment is reserved, are precisely those whose amendment is

impossible, and that the moral sense attributed to them is only a

psychological fallacy of the classical psychologist, who

attributes to the conscience of the criminal that which he feels

in his own honest and normal conscience.

But it is easy enough to see that this opposition to perpetual

detention, though it has remained without effect, as being too

doctrinaire and sentimental, is only a symptom of the historical

tendency of the classical schools, entirely in favour of the

criminal, and always tending to the relaxation of punishments.

The interests of society are too much disregarded when it

is sought to pass from the abolition of capital punishment to that

of imprisonment for life. If the tendency is not checked, we may

expect to see some classical expert demanding the abolition of all

punishment for these unfortunate criminals, with their delicate

moral sensibilities!

The question, therefore, is between transportation or indefinite

seclusion.

Much has been written for and against transportation, and there

was a lively discussion of the problem in Italy, some twenty years

ago, between M. Beltrani Scalia, a former director-general of

prisons, and the advocates of this form of elimination of

criminals. Without going into the details of the controversy, it

is evident that the experience of countries like England, which

for a long time transported its criminals at a cost of hundreds of

millions, and then abandoned the practice, is in itself a

noteworthy example.

Yet it is only an objection, so far as it goes, against

transportation as formerly practised, that is to say, with

enormous prisons built in distant lands. M. Beltrani Scalia

justly said that we might as well build them at home, for they

will cost less and be more serviceable. The example of France in

its practical application of this policy is not encouraging.

However, there is in transportation, as in the death penalty, an

unquestionable element of reason. 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, Leveill<e'>; 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 Soci<e'>t<e'> G<e'>n<e'>rale 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 B<e'>renger 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 medi<ae>val 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.[23]

[23] 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 B<e'>renger; 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.

M. Liszt proposes that the indeterminate character of punishment